Panel IX: HIGH SEAS AND THE AREA

mao~ A, mmcm, JR.: The panel's title this afternoon is High Seas and theArea, which gives us a lot of flexibility. So in planning for today's sessionwe focused on some topics that may seem slightly unrelated but in fact arenot. We have an interesting panel for you this afternoon, and I would simplyintroduce them to you briefly before we go into our actual presentations.

The first speaker will be Captain William Schachte, who will speak to youconcerning "National Security Interests in the Central and Western Pacific,"to set the stage. We have certainly heard a lot about other countries'perspectives in this area. Bill Schachte, who has worked very closely with meon law of the sea matters and particularly in relationship to UNCLOS Hl, isparticularly well-suited to present the V.S. perspective; he comes from theJudge Advocate General's Office of the Navy and has a vast background inlaw of the sea.

Our second speaker will be William T. Burke, Professor of Law at theUniversity of Washington. He has a long-time involvement in law of the seaand is a co-author with Myres McDougal of one of the classic works on thelaw of the sea. For tnany years he has served in an advisory capacity to suchgroups as the U.S. Delegation on the Law of the Sea. He going to speak to uson "Customary Law as Reflected in the LOS Convention; A Slippery Formula."

The third speaker today is a close colleague of mine, Professor BernardOxman from the University of MiamiSchoolof Law. As you all know, Berniegoes back more than any of us in the history of the Conference and thepre-Conference days. He has served as vice-chairman of the United StatesDelegation to the UNCLOS ill and was chairtnan of the Knglish Languagegroup of the Drafting Committee, He's going to talk to us about "The HighSeas and the International Seabed Area" and the relationship between theseconcepts. You will find his approach particularly refreshing because he willconcentrate on the similarities between the two positions on the deep seabedrather than, as most people have in the past, the differences.

Finally, we have with us today Dr. Victor Tsarev and his colleague, Dr.Valery Andrianov from the Soviet Maritime Law Association in Moscow,These two gentlemen attended our conference last year in Miami, and wewelcome them back this year. Over the last couple of years the Law of the SeaInstitute and the Soviet Maritime Law Association have established goodcontacts, and we' re exploring methods by which we can have continuingcooperation. Dr. Tsarev wil! speak to us on "Confidence Measures: AnImportant Condition of Cooperation of States in the Asian and the PacificRegion."

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NATIONAL SECURITY INTERESTS IN THECENTRAL AND WESTERN PACIFIC

Captain William L, Schachte, Jr. 2

international Law DivisionDepartment of the Navy

Attempting to describe U.S. national security interests in the central anclwestern Pacific, particularly in a single paper, is a daunting task. The subjectis as broad as the Pacific is vast. And the issues that could be addressed areas diverse as the countries located within the Pacific region.

We could certainly focus, for example, on the evolving situation ia. thePhilippines, most specifically the future of the U.S. military bases there, withthe base rights agreements up for renewal in l991, Or we could discuss NewZealand's decision to deny port access to nuclear- powered andnuclear-capable vessels, with its resultant impact on ANZUS, and what al!this may portend for U,S. security interests in other Pacific areas. Or possiblywe could look at the anti-nuclear movement in Japan, the role of the U.Smilitary in the Republic of Korea, or the evolving cooperative relationshipbetween the U.S. and China.

These are all, to be sure, major topics directly relating to U.S. securityinterests in the central and western Pacific, and all deserving of lengthyconsideration. But, as you have probably surmised, I will not be addressingthese issues today, at least not in any detail. I have chosen to focus on oneparticular part of the central and western Pacific -- Oceania, the islandnations that have become a focal point of global attention. The future of thesenations is now intertwined more so than ever with the future of the UnitedStates.

THR "OLD" PACIPKC AHD THE "NRW" PACIPICBefore assessing some specific problems and solutions shared by the

U.S. and the Pacific Island nations, we should consider some powerful andoverriding inouences that have irrevocably changed the nature of the Pacificregion. For many years after World War II, there was a perception, sornetitnescast in pejorative terms, of the Pacific as being "an American lake." TheAmerican G,l. was respected. Some felt he was the first European" to treatthe Pacific islanders as equals. The process of decolonization carne relativelylate and painlessly to most nations in the region. And the islands were thoughtof as being blissfully removed from the confrontations and competitions of

The a~thor cfishes to thank CDR Thomas E. Randall, JAGC, U.S. Navy,for his assistance in the preparation of this paper.

Editor's note. In November 1988 Captain Schachte was promoted to RearAdmiral and is now the Assistant Judge Advocate General of the Navy.

Murkowski, "We' re Adrift in the South Pacific," Los A~rgeks Times,November 9, 1986, Section 5, at 5, col. l,

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the rest of the world. Problems in the region couldalways be resolved through'the Pacific Way" of compromise and consensus.~ This was the "Old" Pacific.

ln recent years, however, the entire Pacific basin has participated activelyin the emerging economic, social, political, and military realities of thepost-war world. Times have changed. The Pacific island states have nowbecome a critical part of the geopolitical issues of the global scene, They facepressures from within and pressures frotn without. island leaders haveidentified their two most pressing concerns. The first is their need foreconomic development. The second is how best to manage their relations withmajor world powers, particularly Japan, France, the U5., and the SovietUnion, and with regional powers, such as Australia. American leadership andinfluence in the area, at one time virtually unchallenged, now facescompetitiort. This is the "New" pacific -- the one in which the United Statesmust now interact.

U.S. Go~ tw mm PanrtcNow that we have set the scene, ]et us consider what the United States istryistg to accomplish. The vital importance of the Pacific region has beenciestrly recognized by the current Administration. President Reagan, forextatnple! once noted that "[t]o a great extend, [America's] future is in thePacific-" And Secretary Schultz once declared that, "[iaaf you want tounderstand the future, you must understand the Pacific region."Last September, Assistant Secretary of State for East Asian and PacificAffairs, Gaston J. Sigur, in an address at Georgetown University, describedU S. goals in the Pacific island region; First, the United States has an "abidinginterest in the continuing peace, political stability, and economic prosperityirs the region." Secondly, ' i!n support of [its! many defense commitments, the U.S. seeks! to maintain the overall strategic balance among major powersits the region, [to ensure its] own operational ability, maneuverability, andaccess in titnes of crisis" Finally, the United States endorses and supports"broader dernocratization and respect for human rights, as well asstrengthening of the open market trading system for greater commonprosperity,"ln support of these goals, the United States has pledged to exercise both"sensitive leadership" and "provide ample support without attempting todictate or dominate local processes" in the Pacific island nations. Secretary»Sttr was most etnphatic in stating that the U.S. does not consider the pacifictsn American lake," but went on to say that our nation does acknowledge its."responsibilities and legitimate interests there.

Addison, "Storm Waves Building in the Pacific," Hrpnrrlulu Advertiser,May l5, l987, at A-13.

5 Remarks on arrival at Hickam Air Force Base, 20 Weekly Comp. Pres.Doc. 586 April 22, 1984!

Palmer, "The United States and the Western Pacific'. Understanding theFtIture," 85 Current History 145 l986!.

Sigtsr, "The Strategic!mportance of the Emerging Pacific," 86 Dept. St.Bull. 75 l986!.

389

These are broad and challenging goals, ones that the United States wiH.have to work hard to achieve. ln a moment, I will discuss how the U.S. haspursued these goals in certain specific areas. But first we need to consider oneother very powerful trend that has been emerging in the Pacific.

THE SOVIET CKALLENG EOn the 28th of July 1986, General Secretary Mikhail Gorbachev ststed,

during a speech at Vladivostok, that "[t]he Soviet Union is also anAsian-Pacific country." As unremarkable as this remark might seetn, takersout of context, itactually signaled, or rather, confirmed, a major reorientationof Soviet foreign policy. At Vladivostok, the Genera! Secretary was makingspecific note of the Soviet Union's new emphasis on cultivating diplomaticrelations and economic markets in the Pacific region.

This new diplomatic initiative follows on the heels of a significantincrease in Soviet naval power in the Pacific that has taken place over the pastfew years. The Soviet Pacific Fleet, the largest of the Soviet Union's fourfleets, has grown from a coastal defense force to a blue-water,power-projecting cotnbination of aircraft carriers, major surface combatants,submarines, and land-based strategic and tactical aircraft. As Secretary9

Weinberger has stated. the Soviets "have moved beyond what anyone mightreasonably define as a defensive posture, and have assetnbled a clearlyoffensive arsenal." 0 This belief was also shared by Mike MansfieM,Ambassador to Japan, who noted that "ft]he very size of the Soviet Fleet,coupled with its expansion into new Pacil'ic regions, spells danger bydefinition." '

The Soviets were aided in their endeavors by the U.S. withdrawai «otnVietnam. They have inherited and expanded upon our former facilities there.When United States forces left Vietnatn in 1975, there were two naval piersat Caro Ranh Bay. The Soviets have now expanded the harbor to six piers. Ortany given day, there may be as many as 25 to 30 Soviet naval vesselsassembled there, including attack submarines, At the adjacent military airfacility, there might be between I5 and 2G Badger interntediate-rangebombers, 15 MlG-23 interceptors, and a number of Bear reconnaissanceaircraft. Other military aircraft operate out of nearby Da Nang.'

ThiS iS but One part Of a significant inCrease in the SOviet Itavalpresence in the Southern Pacific, which has mushroorned in only a few shortyears. It should be kept in mind that this Soviet "southern" fleet is in a

Haberman, "Challenge in the Pacific," New York Times, Sept. 7, I986,Section 6 magazine!, at 112.

For some specific number see id. at I 04-05; see also "Pacific Overtures,"128 Tr'rrte 58, at 60 table!.

to Haberrnan, supra note 8, at 105.

M. at 28.

'~"Pacific Overtures," supra note 9, at 59. See also id. at 104.

390

position to threaten U.S. bases in the Philippines and to block U.S. access tothe indian Ocean and Persian Gulf.

More recently the Soviets have realized they cannot rely on their navalpresence alone to accomplish the goals they seek in the Pacific. Thus in thelast three to four years they have also launched an accompanying diplomaticinitiative, as Mr, Gorbachev signaled last year in Vladivostok. The Soviets areparticularly interested in having access to the economic markets of the moredeveloped Pacific rim nations, and in acquiring their technology. As some ofyou may have read in the papers a few weeks ago, they recently scored amajor coup by acquiring U.S. developed submarine-quieting technology fromToshiba Corporation in Japan.

ln the lesser-developed island nations of Oceania, however, the Sovietsappear to be mainly seeking access for their fishing fleet, with a view towardsfuture naval access, and perhaps making some political inroads with theind igenous populations. General Secretary Gorbache v also signaled this trendby recently proclaiming, "tf!or many reasons, ISoviet] fisheries will be sltiftedincreasingly to the Far East. Large funds have been invested in the creationof a large capacity fishing fleet in that area."'~

As many of you are probably aware, last year the Soviets concluded afishing agreement with the island nation of Kiribati. The Soviets paid thatcountry $1.7 million, about 10 percent of Kiribati's total annual income, f' orthe privilege of having 12 fishing vessels operate in Kiribati's exclusiveeconomic zone. The deal did not include any landing, rights, however.' At thebeginning of this year, as the Kiribati agreement expired, the Soviets madea deal with Vanautu for $1.5 million. Although the fishing is, reportedly, notas good off Vanuatu as it is off Kiribati, this time the Soviets got landingrights -- that is, their fishing vessels may make port calls in Vanuatu. Voderthis arrangement, the Soviets wiH be providing Vanuatu with about 15 percentof that country's total revenues for 1987.

