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The United States Draft for a United Nations Convention on the International Seabed Area1—A “Polite Conversation”2

Published online by Cambridge University Press:  28 March 2017

L. F. E. Goldie
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Type
Third Session
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American Journal of International Law , Volume 65 , Issue 4: Proceedings of the Sixty-Fifth Annual Meeting of the American Society of International Law Washington, D.C., AprilL 29-May 1, 1971 , September 1971 , pp. 123 - 133
Copyright
Copyright © American Society of International Law 1971

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Footnotes

*

Charles H. Stockton Professor of International Law, Naval War College, Newport, R. I. (1970–71); Director of International Legal Studies, Syracuse University College of Law.

1

Aug. 3, 1970 (mimeo.).

2

With apologies to Dean Jonathan Swift.

References

2 With apologies to Dean Jonathan Swift.

3 This elaborateness, of course, may have collateral diplomatic uses of which we may all be unaware. It is sometimes diplomatic to oppose or delay a change in the law by offering one’s own very elaborate proposal for change in the confidence that it will not be accepted in toto. Negotiators may then, in good conscience, contest a multitude of proposals for change until the time for the conference (or the pre-conference negotiations) has quite run out; for it should not be forgotten that these activities have quite rigid timetables set for their completion. One should credit this behavior with being far more enlightened than a brutal veto or even an obstinately defended negative position.

4 1 Journal of Maritime Law and Commerce 461 (1970) (hereinafter cited as “Outer Boundary”). See also my small addendum thereto “The Continental Shelf s Outer Boundary—A Postscript,” 2 ibid. 173 (1970).

5 This is a roughly congruent term to that of the U.S. Draft’s “Trusteeship Area” which the Commission on Marine Science, Engineering and Resources (Our Nation and the Sea 151-153 (1969)), adopted. That Report (hereinafter cited as the “Stratton Commission Report”) was accompanied by the reports of eight panels bound into three volumes, i.e., Vol. 1, Science and Environment (1969); Vol. 2, Industry and Technology: Keys to Ocean Development (1969); Vol. 3, Marine Resources and Legal-Political Arrangements for Their Development (1969) (hereinafter cited as “Panel Reports”).

The Commission was appointed by President Johnson on Jan. 9, 1967, pursuant to the Marine Resources and Engineering Development Act of 1966, 80 Stat. 203 (1966), 33 U.S.C.A. §1101 (Supp., 1967).

6 See “Outer Boundary,” notes 8 and 9, and the accompanying text.

7 On the Stratton Commission’s International Fund proposal, see Stratton Commission Report 147-149, and 3 Panel Reports VIII, 35-38.

8 The International Hydrographic Bureau, Monaco, has now accepted the following definitions (31 Int. Hydrographic Rev. 97 (May, 1954)): Continental Shelf, Shelf Edge and Borderland. The zone around the continent, extending from the low-water mark line to the depth at which there is a marked increase of slope to greater depth. Where this increase occurs, the term “Shelf Edge” is appropriate. Conventionally its edge is taken at 100 fathoms (or 200 meters), but instances are known where the increase of slope occurs at more than 200 or less than 65 fathoms. When the zone below the low-water mark is highly irregular, and includes depths well in excess of those typical of continental shelves, the term “Continental Borderland” is appropriate.

9 For an indication of such regimes see Goldie, , “The North Sea Continental Shelf Cases—A Ray of Hope for the International Court?,” 16 New York Law Forum 325, 367-376 (1971)Google Scholar (hereinafter cited as “Goldie, ‘North Sea Cases’”).

10 For a discussion of this managerial or conciliation regime concept in relation to submarine mineral resources, see Goldie, , “North Sea Cases” 325, 375-376Google Scholar.

