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The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session *

Published online by Cambridge University Press:  28 March 2017

John R. Stevenson  and
Bernard H. Oxman
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Extract

The second substantive session of the Third United Nations Conference on the Law of the Sea was held at Geneva from March 26 to May 10, 1975. It was decided at the outset that this would be a negotiating session. There was no general debate. Few formal meetings were held. Even informal working groups of the whole tended to rely on smaller groups the work of which was necessarily removed from public view. Progress, in many respects substantial progress, was made toward producing generally acceptable texts in this way. However, the Conference did not complete the negotiation of a new Law of the Sea Convention or approved texts.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 4 , October 1975 , pp. 763 - 797
Copyright
Copyright © American Society of International Law 1975

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References

1 Letter of May 19, 1975 from the President of the Conference to the President of the General Assembly, UN Doc. A/10121, June 18, 1975.

2 Informal Single Negotiating Text, A/CONF.62/WP.8, May 7, 1975 (hereinafter SNT); reprinted at 14 ILM 682 (1975). Its three PARTS contain the submissions of the Chairmen of the three Main Committees; these in turn are also divided into parts. The three main Parts are referred to herein in upper case.

3 SD.Gp/2nd Session/No.1/Rev.5, May 1, 1975; reprinted at 14 ILM 762 (1975). Informal Single Negotiating Text (Settlement of Disputes). A/CONF.62/WP.9, July 21, 1975.

4 A/CONF.62/C.1/L.12, March 21, 1975.

5 SNT, Part I, Art. 22.

6 GA Res. 2574D (XXIV); GAOR, 24th Sess., Supp. 30, at 11, UN Doc. A/7630 (1969).

7 TA/CONF.62/C.2/WP.1.

8 Ibid.

9 A/CONF.62/C.2/L.88, April 18, 1975.

10 Article 5 provides that in the case of islands situated on atolls or of islands having fringing reefs, the baseline shall be the seaward edge of the reef. Article 6 provides that straight baselines may connect appropriate points along the furthest seaward extent of the low-water line notwithstanding subsequent regression of the low-water line where, because of the presence of a delta or other natural conditions, the coastline is highly unstable. Some attempts were made to define historic bays with greater precision; it is indicative of the general workmanlike atmosphere that after a few meetings on the issue it was recognized that the effort could be very time consuming and might adversely affect progress. Attempts by one delegation to introduce a new open-ended concept of historic waters met widespread opposition.

Article 10, one of a number that takes account of new technological developments, provides that offshore installations and artificial islands shall not be considered as permanent harbour works for purposes of measuring the territorial sea; it is the logical companion of Article 48 (economic zone), which expands the scope of a similar rule in Article 5 of the Continental Shelf Convention and provides that artificial islands, installations, and structures have no territorial sea of their own and that their presence does not affect the delimitation of the territorial sea or other forms of coastal state jurisdiction.

A similar adaptation to change in the rules of innocent passage is effected in Article 22, also based on the work of an informal Committee II group. The article repeats the rule in Article 16(2) of the Territorial Sea Convention that the coastal state may take the steps necessary to prevent any breach of the conditions to which admission to internal waters is subject, but also extends it to “ships proceeding to . . . a call at a port facility outside internal waters.”

11 15 UST 1606; TIAS No. 5639; 516 UNTS 205; 52 AJIL 851 (1958).

12 Id., Art. 14.

13 Those who recognize the humanitarian origins of the law of the sea of ancient times and its implicit “duty to rescue” are likely to welcome new textual confirmation in the rule that the list does not apply to specified activities “for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.”

14 See Territorial Sea Convention, note 11 supra, Art. 24.

15 SNT, Part II, Art. 38.

16 Ibid.

17 Territorial Sea Convention, note 11 supra, Art. 16(4).

18 SNT, Part II, Arts. 45(2), 48.

19 Id., Art. 68 (applicable within the 200–mile zone pursuant to Art. 62); see SNT, Part III, Protection and Preservation of the Marine Environment, Arts. 4, 17, 41.

20 SNT, Part II, Art. 47(2).

21 See SNT, Part III, Protection and Preservation of the Marine Environment, Arts. 4, 20, 26, 41.

22 SNT, Part II, Art. 47( 3).

23 Article 45 reads in pertinent part as follows:

1. In an area beyond and adjacent to its territorial sea, described as the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether renewable or non-renewable, of the bed and subsoil and the superjacent waters;

(b) exclusive rights and jurisdiction with regard to the establishment and use of artificial islands, installations and structures;

(c) exclusive jurisdiction with regard to:

(i) other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; and

(ii) scientific research;

(d) jurisdiction with regard to the preservation of the marine environment, including pollution control and abatement;

(e) other rights and duties provided for in the present Convention.

24 Article 71 applies the Article 49 rule mutatis mutandis to research concerning the continental shelf and undertaken there.

25 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil thereof, 23 UST 701, TIAS No. 7337 (1971). The treaty entered into force in 1972 and will, by its terms, be reviewed in 1977.