Thus the Soviets, as part of their recent Pacific-oriented diplomacy, aremaking revenue-starved island nations offers that are difficult to refuse inorder to buy fishing and landing rights. The question is, are these purelyeconomic arrangements, or do they spell danger to these vulnerable countriesand to overall Pacific stability?

Both the U.S. and Australia have warned the Pacific island states to bewary of the Soviets' intentions and activities in connection with increasedfishing activities. Soviet fishing trawlers routinely carry more than justfishermen on board. Allowing Soviet crew members ashore could permit anopportunity to plant the seeds of embryonic, Soviet-backed labor and politicalmovements. Furthermore, access for fishing may be just the first step on anirreversible course. As former Australian Prime Minister Malcolm Fraser oncesaid, in connection with allowing the Soviets to come ashore to land andprocess their fish, "[i]t will start as a. fish-processing facility, but that willhave some refueling facilities, which will require repair facilities and, in turn,

Toth, "U.S., Australia Wary of Soviets' South Pacif ic Role," Los AngelesTrrrjes, Feb. 22, 1987, Section 1, at l, col. 6.

t4gd

std

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an airfield. Then it is a base." lt was an "absolute certainty," he added, thatSoviet military operations would foHow.

THE "TUNA WAR AND THE SOUTH PACrPrC RECIONAr. FrSrrRRrRS T~~1t is a sad irony that these Soviet inroads into Pacific fishing may not

have occurred were it not for the activities of the U.S. tuna fleet, whichroams f'ar and wide to harvest its catch. For years the V.S. tuna industry hasmaintained, with the backing of the U,S. Government, that the tuna, a "highlymigratory species", is not subject to the regulation of any coastal state marethan twelve nautical miles off its coast. This view has, on occasion, restrltedin the seizure of U.S. tuna boats by states that claim the right to regulate tunafishing throughout their exclusive economic zones.

ln the 1960s, this dispute surfaced off the west coast of South America,where the American tuna fleet confronted the Peruvian Navy in itsenforcement of Peru's 200 nautical mile territorial sea. Ultimately theseprOblemS led tO the enaCtrnent Of the l.ishermen'S PrOteCtive ACt Of 196 r, ti

which obligated the U.S. Government to pay the fines, fees, or other directcharges of any U.S. fishing boats seized by a foreign government ttnder aclaim of jurisdiction not recognized by the U.S., and which mandatedeconomic sanctions against the offending government.

Subsequently, during the Law of the Sea negotiations, the United Statessought to attain international recognition of the principle that highlymigratory species should not be subject to the regulation of any one coastalstate, but should be regulated only by international agreetnent or through aninternational organization. The U.S. argued that, unlike fish stocks thatremain largely within a coastal state's EEZ, the goal of "optimum utilization"of a highly-migratory stock could best be attained through internationalmanagetnent of the species. To put this point into practice, President Reaganspecifically stated, in his executive order declaring the V.S. EEZ, that "hilhlgmigratory species of tuna ... are not subject to United States jurisdiction."This also amounted to a 1983 Executive reaffirmation of the 1976 MagnusonFishery Conservation Management Act.

Unfortunately, the 1982 Law of the Sea Convention text arguably !eftthe issue substantially unresolved, Article 56 i! of the Convention gives thecoastal state "sovereign rights for the purpose of exploring and exploiting,conserving and managing the natural resources whether living or non-living,Of the waterS superjaCent to the seabed."2 Furthermore, Article {il�!provides that "[t]he coastal state shall determine the allowable catch of the

16Haberman, sttpro note 8, at l04; see also id.

22 U.S.C. Section 1971, er. st.

Proclatnation No. 5030, 48 Fed. Reg. 10605 �983!.

16 U.S.C. Section 1801, et. st.

20Convention on the Law of the Sea, Article 56 l!, opened for si grratuteDecember 10, 1982. U.N. Doc. Al'CONF. 62/122, reprirrled in 21 I.L.M'. 1261�982!.

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living resources in its exclusive economic zone."z And Article 62�! directsthat "[n]ationals of other States fishing in the exclusive economic zone shallcomply with the co~servation measures and with the other terms andconditions established in the laws and regulations of the coastal State.' Suchlaws and regulations, however, "shall be consistent with the Conventiott."

This would all seem straightforward enough were it not for the presenceof Article 64, which obligates coastal States, as well as States whose nationalsfish for highly migratory species, to:

co-operate directly or through appropriate international organizationswith a view to ensuring conservation and promoting the objective ofoptimum utilization of such species throughout the region, both withinand beyond the exclusive economic zone. In regions for which noappropriate inter national organization exists, the coastal State and otherStates whose nationals harvest these species in the region shaB cooperateto establish such an organization and participate in its work.

Such language puts off resolution of a dispute to some future tijne. Inthe meantime, existing problems will persist and international frictions willcontirtue unabated.

This, of course, is exactly what has been taking place in the SouthPacific since the conclusion of UNCLOS. In May 1983, the South PacificForum Fisheries Agency declared that only those vessels registered with theAgency, and "in good standing" -- that is, those who have paid all license fq~-- would be permitted to fish in the EEZs of the sixteen Forum Countries,In the meantime, the U.S. tuna fleet maintained that it had the right to fishthese waters without complying with coastal state fishing regulations,including payment of fees. Obviously this caused friction. The tuna boatcaptains were labeled as "buccaneers" by the Forum Fisheries Agency andthe "Tuna War" began.

For the most part, the tuna boats were able to carry out their activitieswith virtual impunity because of the island nations' lack of effective offshorelaw-enforcement capabilities. Events came to a head in July 1984 when theSolomon Islands, using their one and only patrol boat, seized the Americantrawler, JearreHe Diana. Althouth two other boats had been seized in previousmonths, and ultimately released after payment of fines, the Jeannette Diana

1d�Art. 61 l!.

fd., Art. 62�!,

1d., Art. 61�!.

BBC Surrrnrary of 8'orld 8roadcasrs, Pt. 3, June 1, l983 available june10, !987, on NEXIS, Wires fi/e!.

New York Times, November 10, 1985, Section 1, at I, col. l.

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turned out to be an especially difficult incident to resolve. It attractedunprecedented public attention throughout the South Pacific, including a 60Minutes" type of television expose' aired in Australia, As you might imagine,it was highly critical of the U.S. Government and the U.S. tuna industry.

In any event, the time was ripe for an international resolution of theSouth Pacific tuna problem. Negotiations began in September l984 at Suva,Fiji, between the United States and the sixteen South Pacific Foru~members. Ambassador Edward E. Wolfe, Deputy Assistant Secretary of Statefor Oceans and Fisheries Affairs, headed the U.S, Delegation. He was assistedby Mr. David Burney, General Counsel for the American Tuna FoundationAfter two years of intensive negotiations, the parties reached a preliminaryagreemeat in Tonga on October l986. Nearly all participants, including theUnited States signed the final text this past April in Port Moresby, PapuaNew Guinea. I

The scope of' the Treaty spans about 10 million square miles of SouthPacific waters. Basically it provides that over a five year period the U.S. tunaindustry and U.S. Government will pay the South Pacific Forum, at aminimum, $60 million in return for fishing privileges. Of this, the tunaindustry will pay at least $1.75 million each year for a rninimurn of 35 vessellicenses, with more available if needed. The industry will also provide%250,000 annually in technical assistance to Forum Nation fisheries. TheUnited States Government will add $10 million annually in economicassistance, consisting of $9 million in cash transfers and $I million indeveloptnent projects administered by the U.S Agency for InternationalDevelopment. This two-tiered arrangement of license-fees-plus-aid wasworked out in order to resolve differences between the tuna industry, whichrefused to pay more than the commercial value of a license, and the islandstates, who demanded broader compensation as a means of improving theirfishing industries and struggling economies.~

26Chri stian Science Monitor, October 9, l 984, International Section, at l6.The Government of the Solomon Islands reportedly attempted to sell the boatfor $3.5 million, but got no takers because the banks holding the lienpublished notices advising potential buyers that title would not be clear.Additionally, the U.S. imposed a trade embargo, See also, Mr2nchesterGuardian Weekly, July 28, l985, at 9.

27Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati,Marshall Islands, Nauru, New Zealand, Papua New Guinea, Solomon Islands,Tuvalu, Western Samoa, Niue, Palau, Tonga, and Vanuatu. 87 Dept, St. Bui].82 I987!.

zeAll signed except Nine, Palau, Tonga, and Vanuatu. ld. Niue andVanuatu have since signed. Ocean Policy News, June l987, at 2.

29Dept. Sr. Bull., supra nate 27, at 82,

30Address by Ambassador %oil'e at the University of Virginia Center forOcean Law and Policy, Octaber 30, l986, as summarized in Ocearr PolicylVews, November, 1986, at l.

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The Treaty will enter into force after ratification by the United Statesand ten of the signatory Forum States. These ten must include Papua NewGuinea, Kiribati, and the Federated States of Micronesia. Present indicationsare that the U.S. Senate, as well as the parliaments of the island states, willconsider the Treaty within the next few weeks and that conditions appearfavorable for ratification by the necessary parties within the near future.

Assistant Secretary of State Sigur has described the Treaty as "one qfthe most comprehensive and complex fisheries agreements ever negotiatedFurthermore, the negotiation and implementation of this agreement clearlysupports U.S. security interests and overall goals in the Pacific. Although theTreaty regime certainly does not prevent Forum nations from concludingbilateral fishing deals with the Soviets, it may well serve to take away theirearlier incentive to do so

This Treaty should eliminate what had probably become the majorsource of irritation in relations between the U.S. and Pacific Forum States.Furthermore, efforts are already underway to draft implementing legislationto set up a U.S. enforcement regime, which should help to prevent recurrencesof such counter-productive incidents by U.S. tuna boats as the recent tunaboat seizure by Kiribati. Through this Treaty the U.S. will clearly promote itsgoal of contributing to peace, stability, and economic well-being in Oceania.

TRUST TIRITORY OP THE PACIFIC ISLANDS AND THE COMPACTS OF FREEAs~most

While we are on the subject of goals, you may recall that fosteringdemocracy in the Pacific is another major objective of the United States.Over the past few decades, the U.S. has worked diligently toward this goal inthe central and western Pacific, and, most notably, within those island !tateswhich formerly constituted the Trust Territory of the Pacific Islands.

About four weeks ago, on July loth, the Headquarters of the TrustTerritory, located on Saipan, officially closed, and the last HighCommissioner, Ms. Janet McCoy, retired. This signaled the end of fortyyears of administration of the Trust Territory by the United States, In itsPlace was a new commonwealth of the U.S., the Northern Mariana Islands,and two new sovereign states, the Federated States of Micronesia and theMarshall Islands, which are linked with the United States under a Compactof Free Association."~ Still unresolved is the status of Palau, where a rulingby their Supreme Court has held up approval of their Compact,

The nurturing of the institutions of self-government, and the building

Sigur, supra note 7, at 76.31 ~

32The Trust Territory consisted of the Northern Mariana Islands, Palau,Marshall Islands, and the Federated States of Micronesia Yap, Truk, Ponape,and Kosrae!,

Sigur, supra note 7, at 76.

34Compact of Free Association Between the Government of the UnitedStates and the Governments of the Marshall Islands and the Federated Statesof Micronesia, 48 U.S.C.A. Section 1681 West. Supp. 1987! hereinafter citedas Compact!.