11 The National Petroleum Council has offered the following indication of the meaning of the continental rise as the boundary between the regimes of the continental shelf and of the deep ocean floor:

“Moreover, since the plunge of the slope has often been locally overlapped extensively by the sediments of the continental rise, a boundary just oceanward of the base of the slope, to include the shelf, the slope, and the landward portion of the continental rise, where developed, most closely approaches the true ocean-bottom boundary between continental and oceanic areas and is the most natural and appropriate outward limit of a country’s sovereign rights over bottom resources. A boundary thus drawn gives recognition to the natural oceanward extension of the domain of each coastal nation and the inclusion under its jurisdiction of that suboceanic territory over whose natural resources the coastal nation is most practically suited to exercise control.” National Petroleum Council, Petroleum Resources under the Ocean Floor 67 (1969).

12 North Sea Continental Shelf Cases, [1969] I.C.J. Rep. 3, 92 (Judge Padilla Nervo’s emphasis).

13 “Declaration of Legal Principles Governing Activities of States in the Exploration and Exploitation of Ocean Space,” Art. VI, Activities of Nations in Ocean Space, Hearings Before the Subcommittee on Ocean Space of the Senate Committee on Foreign Relations, 91st Cong., 1st Sess., at 9, 14 (1969). A similar depth criterion to that proposed by Senator Pell is his Res. 263, 90th Cong., 2d Sess., namely, that 600 meters would have similar advantages. It should be noted, however, that while S. Res. 263 proposed the cut-off bathymetric contour line as being that of 600 meters, S. Res. 33 advocates the 550-meter bathymetric contour line as the demarcation between the regime of coastal states’ continental shelves and the regime of ocean space. This latter line is identical with that proposed by the United Kingdom and the Netherlands delegations in the Fourth Committee of the 1958 United Nations Conference on the Law of the Sea at Geneva. See Netherlands and United Kingdom of Great Britain and Northern Ireland, Proposal, U.N. Doc. A/CONF. 13/C.4/L.32, 6 U.N. Conf. on The Law of the Sea, Geneva, 1958, Official Records (Fourth Comm.) at 6 (Mouton), 36 (Gutteridge), 41 (Gutteridge), 44 (Mouton), 45 (Mouton), 46 (Mouton), 47 (Mouton), 48 (Gutteridge—a comment on the uncertainty of the International Law Commission’s draft Art. 67), 135 (for the text of the United Kingdom Netherlands proposal), U.N. Doc. A/CONF. 13/42, Sales No.: 58. V 4, Vol. VI (1958).

14 8 Columbia Journal of Transnational Law 1, 40 (1969).

15 22 Rutgers Law Review 1, 48-54 (1967) (hereinafter cited as “Davy Jones’s Locker”).

16 See U.N. Charter, Art. 18.

17 [1923] P.C.I.J., Ser. B, No. 5.

18 [1960] I.C.J. Rep. 150.

19 14 New York Law Forum 325, 359-367 (1971).

20 “Davy Jones’s Locker” at 39-43.

21 Ibid, at 43-48.

22 For a discussion of the counterpoint of production and pollution see Goldie, , “International Principles of Responsibility for Pollution,” 9 Columbia Journal of Transnational Law 293–294, 311-312, 325-329 (1971)Google Scholar (hereinafter “Goldie, Responsibility”); Goldie, “Amenities Rights—Parallels to Pollution Taxes,” Natural Resources Journal (1971). See also Mishan, , “The Spillover Enemy,” 33 Encounter 3 (No. 6, 1969)Google Scholar; and Ramsey, , “We Need a Pollution Tax,” 36 Bulletin of Atomic Scientists 3 (No. 4, 1970)Google Scholar.

23 239 The Economist 77 (April 10, 1971); but see, now, “Plugging Some Leaks,” ibid. 80 (May 8, 1971). I have myself long been a voice crying in the wilderness on this topic. See Goldie, , “Flags of Convenience (A Review of Boczek, Flags of Convenience: An International Legal Study),” 12 Int. and Comp. Law Q. 989 (1963)CrossRefGoogle Scholar; Goldie, , “Recognition and Dual Nationality,” 39 British Year Book of International Law 220 (1963)Google Scholar; and Goldie, “Responsibility” at 319-327.

24 224 The Economist 794 (Sept. 2, 1967).