26 SNT, Part II, Art. 47( 1).

27 Id., Art. 45( 1) (a).

28 Ibid.

29 Id., Arts. 50, 51.

30 Id., Art. 50.

31 Id., Art. 51.

32 Id., Art. 53. With respect to enumerated highly migratory species such as tuna, the coastal state and other states whose nationals fish such species in the region are required to “co-operate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone.” The Evensen sixth revision text does not contain a precise proposed article on highly migratory species, which could not be completed due to continuing differences.

33 Id., Art. 54. With respect to anadromous species such as salmon, the states “in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks,” may establish total allowable catches, regulate fishing for such stocks within their economic zones and beyond economic zones of other states, and .have the duty to cooperate in minimizing economic dislocation in other states fishing these stocks, which is the only exception to the rule that fishing for anadromous stocks “shall be conducted only in waters within exclusive economic zones” (a reference intended in the Evensen text to embrace territorial and internal waters as well). With respect to anadromous stocks migrating through their economic zones, other states must “cooperate with the State of origin with regard to the conservation and management of such stocks.”

34 Id., Art. 55. With respect to catadromous species such as eels, there is a provision giving special rights to the “coastal State in whose waters catadromous species spend the greater part of their life cycle.”

35 Id., Art. 53(3).

Nothing in the present Convention shall restrict the right of a coastal State or international organization, as appropriate, to prohibit, regulate and limit the exploitation of marine mammals. States shall co-operate either directly or through appropriate international organizations with a view to the protection and management of marine mammals.

36 Id., Art. 56. This article excludes sedentary species of the continental shelf from the application of the economic zone chapter, thus leaving the sovereign rights of coastal states under Article 63 unqualified by the economic zone duties.

37 Id., Arts. 57–59; see also Art. 51(3).

38 Id., Art. 60.

39 Where fisheries are concerned, delimitation is not the only issue. There is an obvious need to agree upon coordinated conservation and allocation measures for stocks which migrate across national limits; Article 52 confirms this need. To some extent, similar considerations are relevant in the case of fluid nonliving resources.

40 Convention on the Continental Shelf; 15 UST 471; TIAS No. 5578; 499 UNTS 311; 52AJIL858 (1958). Art. 6.

41 North Sea Continental Shelf, Judgment, [1969] ICJ Rep. 3, (Special Agreements submitting the cases at 7–8; findings at 53–54). The Special Agreements submitting the cases requested the Court to decide what “principles and rules of international law are applicable to the delimitation” as between the parties, specifying that the parties would “delimit the continental shelf in the North Sea as between their countries by agreement in pursuance of the decision requested” from the Court. The Court decided that the equidistance rule was not opposable to the Federal Republic of Germany, which was not a party to the Continental Shelf Convention; found that there is “no other single method of delimitation the use of which is in all circumstances obligatory”; and elaborated substantive criteria based on a theory of “natural prolongation” to be applied by the Federal Republic, Denmark, and the Netherlands in delimiting “by agreement” their respective areas of jurisdiction. SNT Article 61(1) draws upon that part of paragraph C(l) of the Judgment which states, “delimitation is to be effected by agreement in accordance with equitable principles, and taking into account all of the relevant circumstances,” omits the substantive geographic qualifications and criteria in the Judgment, but adds the language, “employing, where appropriate, the median or equidistance line.”

42 Annex I, Art. 17(3) (b) of the dispute settlement group text and SNT (Settlement of Disputes) Art. 18(2)(b), note 3 supra, contain a qualified exception to the compulsory procedures in this connection.

43 After five years of production at a site, the coastal state’s obligation to share revenues would begin at one percent of wellhead value, and thereafter increase by one percent per year until it reached five percent in the tenth year, after which it would remain at five percent. Experts on the U.S. Delegation calculated that for a field producing 700 million barrels of oil through a 20–year depletion period, assuming a value of $11 per barrel, the total amount of the revenue sharing would be $130 million. The oil and other minerals themselves, and additional revenues collected by the coastal state, would of course remain with the coastal state.

44 Convention on the High Seas; 13 UST 2312; TIAS No. 5200; 450 UNTS 82; 52 AJIL 842 (1958).

45 Notable elaborations are contained in Article 80, which develops the obligations of the flag state with respect to ships flying its flag; Article 94, which provides for international cooperation in the suppression of illicit traffic in narcotic drugs and psychotropic substances; Article 95, which subjects any person engaged in “unauthorized broadcasting” on the high seas to arrest and prosecution, inter alia, by a state “where the transmissions can be received or . . . where radio communication is suffering interference”; Article 97, which applies the coastal state right of hot pursuit to violations of applicable coastal state laws and regulations in the economic zone or on the continental shelf, including safety zones around continental shelf installations; and Article 100, which expands the obligation of flag states to ensure that their vessels do not break or injure submarine cables and pipelines.

46 See notes 32–36, supra.

49 SNT, Part II, Art. 111.

48 “Transit States may request the land-locked States concerned to co-operate in constructing or improving” means of transport to give effect to the right of access. Id., Art. 113.