395

of an educational and economic infrastructure to support those institutions inthe Trust Territories, has been a significant achievement by the island le@&rsparticularly when one considers that most of these islands hM1 beert undervarious forms of colonial rule from the early 1800s until their liberation framthe Japanese in World War Il.One of the commitments made by the U.S. under the TrusteeshipAgreement was to bring about self-government in accordance with the freelyexpressed wishes of the people. In May 1986, the United Nations TrusteekupCouncil, after having observed plebiscites in the various Trust Territory Statesand having reviewed the Compacts of Free Association, decreed that theUnited States "had satisfactorily discharged its obligations under the terttts afthe Trusteeship Agreement," and that is was appropriate for the Agreerrsejttto be terminated upon implementation of cornrnonwealth status for theNorton Marianas, and the Compacts of Free Association for the othe.r threestates. Throughout its forty years as the Trust Administrator, the Ustited Stateshas worked to create an infrastructure that would support self-goverarseetand contribute to peace and prosperity throughout the Trust Territories. Bythe time the Trusteeship ended, there were modern hospitals and power phantson all the major islands, one-quarter of the population was enrolled isa aschool system that encompassed elementary grades through college level, theaverage life expectancy was over 60, and the infant mortality rate was among.the lowest in the Pacific. Although the U.S. wiH continue to provide aid to theislands, it has also fostered self-reliance and self-management among theisland leaders. Additionally, contrary to Soviet charges that the U.S. httd"militarized" the Trust Territory, we dismantled all our military bases there.save for the Kwajalein Missile Test Range,

As 1 mentioned, the peoples of three of the four island states opted foe.Compacts of Free Association with the United States. These sweeplsgagreements are the product of fifteen years of negotiations between the U8.and the Trust Territory States. First and foremost, they establish that theformer Trust Territories are self-governing, sovereign nations. They have thecapacity to conduct foreign affairs and conclude international agreesneats mtheir own right, specifically to include managing their own law of the seamatters. The U.S., on the other hand, is given exclusive atsthority analresponsibility for the defense and security of the Freely Associated States,including the right to foreclose access or use of the territory and waters, afthese states by any third country's military forces. The U S. also is givers theoption, should it ever be needed, to establish military bases, subject ta theterms of separate agreements.

The Compacts also provides over two billion dollars in either direct ~or special tax and tariff concessions to the Freely Associated States over ~

23 U.N. Chron., No. 4 August 1986!, at 67.

United States' Report to the Trusteeship Council on Micronesia, id.. at69.

Compact, supr a note 34, Section 121.

Id., Section 311.

396

next fifteen years, including "cleanup" funds for Bikini Atoll artd a trust fundta settle claitns arising from past nuclear testing. Additional~i, citizens ofthese states can live and work as non-immigrants in the V.S. In fact, theCompact encompasses so many interagency functional areas that achievingagreement on all of its provisions within the Administration., let alone withinCongress and the Island States, was no small accomplishment.

As I mentioned earlier, the status of Pa'lau remains uncertain. The votersot Palau have approved the Compact by majority votes on five separateoccasions since 1983. Additionally, the President of Falau has certified thatonly a simple majorit~ is required for adoption of the Compact by theGovernment of Palau. Nonetheless, the Supreme Court of Palau has heldthat the Compact, which gives the U,S. the right to operate nuclear-capableor nuclear-propelled vessels within the jurisdiction of Palau, is incompatiblewith their Constitution, which prohibits the "use, testing, storage or disposal"of nuclear weapons within Palau. Furthermore, this provision of the PalauConstitution may not be amended by treaty without the approval of 75percent of he voters. Thus far, the most any plebiscite has produced is a72 percent approval in February 1986. The most recent plebiscite, on 30tune 1987, yielded only a 67.5 percent approval.

This most recent vote on the Compact has reportedly causedconsiderable turmoil in Palau. The loss of' anticipated U.S. revenues thatwould have been associated with the Compact resulted in the layoff of overhalf of' Palau's government employees. Meanwhile legal counter-chaIIengeshave been fi'led in the Palau courts by supporters of the Compact. In addition,U.S. Executive Branch agencies and the Congress are again reviewing thesituation to determine what additional steps may be taken to resolve thisimpasse In the meantime, Palap will continue to be administered as the solesurviving U,S Trust Territory.

Notwithstanding this temporary setback in I'a!au, the United States andthe Trust Territory States have much to be proud of. Even the situation in.Palau, resulting from a challenge in the courts, is a reflection of how well the

1d., Section 141.

ro February 1983 -- 61.4 percent in favor, September 1984 -- 67 percentin favor; February 1986 -- 72 percent in favor; December I 986-- 66 percentin favor; June 30, 1987 -- 67.5 percent in favor. H.R. Rep. No, 663, 99thCongress, 2nd Session at 71 �986!; Def. 4 Foreign A jf. Daily, July 8, 1987,at l.

H.R, Rep. No. 663, supra note 40, at 2-3.

Ocean Policy News, July 1986, at 2.

H. R, Rept. No. 663, supra note 40, at 2-3.

Def. 4 Foreigrr Aff. Daily, July 8, 1987, at 1.

fd, Reuters News Service, July 11, 1987 available July 13, 1987, onNEXIS, Wires file!.

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institutions of democracy are functioning, As President Reagan said earlierthts year, "Our most valuable contribution to the islands, a legacy in which wecaN take pride, are the democratic, representative governments created andnow enjoyed by the people of the trust territory,"

SaUTE P~ctFlc NUot,~ FRER ZoNE T~vvTurning once again to the statement of U.S. goals in the Pacific, one

of these is "to maintain the overall strategic balance among major powers inthe region" in order to ensure "operational ability, maneuverability, and accessin times of crisis." Additionally, the U.S. seeks to maintain peace and politicalstability in the region. Although these goals might be applicable to any regionof the globe, they have particular importance in the Pacific island regiotsbecause of the U.S. Territories and Freely Associated States located there, andbecause of the United States' longstanding role in the area as a leader andprotector.

A few months ago, the United States was faced with a difficult choicehaving implications related to these goals. Last December, the South PacificNuclear Free Zone SPNFZ! Treaty came into force with its eighthratification, that of Australia. Four days later its protocols were opened forsignature, and the Soviet Union promptly stepped forward to sign two ofthem. However, the United States, which takes its treaty commitmentsseriously, had to carefully consider the impact that joining the SPNFZ regimewould have upon its ability to maintain peace and security, both globally aswell as in the Pacific region itself. Ultimately, the U S decided that its abilityto continue to tnaintain a flexible and credible nuclear deterrent, and therebyaraintain the peace, had to take precedence over joining the SPNFZ Treatyregime.

The Treaty establishes a nuclear free zone stretching from the westcoast of Australia eastward to the Latin American Nuclear Free Zone, andfrom roughly the equator south to the Antarctic Treaty Zone. It encompassesmillions of square miles of ocean, much of which is international waters.Included wit!jn the Zone are the U.S. Territories of American Samoa andJarvis Island.

Under the basic Treaty, which is open for signature only to membersof the South Pacific Forum, parties undertake:

Not to acquire nuclear weapons, or assist any other country to acquirethem;

As stated by Secretary Sigur, "The legal challenge is, in a very real sense,the measure of success we and all the people of the trust territory have hadin nurturing and bringing into full blossom a vigorous and democraticindigenous political life." Sigur, supra note 5, at 76.

37 Dept. St. Bull. 78 �987!.

South Pacific Nuclear Free Zone Treaty, opened jor signature Atrgust6, 1985, 24 I.L.M. 1442 entered into force December 11, I986!.

Id., Annex l.

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Not to permit stationing of nuclear weapons oat their territory;

Not to permit the testing of nuclear explosive devices on their territory,tLstd not to assist any other country to test nuclear explosive devices;

~ Not to dump, or assist anyone to dump, radioactive waste at sea in the zone.

To apply strict non-proliferation measures to all exports of nuclearmaterials to ensure exclusively peaceful, non-explosive use.

ln addition to the basic Treaty, there are three protocols, open forsignature by the five nuclear powers, as follows:

Protocol l: Signatories agree not to manufacture, station, or test artynuclear explosive devices withirt territories within the zone for which theyhave imtternationa! responsibility -- open for signature by France, U.K., andthe U.S.;

Protocol 2: Signatories agree not to contribute to any act of a Treaty orProtocol Party that would violate that Party's obligations. Additionally,signatories pledge not to use, or threaten to use, any nuclear explosive deviceagainst any of the Treaty Parties or territories within the SPNFZ for whicha Protocol l Party is internationally responsible -- open for signature byFrance, P.R.C., U,K., U.S, and the U,S,S,R,

Protocol 3: Signatories agree not to test any nuclear explosive devicewithin the Zone -- open for signature by France, P.R.C., U.K., U,S., andthe USSR.~~

Significantly, the Treaty does not prejudice, or in any way affect therights, or the exercise of the righ!s, of any State- under international law withregard to freedom of the seas." Furthermore, it preserves each Party' ssovereign rights:

to decide for itself whether to allow visits by foreign ships and aircraftto its ports and airfields, transit of its airspace by foreign aircraft, andnavigation of foreign ships ijt its territorial sea or archipelagic watersin a manner not covered by the rights of innocent passage orarchipelagic passage. ~

The Soviets, in statements tnade at the time the Soviet representativesigned Protocols 2 and 3, warned that countries which exercised their right to

A general surnrnary of the Treaty's provisions may be found at 24 I.L.M.l440.

ld,, Annex l.

M., Art. 2�!.

ld., Art. 5�!.

pertnit U,S. ship visits under a "neither-confir rn-nor-deny" formula wouldnotbe protected by the Soviet pledge, under Protocol 2, to neither use, northreaten to use, nuclear weapons against them. In another statement, theSoviets sought to guarantee that allies of the U.S. would not facilitate thetransportation of nuclear weapons within or beyond the Zone. It is clear54.

that the Soviets see the SPNFZ, as with other nuclear free zones they havepurported to support, as merely an opportunity to deny access by the U.S. andher allies to as much of the globe as possible and to impede the Westeranuclear deterrent which holds Soviet ambitions and aggression in check. TheU.S. felt it could not become party to the Protocols without aiding the Sovietsia these ambitions.

On the other hand, there are some who would argue that since US.military operations in the Pacific are compatible with the SPNFZ regime, theU.S. Government should sign the protocols. Unfortunately, this argutrLent isbased upon a static and unrealistic concept of deterrence. The effectivenessof deterrence is based as much on what we can do, as it is on what we nowdo. Signing Protocol I, for example, would prohibit the United States froxnstationing nuclear weapons in American territory within the Zone. Thisprohibition would f'oreclose potential responses by the U.S. to an adversary'schallenge. As the U,S. loses flexibility to operate and to respond, deterrencebecomes less effective, and the risk of war increases

55

The United States is not insensitive to the need for reducing thenumbers and presence of nuclear weapons on the globe. The A.dministratioa sefforts to engage the Soviets in meaningf'ul arms reductions talks areindicative of the United States' desire to reduce the nuclear threat. Sat theability to reduce this threat and maintain peace is only achievable throttgh themaintenance of a credible and flexible deterrent.

tA'e believe a number of the Pacific island leaders share this views.Nonetheless, the U.S. will continue to work with al! the Governrrtents in theregiort in. the weeks and months ahead to further explain its decision. Morefundamentally, the U.S. will continue to display its determination to maine6apeace and stability in the Pacific island region, as it has done for more thanforty years.

