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International Law and “the Interests: ” the Law of the Seabed

Published online by Cambridge University Press:  28 March 2017

Louis Henkin
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Type
Editorial Comment
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American Journal of International Law , Volume 63 , Issue 3 , July 1969 , pp. 504 - 510
Copyright
Copyright © The American Society of International Law 1969

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References

1 “Petroleum Resources under the Ocean Floor,” an Interim Report of the National Petroleum Council, July 9, 1968 (hereafter referred to as NPC Report). Compare the Interim Report of the Committee on Deep Sea Mineral Resources of the American Branch of the International Law Association, July 19, 1968.

2 NPC Report 10. A similar proposal by the American Branch of the I.L.A., note 1 above, adds a provisional limit, out to the 2,500-meter isobath or 100 miles from shore, whichever is larger. Where “the continent drops off sharply from near the present coastline to the abyssal ocean floor,” the NPC report would give the coastal state an area of the abyssal ocean floor contiguous to the continent. NPC Report 9.

3 Appendix B, also reproduced in the report of the American Branch of the I.L.A., note 1 above.

4 1956 I.L.C. Rep. 41-42, TJ.N. General Assembly, 11th Sess., Official Records, Supp. No. 9, U.N. Doc. A/3159 (1956); 51 A.J.I.L. 245 (1957). By the qualification ” t o certain extent,” apparently, the Commission particularly contemplated including areas that geologically are not continental shelves at all, for example, the Persian Gulf. Ibid. In 1966, Mr. Arthur Dean, who had represented the United States at the Geneva Conference, wrote that “by its terms” the convention “applies only to geological continental shelves.” See The Law of the Sea 246 (L. M. Alexander, editor, 1967).

5 1956 I.L.C. Yearbook (I) 135. Although Dr. Garcia-Amador is prominently cited and quoted in the NPC Report, this statement is not mentioned. It is surprising generally to find the NPC Report claiming major support for its interpretation of the 1958 Convention in the fact that the definition in the convention reflected a recommendation of the Inter-American Specialized Conference at Ciudad Trujillo, in March, 1956. The Conference can claim credit for inspiring the addition of the exploitability clause to the 200-meter isobath, but hardly for what the Petroleum Council claims. In the International Law Commission Dr. Garcia-Amador did indeed propose also what was basically the conclusion which the Conference resolved to ‘ ‘ submit for consideration by the American states“: his proposal would have applied the draft convention to “submarine areas,” defined as referring “to the soil and subsoil of the submarine shelf, continental and insular terrace, or other submarine areas, adjacent to the coastal State,” up to the 200-meter isobath or beyond it if exploitation becomes practicable. (It was in regard to that broader definition that Dr. Garcia-Amador made the statement quoted in the text.) The International Law Commission, however, declined to adopt this language and retained the term “the continental shelf.” (Dr. Garcia- Amador himself withdrew his proposed language, but voted against the final version of the definition. Loo. cit. at 140.) Even if his proposal had been adopted, there is nothing to support the view that it would have covered the large area claimed by tho Petroleum Council. Few of the participants at Ciudad Trujillo, in the International Law Commission, or at the Geneva Conference, seemed agreed on the import of the various geological terms used. Dr. Garcia-Amador's statement, quoted in the text, suggests that Ms proposal would apply to the seabed only out to where the continental slope “began,; other statements seem to suggest that part of the slope might be included (ibid, at 131); none supports a claim to include the entire submerged continental land-mass. And, as Dr. Garcia-Amador's statement, and others, make clear, seabed, whatever its geological designation, would be included only if and to the extent thatit is “adjacent to the coastal state“; Dr. Garcia-Amador told the Commission that that meant within 25 miles. (I note, too, that the Ciudad Trujillo resolution submitted for consideration a conclusion that would have had the seabed in question “appertain exclusively” to the coastal state and be “subject to its jurisdiction and control“; the 1958 Convention gave the coastal state only sovereignty over the seabed for the purposes of exploring it and exploiting its natural resources. It seems unlikely that at Ciudad Trujillo the United States agreed to a resolution that might bar the whole submerged land-mass off foreign shores to all American uses.)

6 North Sea Continental Shelf Cases, 1969, Opinion of the Court (mimeographed text), p. 35; 8 Int. Legal Materials 340 (1969); [1969] I.C.J. Rep. 3, reprinted below, p. 591. One might add that, whatever the technological promises, it is open to serious question whether all the waters down to the deep seabed now “admit of exploitation” within the meaning of the convention. Unilateral interpretation of the convention, moreover, while it will tend to bind the United States and estop it from challenging similar claims by others, will not necessarily be accepted even by the other parties to the convention. And most nations of the world have not adhered to the convention. They have generally accepted the doctrine of the continental shelf, but they would surely not feel bound by an exaggerated extension of it based on an exaggerated reading of a convention to which they are not party.

7 Perhaps the oil companies have some fear, too, that payments made to an international regime would not qualify for deduction or credit under the tax laws of the United States, and efforts to obtain legislation to that end might focus attention on their tax status, which has been under attack.

8 I discuss the competing interests at length in a monograph, Law for the Sea's Mineral Resources, Columbia University Institute for the Study of Science in Human Affairs (1968); also in “Changing Law for the Changing Seas,” in Uses of the Seas 69 (Gullion, ed.), The American Assembly, 1968, reviewed below, p. 666.

9 “Our Nation and the Sea: A Plan for National Action,” Report of the Commission on Marine Science, Engineering and Resources, January, 1969.

10 See my monograph, note 8 above, at pp. 45-48. The American Assembly has also come out in favor of a narrow shelf and an intermediate zone. See Report of the Thirty-Third American Assembly on Uses of the Seas, May 2-5, 1968, pp. 6-7.

11 See, e.g., ‘’ The United Nations and the Bed of the Sea,'’ Nineteenth Report of the Commission to Study the Organization of Peace, March, 1969. Inter alia, the Commission proposes revision of the Convention on the Continental Shelf to limit the shelf to the 200-meter isobath or 50 miles from the coast, whichever reaches farther. It also proposes that an agency be created by the United Nations to establish and administer a regime for the deep seabed, which would “manage the leasing of the seabed beyond the recognized national jurisdiction of all States.” Ibid, at 27.