49 Id., Art. 118.

50 Id., Art. 120.

51 Id., Art. 119.

52 Id., Art. 125.

53 Id., Art. 124.

54 Id., Art. 128.

55 Id, Art. 123.

56 Id., Art. 122.

57 Id, Art. 118(7).

58 On a more technical level, since even low tide elevations along the coast can be used for establishing baselines under some circumstances (see Arts. 4 and 12), Article 132 arguably should not affect the use of rocks in such situations. Moreover, the relationship to the archipelago articles is unclear; surely, encouraging governments whose populations are dependent on the resources around small islands to seek to resolve their problem through expansion of the archipelago concept would have exactly the opposite effect of that intended by Article 132, and could further complicate the already uncertain situation regarding the ultimate acceptability of an archipelago concept.

59 SNT, Part III, Protection and Preservation of the Marine Environment, Art. 2.

60 Id., Art. 3.

61 Id., Art. 4.

62 Ibid.

63 Ibid.

64 Id., Art. 6.

65 Id., Art. 8.

66 Id., Art. 9.

67 Id., Art. 10.

68 National Environmental Policy Act of 1969, sec. 102; 83 Stat. 853; 42 U.S.C. 4332.

69 SNT, Part III, Protection and Preservation of the Marine Environment, Art. 20.

70 Id., Art. 17; see also SNT, Part II, Art. 68.

71 Id., Art. 19.

72 Id., Art. 21.

73 Id., Art. 16.

74 Id., Art. 19(3).

75 Id., Art. 20(3).

76 International Convention for the Prevention of Pollution from Ships, 1973, IMCO Doc. MP/CONF./WP.35, Nov. 2, 1973 (not yet in force); 12 ILM 1319 (1973).

77 See Territorial Sea Convention, note 11 supra, Art. 16; SNT, Part II, Art. 22(2). The 1973 Marine Pollution Convention, note 76 supra, refers to specified enforcement actions by the port state in Articles 5 and 6.

78 Territorial Sea Convention, note 11 supra, Arts. 1, 14, 17; see SNT, Part II, Arts. 1, 14, 18.

79 SNT, Part III, Protection and Preservation of the Marine Environment, Art. 26.

80 Id., Art. 27.

81 Id., Art. 25.

82 Id., Arts. 27–28.

83 Id., Art. 29.

84 Id., Art. 28.

85 Ibid.

86 Id., Art. 30.

87 Id., Art. 31.

88 Id., Art. 32.

89 Id., Art. 28.

90 Id., Art. 39; see SNT, Part II, Arts. 39, 41.

91 See SNT, Part II, Arts. 125, 128–29.

92 SNT, PART III, Protection and Preservation of the Marine Environment. Article 44 provides:

Any dispute with respect to the interpretation or application of the provisions of this Convention with respect to the preservation of the marine environment shall be resolved by the dispute settlement procedures contained in Chapter of this Convention.

93 Id., Art. 41.

94 Id., Art. 42.

95 Id., Art. 43.

96 Id., Art. 44, note 92 supra.

97 A/CONF.62/C.3/L.13/Rev.1, April 4, 1975; Rev. 2, April 21, 1975; see the earlier Caracas text, A/CONF.62/C.3/L.13, discussed by the authors at 69 AJIL 28 (1975).

98 A/CONF.62/C.3/L.28, April 24, 1975, amending the Caracas text, A/CONF.62/ C.3/L.19, discussed by the authors at 69 AJIL 28 (1975).

99 SNT, Part II, Art. 67.

100 A/CONF.62/C.3/L.26, April 3, 1975.

101 A/CONF.62/C.3/L.29, May 6, 1975.

102 SNT, Part III, Marine Scientific Research, Arts. 15–17, 22.

103 Id., Art. 23.

104 Id., Art. 18.

105 Id., Art. 21.

106 Id., Art. 20.

107 Id., Art. 37.

108 Id., Arts. 25, 26; see SNT, Part I, Art. 10; Part II, Art. 75.

109 Id., Arts. 27–33; see SNT, Part II, Arts. 48, 66, 75.

110 Id., Arts. 34–36.

111 SNT, Part III, Development and Transfer of Technology, Art. 1.

112 Ibid.

113 Id., Art. 3.

114 Id., Art. 6.

115 Id., Art. 9.

116 SNT, Part I, Arts. 11, 18; Annex I, paras. 8(b), 10(b), 12(11).

117 Note 3, supra.

118 See Adede, A. O. , Settlement of Disputes Arising under the Law of the Sea Convention, infra p. 798 Google Scholar.

119 See SNT (Settlement of Disputes) Art. 18; Working Paper on Settlement of Disputes, Annex I, Art. 17, note 3 supra.

120 The question of forum is one basic difference between the general approach to dispute settlement in Annex I and the functional approach in Annex II of the Working Paper of the Dispute Settlement Group. In an attempt to accommodate differences on this matter, Article 6 of the single negotiating text gives preference to special (that is functional) procedures where the treaty provides for such procedures, and Article 9 provides that if both parties to the dispute have previously declared that they accept the jurisdiction of an arbitral tribunal, or the International Court of Justice, then “either party may submit the dispute to that tribunal” rather than to the new Law of the Sea Tribunal.