CoNCcAJSIONThis paper has only scratched the surface in attempting to describe

U.S. national security interests in the Pacific. National security is affected iacoutttless ways throughout the Pacific Basin. In fact, a major challenge facedby the United States is to continue to recognize and deal with the natiorsalsecurity implications of the many trends and developments taki.ng place ia theregion.

54As reported in a statement by Rear Admiral Edward E Baker, Jr,Director, East Asian and the Pacific Region, Office of the Secretary ofDefense. International Security Affairs, before the Committee on ForeigaAffairs, U.S. House of Representatives, June 9, !987 copy available atIn ternat ional Law Division, Office of the Judge Advocate Genertsi,Department of the Navy!.

55For an exposition of this and other reasons why the United States didnot sign the Protocols, see statement of Rear Admiral Baker, id.

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The United States faces many complex challenges throughout thePacific, not the least of which is the growing threat posed by the SovietUnion. Consequently, more than ever before, the United States must maintaina strong military presence in the Pacific, and continue to exercise sensitiveand wise leadership in the diplotnatic and econotnic arenas. Our governmentmust indeed be both sensitive and perceptive. Furthermore, when regional andglobal security interests are at stake, the United States must be prepared tomake the hard decisions, even if they might seem unpopular or draw criticistnin the short term,

The Pacific islands have been a region of peace for over forty years.lt is clearly in the interest of the free world, particularly to the island statesthemseLves, to continue to maintain that peace through strength and vigilance.

40L

"CUSTOMARY K,AW AS RKFLECTED IN THE LOS CONVENTION":A SLIPPERY FORMULA

William T. BurkeUniversity ol Washington

Seattle, Washington

Over the past several years, particularly since the conclusion of the 1982LOS treaty, the United States executive branch has been particularly activein expressing its views on the lawfulness of claims to exercise authority overthe oceans. These expressions typically are expressed in two different ways:one is to exercise what are considered to be rights under international Iaw incircurrtstances in which they appear to be denied and the second is tocommunicate directly, stating a view differing from that of the recipientgovernment,

Considered together, and given the numbers that have been mentionedby State Department officials, the total number of expressions of view arevery large, numbering apparently in the hundreds. Thus the Legal Advisernoted that since I97S the freedom of navigation program has exercised itsrights "against the objectionable claims of over 35 countries, including theSoviet Union, at a rate of about 30-40" per year. Protests against excessiveclaims since l982 are reported by Assistant Secretary Negroponte to be wellover 40,"

In many respects this process of comtnunication occurs beyond the viewof the academic or other observer and one cannot offer meaningful overallappraisal of the entire course of events. Observers cannot determine by theirown means what these programs achieve, either by the exercise of rights orby sending protests. Apart from isolated speeches by State Departmentofficials, there appears to be no communication of results to a wider audience,except in somewhat unusual circumstances such as the results of theinteraction with Libya, which attracts a good deal of attentton, or perhapswhen there is a particular incident involving the Soviet Union. While we areinformed that there have been a great many exercises of U.S. rights incontexts of challenge to others' objections, the effect persuasive or coercive!,if any, is apparently limited to the particular opposing state. Sirnilarily, manyprotests are made but few apparently are given currency beyond the recipient.

In light of the above information about challenges and protests, onequestion that immediately occurs, but cannot be answered by the observer, iswhether this is evidence that the law of the sea as practiced by many otherstates is seriously inconsistent with the view of the United States on importantissues. If the Legal Adviser'> statement is that there have been severalhundred exercises of rights over a period of about ten years, there would seemto be a lot of states out of step with the United States. This does notnecessarily follow, since many of these may be repetitive exercises involvingthe same state, as was the case with Libya over the past several years. Mypoint is that the outside observer cannot determine what implications can befairly drawn.

No doubt there are sound reasons for sornetirnes muting challenges andprotests, because the former may be made more provocative by publicity thanis intended and protests might have the potential of adversely affecting widerand more important political relations. Certainly the decision not to challengeand not to protest may be influenced, not necessarily wisely, by the wider

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political context. These hazards are not unnoticed by officials. David Colsonhas recently given us a careful statement identifying some of the difficultiesin drafting protests and describing means of avoiding them while stillcommnicating. objections to other states.Having said all this. however, the academic observer purporting to talkabout international law cannot offer realistic cornrnent on this aspect of statepractice in the aggregate, and it is a very important aspect. On the other hand,some protest messages are available. As a result of a request, I have gottenthe text of thirteen protests, most in 1985 and 1986, of the several dozen saidto have been transmitted since 1982. I have no idea whether these arerepresentative or even what standards would be relevant for deciding that.The article by David Colson indicates that the style of particular protests iscrafted with the specific recipient in mind.

I intend to comment on one aspect common to several of these protests,after some preliminary remarks indicating the context for their consideration.

Two major international problems facing states. in the aftermath of thedecade and a half of preoccupation with LOS negotiations are the same asthose which provoked those negotiations in the first place. These are thegeographic extent of national jurisdiction and the scope of substantivecompetence within the jurisdictional boundary. Sometimes dissatisfactionwith the scope of jurisdiction leads to changes in claims about its extent, inthe hope of improving matters lrorn the coastal state perspective. TheCanadia~ claim to straight baselines in the Arctic is an example of this.

Although in practice claims concerning geographic extent and scopeusually involve unilateral state action, as do the resulting protests, the outcomeof the LOS negotiations adds an ingredient not formerly available. Nowadaysnational claims and third-party decision-makers alike sometimes invoke theLOS treaty to support their views as if the treaty provision prescribed theappropriate standard of conduct, Of course the claimants do not invoke thetreaty qr~rr treaty, but rather take the now familiar approach of arguing thatthe treaty principles are customary law principles, Not infrequently thisapproach is adopted even though the re is little or no evidence of state practiceto add to the supporting argument.Lawyers will of course seize on any colorable authority they can cite tolegitimate claims put forward on behalf of a cause. The reason for callingattention to this standard form of legal argumentation is that the 1.OS treatyis not in effect which is not unusual in itself! but some very importantparticipants in the LOS negotiations, especially the United States, have notsigned the treaty and the latter state has firmly rejected it, At the same time,however, the United States takes the formal position that the non-seabedportions of the treaty are "generally reflective of customary law" which bindsthe world. It is not wholly clear what "generally reflective" is intended tocon~ey, but apparently virtually all non-seabed provisions of the treaty arebelieved to be similar, if not identical, to the substantive prescriptions ofcustomary international law.In this context a major point to note about the stream of claimsreferring to LOS treaty principles as customary Iaw is that sometimes thereliance on the LOS treaty appears to arise more from the general politicalusefulness of the reliance than from the soundrtess of the specilic legalProposition at stake. In such a context it cannot be assumed that mere citationot the LOS treaty provision by a state, or by an arbitral tribunal, is sufficientte demonstrate that the legal proposition being asserted is actually supportedby state practice. In my view the treaty is sometimes invoked as customary

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law under circumstances that suggest the invoker has an extraneous agenda tofulfill that may outweigh belief in the validity of the legal propositions beingadvanced.

Among the U.S, protest messages referring to the LOS treaty asreflecting customary law, opposed to the views of the recipient state,references are made to transit passage both of aircraft and of vessels,archipelagic waters, archipelagic sea lanes passage, closing lines for bays,criteria for straight baselines, the absence of any requirement forauthorization or notification of passage through the territorial sea, priority forallocations of surplus fishery resources in the exclusive economic zone, thescope of coastal state discretion to determine the allowable catch, harvestingcapacity and surplus allocation, the extent of coastal state criminal jurisdictionin the exclusive economic zone, and, finally, the provisions of Article 76 anthe extent of the continental shelf,

Although these messages are only a small fraction of the protests onLOS issues, they give evidence of a conscious effort to spread the messagethat the nan-seabed portions of the LOS treaty and customary internationallaw are the same. In my view there are serious doubts about the validity ofassertions about the treaty and custoinary law in several of these messages. Inothers no serious question could fairly be raised. In my view the fervor of thecampaign may have led to some serious mistakes. l will cotntnent upon threemessages.

The first two are the U,S. response to the recent claims by Ecuador andChile to extend their continental shelves beyond 200 miles. In both instancesthe claims cited Article 76 of the LOS treaty as support, although Ecuador hasnot signed the treaty and Chile, while a signatory, has not ratified. Withoutgoing into detail, neither claiin finds support in the substantive criteria ofArticle 76 even assuming it were applicable as such, which, of course, it isnot.

The point here is that the United States protested both claims but noton the basis that Article 76 is irrelevant. The United States took the exactopposite tack, namely that Article 76, paragraphs 4 and S, were alreadycustomary law but that the concrete circumstances of the two claims did notmeet these criteria. In other words, the United States agreed that theappropriate decision criteria were to be found in Article 76.

It is this claim, apparently common ta the three states, that the specificbroad margin provisions of Article 76 are customary law that is of interest andworthy of comment presently. The broad margin provisions of Article 76 werelaboriously negotiated, had no connection whatsoever with prior statepractice, and still have no basis in contemporary practice. Apart from thisspecific incident, so far as I am aware, the United States has taken no positionon the relevant parts of Article 76 and specifically has taken no position onArticle 82 which was one of the main quid pro quo for the broad marginprovisions of Article 76,

This being the situation -- no national position of the U.S, and virtuallyno international practice other than the claims under protest -- it hardlyseems radical to raise a question about what is going on. With nothing but theLOS Convention in hand, for the United States in the context of zero statepractice to insist that Article 76 is already customary law must come fromsome motivation arising elsewhere than an evaluation of state practice or ofthe l982 treaty. Given the apparent urgency of the need for wrapping itselfin the non-seabed portions of the treaty, it is not implausible to believe thatthe United States wishes to use every opportunity to convince others that

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virtually all of the non-seabed provisions of the LOS Convention are alreadycustomary law, even those provisions which have none of the characteristicsof customary law principles, We a!l know why this need tnight be felt. Butsympathy for the dilernrna is one thing, agreeing on the solution to it is a verydiff'erent matter.

This particular situation seems to be an especially unappealing one forinsisting on the status of the convention principles as customary law. Theappearance, or perhaps it is better stated as the odor, of picking and choosingis unusually strong in this vicinity. The agreemertt on the broad marginprovisions rested not only on the trade-off of revenue sharing beyond 200miles, but also on the acceptance of an elaborate, especially created,third-party decision procedure designed to discourage easy claims and toassure that such claims as might be made were founded on a solid basis of'scientific data regarding the critical characteristics of the area that justifiedthe claim.

To take the position now that the Article 76 provisions on the foot ofthe slope and the depth of' the sediment are a matter of customary law appearsto dispense with the aforementioned safeguards as if they are insignificant.It is impossible to argue plausibly that the requirement for sharing revenuefrorrt operations beyond 200 miles is established customary international law-- no one in the world wouM believe that. And it is perfectly obvious thatArticle 76 8! and the contents of Annex II on the Commission on the Limitsof the Continental Shelf are not found in the general practice of states. Butif these are not also customary law, and the other paragraphs of Article 76 arecustomary law, then there can be no assurance founded in internationalprocedures that coastal states claims beyond 200 miles have any substance tothem other than air.

These points seem so painf ully obvious that it is somewhat embarrassingto take the time here to make them. %hat we appear to be seeing in thisinstance is not too dissimilar to the attitudes demonstrated in other instancesby the U.S. State Department and the U.S. executive branch generally inrecent years of simple contempt for legal standards that do not fit theirperceptions of need, If the requirements of law are not met, so much theworse for the law. It is safe to say that this attitude is not going to last foreverand that its continuation is likely to prove costly to the United States in thesacrifice of important interests and the continued general loss of credibilityon the international level.

A second instance of citing the LOS treaty as customary law by theUnited States, and therefore as the source of authority for a claim tojurisdiction, raises a question about the use of the treaty to support a claimto expand the scope of coastal state jurisdiction in the KKZ. lt may berecalled, although only for the record since it hardly seems necessaryotherwise, that the United States was among the principal states concernedwith the question of the scope of jurisdiction if the institution of thee3tc!usive economic zone were to be established in the LOS treaty. The UnitedStates was a leader in seeking to restrict coastal jurisdiction to functionalpurposes, as opposed to broad coastal state jurisdiction as a rnatter ofprinciple, in order to safeguard the use of the KEZ for navigation and otherlawful purposes. These were legitimate concerns and they elicited considerablelegal creativity in establishing the various formula for distinguishing the EEZfrom the territorial sea and for recognizing that vital high seas rights were tobe available in the FEZ without serious encroachment by the coastal state,

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lt is because this issue was so carefully and deftly dealt with in the I OSnegotiations and because the concept of the EEZ and the balance ol rightstherein are so critical to an evolution of the law ot the sea preserving. highseas rights that it is important to monitor the behavior of nations irl, claimingauthority in this region, As in other instances, the views of the United Statesare of special interest in light of its general position and views.

For these reasons the recent incident, which has still not tun its course,involving the United States claim to exercise its general criminal jurisdictionover certain specif ic activities aboard a foreign vessel in the U.S, FEZ bringsinto question the viabilitv of the balance between coastal state functiona'.jurisdiction and flag state jurisdiction, What this incident suggests is that thisbalance may be tenuous ar best when events in the EEZ focus strongly feltconcerns, even emotions, in the coastal tate,

Perhaps rnanv of you are not as familiar v'ith this incident and itsconsequences as those of us living in the region of the Northeast PacificOcean where it has been reported in nev spapers. Brief ly what happened isthat a female United States fisheries observer aboard a Korean 1 ishing vessel the FV Shin Yang IIO! in the U.S, EEZ alleged that she was sexuallyharrassed and assaulted by the vessel's captain, The captain was charged inthe U.S. federal district court in Alaska for criminal violations of theMagnuson Act and implementing regulations and also under } 8 U.S,C, Sectionl l l and I l l4 which make it a crime to assault a person having the status ofa federal employee as defined in the statute. ln addition the vessel was seizedin a civil forfeiture proceeding, which is still pending. Finally, the victim ofthe alleged assault filed a personal action for dantages for the harm allegedlycaused by the captain.

The above is a very sparse statement of' the facts. The investigationreport states that the "incident" allegedly occurred not once but repeatedlyover the course of several days, i.e., that there were repeated occasions ofharrassrnent or assault. The allegations were very serious and understandablycould lead to a determined effort to prosecute and to impose a severe criminalpenalty.

When this case carne to trial, the outcome was a hung jury on theallegations of sexual assault; the jury was split evenly on whether the case wasmade. Subsequently, the defendant pleaded nolo cn~rrendere to an harrassmentcharge and was fined $5000. The United States is continuing its efforts toforfeit the vessel and the victim continues to pursue a civil action fordamages.It is not wholly clear why the U.S. brought criminal charges under thefederal assault statute in addition to the Magnuson Act since the latter raisesno problem of' jurisdiction under international law v hile the former appearsto. The Magnuson Act criminal provisions all have to do with enforcing thelegislation, hence the criminal jurisdiction claimed is directly tied to the.purpose of the legislation and is not a general claim to criminal jurisdiction.On the other hand, it is f'airly elementary law that general criminaljurisdiction is territorial, whereas the EEZ is not part of' U.S. territory eitheras a rnatter of U.S-. assertion or under international law. The United Statesdoes not assert jurisdiction on the nationality principle, based on Thenationality of the victim. Since the incident occurred aboard a Korean flagvessel, there would be no quesiton that Korean law applied and, under mostnotions of jurisdiction, that Korea had exclusive jurisdiction in regard Togeneral criminal law violations aboard the ship.

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My understanding of the situation is that it was believed to be possibleto apply the criminal provisions of the Magnuson Act only to impose a fine,whereas a conv iction under the federal assault statute could also carry a prisonterm. Apparently there was the feeling that this incident was serious enoughto warrant imprisonment. ln addition, perhaps of equal or more importance,this was not the only time such incidents had occurred and there may havebeen thought that some deterrence was in order aimed at the individual asv'ell as the ship owner who employs the captain and crew.

On 23 December 1986, Korea sent a diplomatic note to the U.S.regarding the l J.S. actions. I have not been ab!e to secure a copy of the notebut assume that it was a protest to the assertion of U.S. criminal jurisdiction.According to the U.S, response, the Korean note referred to the exercise ofU.S. criminal jurisdiction against the master of a Korean flag vessel on thehigh seas,ln briel, the United States note stated that the incident took place in theU,S. EEZ which was established consistently with Part V of the LOS treaty,"the nonseabed portions of which Convention the United States considersgenerally reflective of customary international law.' But, the note continued,while high seas lreedoms and principles are applicable in the EEZ. the treatyalso provides "that high seas rules such as the exclusive juridiction of the flag

apply in the exclusive economic zone 'in so far as they are notincompatible' with the legal regime for that zone."The note continues by stating that in the EEZ the United States hassovereign rights over "natural resource-related activities" which is not whatthe I.OS treaty provides! and that it has the "full legal right underinternational law to board, inspect and arrest ships engaged inresource-relatetl activity and to take judicial proceedings as necessary,including the imposition ot civil and criminal penalties for violations ofresource laws and regulations, subject to any applicable limitation undercustomary international lav or existing agreement.'The key part of the U.S. note immediately follows this quotation.

Fundarrtenta! to the right of a state to manage and exploit the livingresources of its exclusive economic zone is the ability to placeenforcement and/or scientific observers on board foreign vesselpermitted to fish therein, It is the view of the Ciovernrnent of theUnited States that, under international law, the United States likewiseenjoys the full legal right to adopt and enforce legislation which isdirected at the protection of fisheries observers in its exclusiveeconomic zone. The right to exercise jurisdiction for this purpose,including criminal j urisdiction, is a natural concomitant of thesovereign rights ol the United States over the management of itsresources in its exclusive. economic zone�.

The note concluded by noting that Korea has jurisdiction over its flagvessels and the crews, but that in thts particular case the United States hadconcurrent jurisdiction.This note inspires some general comments. The note declares that theU.S. has sovereign rights not just over resources but over resource-relatedactivities, but it does not def ine such activities. lt seems to me that what is a"«source-related activity" is a critical question, because unless that categorywere narrowly conceived there would be considerable potential for vastlyexpanded coastal jurisdiction displacing flag state authority, Certainly itseems

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fair to say that the coastal state has sufficient authority in the EEZ to carryout the functions that are specif'ically within its competence, i.e., to exerciseits sovereign rights over resources. And one does not have any serious doubtthat the coastal state should be able to protect the officials who must beemployed to carry out the practical steps required to exercise sovereign rightsin the EEZ. If this is the extent of "resource-related" then one could not takeexception to the U.S. position.

In the particular case, however, there was certainly a noncontroversialstatutory base for exercising the protective jurisdiction that is undoubtedlyneeded in the EEZ for observers who undertake lengthy sojourns aboardforeign. vessels fishing in the zone. The Magnuson Act and its implementingregulations were specifically directed to the very activity in question. That is,the Act was designed to deal with foreign fishing in the U.S. EEZ and itscriminal sanctions were aimed at protecting personnel implementing the Act,But if this is so, and it seems to be a justifiable interpretation of the Act,why did the United States invoke the general federal assault statute which isaimed at protecting specified federal employees but not aimed at personsoutside U.S. territory? It hardly seems a sufficient answer that the observershould reasonably be considered to fall within the category of "federalemployee" protected by the statute. This does not answer the question ofwhether it is acceptable under international law to extend this legislation toevents occurring outside the United States, especially when another federalstatute was adopted for the specific purpose.

I speculated above about the possible reasons for the choices made inthis instance. I do not know how the decision process works in these instancesas between the justice Department and the State Department and cannotcomment on what considerations were weighed in making the initial decisionto invoke the assault statute, My reservation is addressed to the StateDepartment response, which raises a question.

The question is: how far does this notion ol protective jurisdictionextencf? Suppose, instead of assault, that the observer has been injured fromother causes, such as defective machinery, or from hazardous substances, orfrom unsafe practices in operating harvesting or processing machinery. Dofederal statutes and imptementing regulations applicable to these and othermatters within the United States now extend to events aboard foreign vesselsin the EEZ? A somewhat similar question arises with respect to admiraltyIaw, but this is generally applicable in private law suits and often involvesstandards common to most nations. In these latter instances there is usually noquestion of a threat to exclusive flag jurisdiction to control the ship or governits lawful operations,

Of the three messages discussed here, the U.S. response to the K.oreannote is least objectionable because it is not all that clear that the U.S. expectsto apply general criminal law or other general legislation to the KEZ, althoughperhaps this incident may lead to demands for that action. Additionally, onecannot read the investigative report in this incident without sympathy for thefeeling in a prosecutor or others responsible that jurisdictional objectionsshould not be determinative, It is part of the point I wish to make, however,that situations of this kind may lead to encroachments on jurisdictionalarrangements that seek to safeguard international navigation and contributeto the breakdown of those arrangements.

Insofar as this Korean incident is concerned, one specificrecommendation is that the Magrtuson Act be revised to make it clearer thanit now is that the specific criminal provisions and penalties in the Act extend

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to observers who are hired by contract with third parties and are not officiallyemployees of the United States. A more general itnplication is that legislationadopted for application in the EEZ should be drafted carefully to cover alllegitimate coastal state interests, thus avoiding the temptation to resort to thegeneral legal system of that state.The overall problem of the United States in co-existing in a worldwhere others accept the I.OS Treaty but we do not will continue, Mycornrneats here are that the enthusiasm for having the benefits of the treatyshould be moderated to be sure that the claims being made are soundly basedon evidence of state practice that will firmly support the claim that a specificProvision of the LOS treaty is also customary law. Kxcessive ciaixns may turnout to be harmful to the interests of the U.S. and states generaUy.

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THE HIGH SEAS AND THE INTERNATIOIVAI SEABED AREA

Bernard H. OxmanFaculty of Law

University of Miami

lÃTRODUCTIONThe purpose of this paper is to examine the extent to which the legal

principles associated with the regime of the high seas apply to the seabedbeyond the limits of coastal state jurisdiction. In this regard, its object is toclarify, and thereby perhaps narrow, the scope of the current disputeconcerning the nature of the regime applicable to that area of the seabed.Resolution of what appear to be the real issues in dispute by a process ofdeductive reasoning from a disputed assumption regarding status is not thegoal of thts paper.

Much of the public debate on the issue of the relationship betweea thehigh seas regime and the seabed beyond the limits of coastal state jurisdictionwotrld lead one to believe that the inquiry is a relatively neat one. Those whobelieve that the status of that seabed area is, or is not, high seas largely endthe legal inquiry there. The former group asserts that all uses of the seabedand subsoil are governed by jurisdictional rules derived direct! y or by analogyfrom existing high seas law, The latter group asserts that the seabed beyondthe limits of coastal state jurisdiction is not governed by those rules at all. Thelawyer's job would then be to decide which advocate is right.

Fainting with a broad brush has its uses. lt magnifies, and therebyorients, the point of view, The observer can fill in the details in a manner thatderives, in a consistent and organized fashion, from the observer'sinterpretation of the basic design. Advocates find it easier to attract adherentsto a broad and appealing canvas than to a kaleidoscope of varying, conflictingand gap-laden minutiae.

If, however, one wishes to present an accurate picture of the state ofthe law at this stage, one cannot avoid the messy details. The reality is thatthere is no consensus among states at this time on the underlying issue, It maybe that one side is, or will turn out to be, correct. That we cannot know wi;thcertainty today.

What we do know is that the areas of consensus and dispute are moresharply def ined tham the debate might suggest, Examining them in some detailmay help us ascertain where we are, and what needs to be done.

GKOQltAPIG SCOPE OI' TSE SEAIf one asks whether the seabed and subsoil are part of the sea for

purposes of applying the law of the sea, there can be no doubt that the atLsweris "yes." The 1958 Conventions on the Territorial Sea and the Contiguous

The views expressed herein are my own.

2This debate is not unlike the debate regarding, the status of the exclusiveeconomic zone. See note 15 infra.

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Zone, the High Seas, and the Continental Shelf~ deal with the seabed andsubsoil. Many provisions of the 1982 Convention on the Law of the Sea alsodeal with the seabed and subsoil.This seemingly obvious point has potential legal implications. The sea,including the seabed and subsoil, are subject to a special system of law thatincorporates sotne, but not all, of the rules applicable on land. Perhaps themost itnportant difference is that the rule that sovereignty may be acqttiredby virtue of effective occupation is a stranger to the modern law of the sea.Internal waters may be established by coastal states within geographic litnitadetermined by the international law of the sea without reference to effectiveoccupation, No other states may claim jurisdiction there. Every coastal stateis entitled to a territorial sea, continental shelf, and now exclusive economiczone, whose rnaxirnutn limits are deterxnined bg the international law of thesea without reference to effective occupation. No other states may claimjurisdiction there. No claims of sovereignty or territorial jurisdiction are

Convention on the Territorial Sea and the Contiguous Zone, Apr. 29,1958, arts. 2, 14�!, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N,T.S. 205.

Convention on the High Seas, Apr. 29, 1958, arts. 2, 24-29, 13 U.S.T.2312, T.I.A.S. No, 5200, 450 U.N.T.S. 82.

Convention on the Continental Shelf, Apr, 29, 1958, 15 U.S.T. 4'71,T.I.A.S. No, 5578, 499 U.hI.T.S. 311.

United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N.Pub. Sales No. K.83.V.5 �983!.

7The question of historic bays is properly regarded as a question ofacquisition of title by prescription rather than acquisition of title over rerranirll'its by effective occupation. The requirements for prescriptive title aremore exacting, particularly with regard to acquiescence by other states.Moreover, the doctine of historic bays is applied only in limited coastal areaslargely enclosed by land.

dArticle 2 of the Convention on the Continental Shelf, note 5 s>P«»darticle '77 of the United Nations Convention on the Law of the Sea, note 6supra. expressly provide that the rights of the coastal state over thecontinental shelf do not depend on occupation, effective or notional. Article241 of the U,N. Convention elaborates on the more general theme bypro~ iding that marine scientific research shall not constitute the legal basis forany claim to any part of the marine environment or its resources.

4ll

permitted beyond the limits of coastal state jurisdiction established byinternational law.

This may at least establish the principle that, whatever one's point ofview, the received regime of the seabed beyond coastal state jurisdiction isnot a complete tabula rasa. An attempt to extend first-come first-served rulesof pre-emptive occupation to large chunks of the seabed is inconsistent withthe nature of the modern law of the sea, In itself, this does not mean theseabed and subsoil and their resources cannot be used, but it may mean thatpre-emptive claims based on effective occupation need not be respected.

GEOGRAPHIC SCOPE OP THE HIGH SEAS

The Convention on the High SeasArticle 1 of the 1958 Convention on the High Seas states:

The term "high seas" means all parts of the sea that are not included inthe territorial sea or in the internal waters of a State.

With respect to the freedom of the high seas, article 2 of thatConvention states in part:

It comprises, inter aiia, both for coastal and non-coastal States:�! Freedom of navigation;�! Freedom of fishing;�! Freedom to lay submarine cables and pipelines;�! Freedom to fly over the high seas,

Article 24 of the High Seas Convention addresses the prevention ofpollution of the seas by the discharge of oil "from ships or pipelines orresulting from the exploitation and exploration of the seabed and its subsoil,"Article 25 addresses the preventio~ of pollution of the seas "from the dumpingof radioactive waste."

Articles 26 to 29 of the High Seas Convention contain more detailedrules regarding submarine cables and pipelines, including the duty of thecoastal state not to impede the laying or maintenance of such cables or

9Convention on the High Seas, art, 2, note 4 supra; United NationsConvention on the Law of the Sea, arts. 87, 89, l37, note 6 supra; Declarationof Principles Governing the Sea-Bed and the Ocean Floor, and the SubsoilThereof, beyond the Limits of National Jurisdiction, U.N.G.A. Res.2749 XXV! I97l!,

Invoking the Lolus case on this issue misses the point. There is ampleevidence that claims of sovereignty or exclusive jurisdiction based oneffective occupation are prohibited by the law of the sea as a whole, whateverthe nature of the specific regime that applies. 1d.

Convention on the High Seas, note 4 .supra.

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pipelines on its continental shelf. Articles 27 and 28 deal with responsibilityfor the breaking or injury "of a submarine cable beneath the high seas."

The foregoing texts do not necessarily clarify the broad question ofwhether the seabed and subsoil are part of the high seas. The references tothe freedom to fly over the high seas" and to "a submarine cable beneath thehigh seas" may be used to support either conclusion, and may or may not berelevant,' If the seabed and subsoil are part of the sea for purposes of thelaw of the sea, and if the high seas embraces "all parts of the sea" beyondspecified coastal limits, then it would seem to follow that the seabed andsubsoil beyond those coastal limits are part of the high seas. But even the1958 Conventions are not that simple.

The precise question is which rules of the law of the sea apply. The textmakes it clear that, to the extent one regards the Convention on the High Seasas embodying the regime of the high seas at the time, that regime expresslyregulates at least some uses of the seabed. These include not only submarinecables and pipelines, dumping, and pollution resulting from exploitation andexploration of the seabed and subsoil, but activities traditionally associatedwith the freedotns of the high seas such as anchoring.

The simultaneous drafting and adoption of the Convention on theContinental Shelf makes it clear, however, that not all uses of the seabed ofthe high seas are subject to all rules of high seas law. The exploration andexploitation of the natural resources of the continental shelf are not freedomsof the high seas; to the contrary, they are subject to the exclusive sovereignrights of the coastal state, At the same time, the High Seas Convention itselfelaborates certain obligations of the coastal state with respect to the exerciseof those very sovereign rights, notably with respect to pollution andsubmarine cables and pipelines. The end result is that all states enjoy somefreedoms of the high seas on the seabed of the continental shelf, but not all,and that the coastal state enjoys exclusive rights with respect to the resourcesof the continental shelf, subject to certain obligations derived from the highseas regime. A categorical statement that the continental shelf is, or is not,high seas would not even begin to describe that result with any accuracy.

This situation suggests only a partial resolution of the issue of theapplicability of the high seas regime to the seabed beyond the continentalshelf. It is clear that to some extent the high seas regime including certainfreedoms of' the high seas! does apply to the seabed. Beyond that, it dependson one's point of view. The exclusive rights of the coastal state overcontinental shelf resources are regarded by some as an exception to thegeneral principle that all uses of the seabed and subsoil of the high seas aresubject to the high seas regime, Alternatively, the existence of those coastalstate rights is regarded by others as evidence of a principle that, at leastinsofar as natural resources are concerned, high seas freedoms do not applyto the seabed and subsoil.

The Iravaux preparataires of the 1958 Conventions shed little light onthe issue of the application of the high seas regime to seabed resources beyond

Article 87 of the United Rations Convention on the Law of the Seasubstitutes the term "freedom of' overflight" for the term "freedom to fly overthe high seas." This would suggest that little if any significance should beattached to the clause "over the high seas" today.

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the continental shelf. In its commentary on the text that became article 2 ofthe Convention on the High Seas, the International Law Commission stated:

The list of freedoms of the high seas contained in this article is notrestrictive.... The Commission has not made specific mention of thefreedom to explore or exploit the subsoil of the high seas. It consideredthat apart from the case of the exploitation or exploration of the soilor subsoil of a continental shelf -- a case dealt with separately ... below-- such exploitation had not yet assumed sufficient practical importanceto justify special regulation.'

Some read this statement to mean that the freedom to explore andexploit the seabed and subsoil beyond the continental shelf exists but is notspecially regulated. Others read it to mean that the High Seas Conventiondoes not deal with such exploration and exploitation at all.

The Declaration of' PrinciplesThe preamble of the Declaration of Principles regarding the seabed

beyond the limts of national jurisdiction, adopted by the U.N. GeneralAssembly, contains the foilowing clause;

Recogmizirrg that the existing legal regime of the high seas does notprovide substantive rules for regulating the exploration of the aforesa.idarea and the exploitation of its resources.

This clause has been interpreted by proponents of the alternativepositions in the same tnanner as the commentary of the International LawCommission. It should nevertheless be noted that both this clause and theCommission's cotnrnentary deal only with resources, while both the High SeasConvention and the Declaration of Principles address matters going beyostd'the use of resources. At the least this suggests that there were no seriousdifferences regarding the application of high seas law to non-resource uses.

The Umited Nations Convention on the Law of the SeaMost of Part VII of the United Nations Convention on the Law of the

Sea is identical to the Convention on the High Seas. The most significantchange for purposes of this analysis is that the Convention contains a separatePart XI dealing with the seabed beyond the limits of coastal state jurisdiction.Prior ta examining the impact of Part XI, however, it is useful to examinePart VII to determine if the few changes made in the articles dealing with thehigh seas confirtn, or alter, the conclusions we might draw from the text ofthe Convention on the High Seas.

Unlike the High Seas Convention, Part Vll of the l982 Convention doesnot define the high seas. Article 86 states in pertinent part'

The provisions of this Part apply to all parts of the sea that are notincluded in the exclusive economic zone, in the territorial sea or in the

l956 Rep. Int'l L. Comm, 24.

14Declaration of Principles, note 9 supra.

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internal waters of a State, or in the archipelagic waters of anarchipelagic State,

This change was the result of lengthy negotiations regarding the question ofthe application of the high seas regime to the exclusive econorrmic zone.' ltsuggests that the relevant question is application of the rules of high seas law,rather than the status of the area, This is made clear, for example, in Part Vof the Convention regarding the exclusive economic zone. Part V incorporatesvirtually all of the non-resource provisions of Part VII into the econotrtie zoneregime "in so far as they are not incompatible with this Fart." However,Pursuant to articles 56 and 58, not all of the freedoms of th high seas continueto apply to the exclusive economic zone; freedom of fishing, for example,yields to coastal state sovereign rights over living resources.Artother important change is made in article 87 onhigh seas freedoms.Kt preserves the words inter alia from article 2 of the High Seas Convention,making clear that the enumeration of certain high seas freedoms is notexhaustive. At the same time, it expands and qualifies the kist of enumeratedfreedoms as follows;

a! freedom of navigation; b! freedom of overflight; c! freedom to lay submarine cables and pipelines, subject to Part Vl d! freedom to construct artificial islands and other installations

permitted under international law, subject to Part Vl; e! freedom of fishing, subject to the conditions laid down in sec-tion 2;" f! freedom of scientific research, subject to Parts VI and X111.928

15The author has previously expressed his views on this matter at the Lawof the Sea!nstitute and elsewhere, 0xtrtan, An Analysis of the ExrhsiveEconomic Zone as Forrnrdated in the Inforrrtai Corrrposite Negotiating Text,in T, A. Clingan, Law of' the Sea; State Practice in Zones of SpecialJu~isdiction Proceedings of the Law of the Sea 1nstitute, Thirteenth AnnualConference! 57, 77-78 �982!; Oxrnan, The Third Uniled Natiorrs Conferenceon Jhe Law of the Sea; The 1977 New Fork Session, 72 Arn. J, lnt'l L. 57,67-7~. "[T]he question whether relevant aspects of the economic zone regimeare part Of the high Sea regime haa been reSOlved by lnaking relevant aSpectsof the high seas regime part of the economic zone regime and by deleting thegeographic definition of the high seas." Id. at 74.

part Vl deals with the continental shelf.17Section 2 deals with conservation and management of the living

reso-urces of the high seas.

Itspart Xlll deals with marine scientific research.

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For purposes of this study, two of the changes in article 87 areparticularly significant First, the enumerated freedoms include at least one-other freedom that necessarily entails use of the seabed and subsoil, namelythe construction of artificial islands and installations. Second, while theexercise of certain high seas freedoms on the seabed is expressly qualified bycross-references to Part Vl continental shelf!, there are no qualifyingcross-references to Part Xl seabed beyond the limits of nationaljurisdiction!.

Concbssions Regarding Geographic Scope of the High SeasThe foregoing analysis clearly suggests that there is no serious dispute

regarding the application of high seas law to at least some uses ol the seabedand subsoil beyond the limits of coastal state jurisdiction. Among these wouldbe the freedom to anchor, to lay submarine cables and pipelines, to construct

artificial islands and other installations, and to conduct marine scientificresearch. Needless to say, these freedoms must be exercised with due regardto other uses.

lt is at this point that this conclusion must be tested against thepositions takeo by states with specific reference to the seabed beyond thelimits of coastal state jurisdiction,

CLAIMS TO THE SEABEDThe fundamental principle of high seas law regarding natiortaI claims

is stated in article 2 of the High Seas Convention:

The high seas being open to all nations, no State may validly purportto subject any part of them to its sovereignty.

Articles 87 and 89 of the l982 Convention repeat this principle.The U.N. General Assembly's Declaration of Principles regarding the

seabed beyond the limits of national jurisdiction states:

The area shall not be subject to appropriation by any means by Statesor persons, natural or juridical, and no State shall claim or exercisesovereignty or sovereign rights over any part thereof.

Article J37 of the United Nations Convention on the Law of the Seastates with respect to the same area:

l~ I he author does not suggest that too much be made of the second point.It does not mean that article 87 should be read in isolation from Part XI. Itdoes suggest, however, that Part XI was not regarded as contradicting theapplication of high seas law to at least some uses of the seabed irt principleThe author has reported elsewhere on the difficulties encountered by theDrafing Committee of the Conference in reconciling texts emerging fromdifferent main committees of the Conference. Oxrrtart, The Third UrtiteaNatr'orts Conference orr the Law o j the Sea. The Terrth Session, 76 Are. J. Int'II.. l, l7-19 I982!.

zo Declaration of Principles, note 9 supra.

4l6

No State shall claim or exercise sovereignty or sovereign rights overany part of the Area or its resources, nor shall any State or natural orjuridical person appropriate part thereof. No such claim or exercise ofsovereignty or sovereign rights nor such appropriation shall berecognized,

The United States Deep Seabed Hard Mineral Resources Act, asserting"high seas freedom to engage in exploration for, and commercially recoveryof, hard mineral resources of the deep seabed," expressly affirms that byenactment of the Act the United States "does not thereby assert sovereigntyor sovereign or exclusive rights or jurisdiction over, or the ownership of, anyareas or resources in the deep seabed." "

lt is clear from these texts that the underlying principle is the same,although the language and perhaps some nuances are different. Those whoreject the broad principle that the seabed has the status of high seas in factaccept one ol its most important implications, namely the prohibition onnational claims. Those who reject the broad principle that all states are boundby Part XI of the Convention in fact accept the prohibition on claims if onlyby virtue of their position that the area has the status of high seas.

This point of agreement is not as obvious as it seems, and may in facterode unless the existence of such agreement is emphasized. A number ofcommentators have on occasion confused the position that the area is high seaswith the position that no law, or at least no traditional law, applies, If thearea is high seas, no part of it may be subjected to national claims, If no lawapplies, then those who reject Part Xl of the Convention may contend thatstates are theoretically free to make claims on the grounds that such claims arenot prohibited by international law.

ln this regard, it is important to recognize what is, and is not, in disputewith respect to the legislation and agreements of the United States and certainother states with respect to deep seabed mining. The United States statuteprohibits the issuance of authorizations to mine by the United States if thearea proposed is already subject to a previous authorization issued by areciprocating state. The Provisional Understanding Regarding Deep Seabed24

Mining agreed by several Western states in essence implements thisreciprocating state system. In the words of the statute, the United Statesthereby "exercises its jurisdiction over United States citizens and vessels, and

zi30 U.S.C. Section 1402,

It is important to bear in mind that none of these texts prohibit use,including exploration and exp1oitation of resources. The question of theappropriate rules governing dif'ferent uses is another matter.

See note 10 supra,

30 U.S.C. Section 1412.

Provisional Understanding Regarding Deep Seabed Mining, Aug, 3,1984, 23 Int'I L. Mat. 1354 �984!.

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r26foreign persons and vessels otherwise subject to its jurisdiction. ~ ~.ereciprocating states are doing the same No pre-emptive claim is made asagainst the world; what is asserted is a universal right to mine and a right ofeach state to prevent its nationals from mining,

Some may wish to argue that the universal right to mine tnay beexercised only in conformity with the provisions of the 1982 ConventiorLThey may also wish to argue that while no pre-ernptive claims are asserted asagainst the world, the legislation and agreements may create a politicalsituation in which any global agreement would have to respect the essestce ofexisting authorizations as a condition of acceptance. Be that as it may, thereis no basis at present for asserting that any state is violating the "no-claims"principle in letter or in spirit.

It is in the interests of all states to emphasize the universal agreementon this point, if only to prevent far-fetched interpretations of the due regardprinciple. While high seas law does not permit a pre-ernptive claim as againstnon-consenting states of an exclusive right to mine a site measuring thoosandsof square miles for several decades, all states are required to have deere regardto the exercise of the rights and freedotns of other states, including deepseabed mining. Apart from the question of the lawfulness of the rtsinirtg,there is ao doubt that unreasonable physical interference with a mining shipor installation would be prohibited.

Some have sought to go further, however, and convert the venerable"reasonable regard" or "due regard" principle into the functional equivalent28

of a pre-emptive claim. They argue that mining in an area already staked outby someone else violates the "due regard" obligation. There is no precedentfor such extended application of the principle with respect to fisheries or evennuclear tests. lt is contradicted by the limited and unobjectionable safety zoneprovisions of the Continental Shelf Convention and the United NationsConvention on the I aw of the Sea, which deal with installations that rxtaybe used to exploit resources located well beyond the safety zorLes. 'The verystates that advocates of such a position seek to benefit would presumablyshudder at the notion of such a broad extension ol the reasonable regard

30 U,S.C. Section l402.

Resolution ll appended to the Final Act of the Conference deals withthe protection of preparatory investment in pioneer activities. U.N. Pub. SalesNo. K.83.V.5 �983!, p. 158, 177-82.

High Seas Convention, art. 2, note 4 supra; United Nations Conventionon the Law of the Sea, arts. 87, 147, note 6 supra.

~Convention on the Continental Shelf, art. 5, note 5 supra.

United Nations Convention on the Law of the Sea, arts. 60, M, 147.260, note 6 supra. Article l47 combines the rules on safety zones irsparagraph 2 with its enunciation of the "reasonable regard" principle itsparagraphs 1 and 3,

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principle with respect to the waters of the high seas or the exclusive economiczone or even non-resource uses of the seabed.

The key point is that the reasonable regard principle must be read inconjunction with the "no claims" and universal use principles. Accordingly,whatever the position of states regarding the appropriate system for miningthe deep seabeds, it is not in their interests to loosen the restraints of the "noclaims" principle on those who take a different view of the regulation ofmining. Both the high seas and the Part XI advocates must be encouraged tolive with the restraints as well as the benefits of their position.

THE UNtvtsRsAt. UsE PRtNctt mArticle 2 of the High Seas Convention states that the high seas are open

to all nations. It goes on to state that freedom of the high seas "is exercisedunder the conditions laid down by these articles and by the other rules ofinternational law." Article 87 of the United Nations Convention on the Lawof the Sea provides, "The high seas are open to all States, whether coastal orland-locked. Freedom of the high seas is exercised under the conditions laiddown by this Convention and by other rules of international law."

The Declaration of' Principles regarding the seabed beyond nationaljurisdiction states, "The area shall be open to use exclusively for peacefulpurposes by all States, whether coastal or land-locked, without discrimination,in accordance with the international regime to be established." With respectto the same area, article 141 of the United Nations Convention on the Law ofthe Sea provides, "The Area shall be open to use exclusively for peacefulpurposes by all States, whether coastal or land-locked, without discriminationand without prejudice to the other provisions of this Part."

Part XI of the 1982 Convention does of course contain substantialrestrictions on the universal use principle with respect to the seabed beyondcoastal state jurisdiction, but these relate only to "activities in the Area." Theterm "activities in the Area" is expressly defined by article 1 to mean "allactivities of exploration for, and exploitation of, the resources of the Area."Article 133 defines "resources" to mean "all solid, liquid or gaseous mineralresources ur situ in the Area at or beneath the sea-bed, including polymetallicnodules."

Accordingly, the effect of Part XI with respect to activities other thanexploration and exploitation of mineral resources is the same as the effect ofthe high seas regime. The area is open to use by all states,

Moreover, nothing in the specific provisions regarding exploration andexploitation of mineral resources contradicts the universal use principle.Article 15! expressly contemplates access by all. Discrimination isprohibited, Article 150 g! indeed goes beyond this to encourage "theenhancement of opportunities for all States Parties, irrespective of their socialand economic systems or geographical location, to participate in thedevelopment of the resources of the Area."

In addition, it must be recognized that the idea that universal use of anarea is subject to generally agreed regulation is no stranger to the high seasregime. Article 10 of the High Seas Convention requires states to conform to

'United Nations Convention on the Law of the Sea, arts, 141, 151�! c!,152�!; ann. III, arts. 6�!, 6�!, 7�!, 7�!, ann. IV, arts. 12�!, 12�!, note 6supra.

419

generaBy accepted international standards regarding safety measures and laborconditions. Article 94 of the United Nations Convention on the Law of theSea elaborates on this duty at great length. The same idea forms thecornerstone of Part XII of the Convention regarding protection of the marineenvironment.32

The example of high seas fisheries is particularly instructive in thisregard. The right to fish on the high seas is expressly subject to conservationrules, including the duty to cooperate with other states in the adoption ofconservation measures.

Accordingly, the principle of international regulation of the explorationand exploitation of seabed resources is not unique to Part XI of the 1982Convention, but emerges from high seas law as well.

Questions of course remain regarding the scope of participation inregulation. Regulation of high seas fishing is generally entrusted to user states.although the basic duties are set forth in global conventions on the law of thesea. Environmental protection at sea is frequently addressed on a global basis,as evidenced not only by Fart XII of the l982 Convention and variousenvironmental treaties, but by the establishment of the U.N. EnvironmentProgramme and the expanded composition of the Marine EnvironmentProtection Committee of the International Maritime Organization as comparedwith its Maritime Safety Committee. Under high seas law, an exclusive rightto mine a large area for an extended period can be established only with theconsent of others. As U.S. law and the negotiations among the Western statesparticipating in mining arrangements with each other clearly reveal, thatconsent is necessarily conditioned on agreed understandings regarding the sizeof mine sites, the duration of the rights, the means of acquiring priority, andassociated environmental and other conditions. An examination of thoseconditions will reveal striking similarities among national laws on deep seabedmining, the Provisional Understanding reached among Western states, andAnnex III of the United Nations Convention on the Law of the Sea.

It of course comes as no surprise to discover that the essence of theproblem regarding Part XI of the 1982 Convention concerns the object, natureand administration of some of the mining regulations. Resolution of thosedifficulties does not appear imminent. However difficult and important theseissues may be, they nevertheless do not entail rejection of either the universaluse principle or the agreed regulation principle by either side.

32See United Nations Convention on the Law of the Sea, arts. 213-219,note 6 supra.

33Convention on Fishing and Conservation of' the Living Resources ofthe High Seas, Apr. 29, 1958, arts. 1, 4, 17 U.S.T. 138, T.l.A.S, No. 5969, 559U.N.T.S. 285; United Nations Convention on the Law of the Sea, arts.116-119, note 6 supra,

34See 30 U.S.C. Section 1428; Provisional Understanding Regarding DeepSeabed Matters, note 25 supra.

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THE REASONABLE REGhRD PRtNCIPLEIf everyone has the right to use an area for the same or diff'erentpurposes, it is clear that the right to use must be conditioned by a duty torespect others' right to use the same area.

Article 2 of the Convention on the High Seas provides that high seasfreedoms "shall be exercised by all States with reasona'hie regard to theinterests of other States in their exercise of the freedom of the high seas."Needless to say, if one regards deep seabed mining as a freedom of' the highseas, this principle protects mining activities from interf'erence and at thesame time limits mining activities that may interfere with other uses,including other mining activities.Article 87 of the 1982 Convention repeats this principle, expresslyincluding deep seabed mining:

These freedoms shall be exercised by all States with due regard for theinterests of other States in their exercise of the freedom of the highseas, and also with due regard for the rights under this Convention withrespect to activities in the Area.

With particular regard to deep seabed tnining, article 147 provides;l. Activities in the Area shall be carried out with reasonable regard forother activities in the marine environment.

3. Other activities in the marine environrnen! shall be conducted withreasonable regard for activities in the Area.

Once again, the dispute over high seas status is of no relevance. Thereasonable regard principle applies under either view.

Tstm PaaczrUL Pvaeosms Pawca Ur.Article 88 of the 1982 Convention states, "The high seas shall bereserved for peaceful purposes." Article 141 declares that the seabed beyondNational jurisdiction is open to use "exclusively for peacef'ul purposes "

The author has expressed his views on the meaning of this principleelsewhere, and will not repeat them here. The main point is that thisprinciple also involves no dispute between advocates and opponents of' thehigh seas status position.

Mmaea ScmrTmc RmssaacaArticle 87 of the 1982 Convention expressly identifies scientificresearch as one of the freedoms of the high seas, subject to the provisions of»it XIII of the Convention dealing with marine scientific research in moredetail. Article 240, which applies to all areas, provides, 'All States,irrespective of their geographical location, and competent international

The alternative use of the terms "reasonable regard" and "due regard" isof no consequence. See Oxrnrtn, The Regime of Warshi ps Utrder the UnitedNations Convention on the Ltd of the Sea, 24 Va. 3. Int'1 L. 809, 827 n,52

Id,, 829-32,

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orgartizations have the right to conduct marine scientific research subject tothe rights and duties of other States as provided for it in this Convention

With reference to the seabeds beyond national jurisdiction, article 143provides, "States Parties may carry out marine scientific research in the Are.,'and article 256 provides, "All States irrespective of their geographical location,and competent international organizations have the right, in conformity wi$hthe provisions of Part Xl, to conduct marine scientific research in the Area-

Article 143 is the only provision that specifically enumeratesrequirements for marine scientific research on the seabed beyond nationaljurisdiction. Its first and third paragraphs essentially summarize and cross-reference the requirements applicable to all marine scientific research underPart XIII. Its second paragraph deals with research conducted by the SeabedAuthority itself.

Once again, assuming general acceptance of the provisions of theConvention apart from Part XI, it is clear that the debate over high seas statusis irrelevant to the issue of marine scientific research.

THE COLIMON HERBAGE PRINctpLRThe Declaration of Principles adopted by the U.N. General Assembly

states, "The sea-bed and ocean floor, and the subsoil thereof, beyond thelimits of national jurisdiction hereinafter referred to as the area!, as well asthe resources of the area, are the common heritage of mankind." Article 136of the 1982 Convention declares, "The Area and its resources are the cotnrrtonheritage of mankind." No similar provision appears in the 1958 Conventionson the Law of the Sea or elsewhere in the 1982 Convention.

The debate over the deep seabeds is sometimes presented as a conoictbetween "high seas" and "common heritage." lt should be clear from all thematerials previously analyzed that this is misleading. The common heritageprinciple, as incorporated into part Xl of the 1982 Convention, existsalongside a significant number of other principles elaborated in Part XI thathave their origin in high seas law.

It is argued that the common heritage principle requires more elaborateinstitutional and substantive restraints on the "universal use" principle thanhave been customary on the high seas. Be that as it may, the very idea ofnegotiated restraints on the exercise of high seas freedoms is not alien to highseas law and tradition; quite to the contrary, it is an integral part of thesystem. One simply cannot imagine multiple and potentially conflicting usesof the high seas without agreement on ground rules. It is difficult to imaginethe absence of organizations such as IMO and ICAO devoted to the contirsualelaboration and administration of such ground rules with respect to particuIaruses. Protection of the marine environment in an area open to use by allrequires agreement on environmental restraints by all users, and mechanismsfor enforcing and up-dating those restraints.

In truth, there is nothing in the common heritage principle that isinconsistent with high seas law. States may accept any substantive or

The Convention text is not consistent in its use of the terms "States" and"States Parties." In the particular context of tnarine scientific research, thedifference in terminology would not appear to have any significance. Theargument that scientific research on the seabed is limited to parties would becontradicted by articles 87, 238 and 256 in any event.

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institutional restraints on their high seas freedoms that they believe suitable.Were Part XI "generally accepted," there would even be some basis in highseas law for arguing that at least some of the relevant regulations must berespected by all. Certainly in spirit, high seas law is far doser to the ideaof a common heritage of mankind than appropriation by coastal states.

The key question is whether the restraints of Part Xl that are notgenerally accepted may be imposed on non-parties. The argument that theymay not be so imposed is not peculiar to high seas law, but rather derivesfrom international law as a whole. That argument is wholly independent ofpositions regarding the common heritage principle, and indeed may even besupported by the principle. There is ample support in municipal law for thepremise that those with co-equal rights in a thing cannot be deprived of thoserights without consent. 39

CoNCLUStOHAs of today, the basic structure of the international law applicable to

the seabed beyond coastal state jurisdiction is agreed. National claims, areprohibited. The area is open to use by all. Any use of the area must beconducted with reasonable regard for other uses of the marine environment,and other uses of the marine environment must be conducted with reasonableregard for any use of the area. All uses of the area must be conducted inaccordance with the duty to protect and preserve the marine envirortrnent.

The significance of this level of agreement, given the alternatives,should not be obscured by debates over whether the agreed principles deriveas a legal rnatter, or purely as a historical matter, from high seas law,Broadside at acts on high seas law or on Part Xl of the Convention do littlemore than place in jeopardy those basic principles that are agreed, Suchattacks are far too sweeping to explain with any accuracy what is not agreed.

The area of disagreement concerns the nature and administration ofrestraints on the exploration and exploitation of mineral resources. Even inthis respect, the area of disagreement is far narrower than it seems. Forexample, by tyin~ the spatial and temporal criteria for exclusive rights to amine site to use, Part XI of the Convention is much closer to pure Lockeantheories of property than its ideological opponents seem prepared to admit.

It is natural that those favoring the restraints on mining set forth inPart XI argue that the exercise of a right of access to deep seabed resourcesis conditioned on compliance with those restraints, while those opposing therestraints argue that the right of access is independent of compliance withconditions that have not been agreed. It is implausible to assume that this

See Convention on the High Seas, art. 10, note 4 supra, United NationsConvention on the Law of the Sea, arts. 94, 213-19, note 6 supra.

The question of whether they may be compelled by a court to accept amonetary equi valent of those rights is presumably not relevant to this inquiry.

%e United Nations Convention on the Law of the Sea, ann. III, art. l7,para. 2, note 6 supra.

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kind of debate can be resolved in the abstract by invoking, or rejecting,, theapplication of high seas law as a whole.

More to the point, even with respect to the points of disagreement, thedebate over high seas status is irrelevant. Jn the words of article 2 of the HighSeas Convention, "freedom of the high seas is exercised under the conditionslaid down by these articles and by the other rules of international law." Thereal question is not whether there is a universal right to tnine, but whether"the other rules of international law" now include the restraints of Part Xl.That is a question to be answered by the principles applicable to theemergence of new norms of' international law, not by principles specific to thelaw of the sea or the seabed,

Those who support a universal duty to respect the restrictiorts on Irtiningset forth in Part XI must demonstrate that those restrictions are now part ofinternational law. For this purpose, it is essentially irrelevant whether theymaintain that there was no prior international law on the rnatter, or that theprior high seas right to mine was subject to the emergence of subsequerLtspecific regulation, or that the prior high seas right has now been conditionedby the emergence of specific regulation. But a great deal is lost by makingthe first argument and completely rejecting the applicability of high seas law.That argument is worse than unnecessary and descriptively inaccurate. fromthe perspective of those who reject the restraints of Part XI, it implies thatthe Lotus case gives them a completely free hand. That is no good for anyone

At the same time, those who maintain that the specific restrictions oaseabed mining set forth in Part XI apply only to the parties to the Conventiorsmust counter the contention that those restrictions are now part ofinternational law. For this purpose, it is essentially irrelevant whether theymaintain. that the Convention binds only its parties or maintain that some ofthe detailed restraints and institutional arrangements in Part Xl have not beenaccepted by states with significant interests in the matter. But a great deal islost by making the first argument and completely rejecting the gerteralacceptability of the Convention as a whole, or even Part Xl as a whole. Thatargument too is worse than unnecessary and descriptively inaccurate: from theperspective of those who reject the high seas argument, it implies that theprinciples of the Convention as a whole, including the unobjectionableprinciples embodied in Part Xl, are not relevant to relations with non-parties.That too is no good for anyone.

From the perspective of a seabed miner, it is perhaps a bit disirtgenovsto say that the legal principles applicable to the seabed beyond coastal statejurisdiction are now generally agreed, except for the problem of regvtationof exploitation of mineral resources. But from the perspective of all theinterests of all the states in the world, that is no mean achievennent. Minirtgis not yet imminent. The rhetoric used in the debate regarding the mattersthat remain to be agreed should not cloud or, worse still, prejudice theprinciples that are agreed.

Pas rop de ze e!

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