The control of the vote on these issues in an international conference rests with the developing countries, and at this stage of history they are ill prepared to use that vote in the long-term interest of the world as a whole or themselves as a group. They are anti-establishment at this stage of history and simply wish to break down the establishment, in the belief that any system, including chaos, is better than any system that exists.

Mr. John G. Lavlin, as Chairman of the Committee on Oceanography of the Section of International and Comparative Law of the American Bar Association, disagreed with some of the views held by Mr. Ely and the American Bar Association. Although he was opposed to a conference to open up the questions resolved in the 1958 Convention, his grounds were that the proper limits of the legal Continental Shelf can be established "only after we know what sort of a regime is to prevail beyond the Continental Shelf." He went on to state that "if there is to be a satisfactory regime, there are strong considerations in favor of keeping the Shelf relatively narrow." Because, at the present time, there is not much possibility of reaching multilateral agreement on a satisfactory regime, he concluded:

We should stand on the right we now have to hold out for an outer boundary that moves with each new demonstration of exploitability-deeper and deeper, until the exploitable limit and the adjacency limit coincide. The understanding that we will hold out for this could encourage other nations to agree upon a satisfactory deep sea regime ***

In contrast, Mr. Ely stated:

The decision to stand unequivocally on our present rights under the Convention on the Outer Continental Shelf, and to assert those rights as including the whole submerged continental landmass, irrespective of depth or distance, should not be influenced at all by decision of the separate question as to what kind of international regime should be created to function seaward of this area of exclusive national jurisdiction.

William T. Burke, Professor of Law at the University of Washington, Seattle, was of the same opinion as Mr. Laylin. He said:

*if an international conference is convened, my preference is that the United States seek to gain acceptance of as narrow a shelf as possible *** If somehow a relatively wide shelf could be established by interpretation of the convention, this might slow or even halt the movement toward revision of the convention at a new law of the sea conference.

He did not believe that the United States should take the initiative to open negotiations, because "it is unlikely that we can control what issues will be negotiated and *** it seems probable that we cannot achieve acceptable results in these negotiations."

Mr. C. H. Burgess testified on behalf of the American Mining Congress, whose recommendations agreed with those of the American Bar Association that desired clarification should be accomplished by uniform parallel declarations. However, he also stated that the choice between a wide and narrow Shelf would be dependent on the type of regime established beyond the limit of exclusive national jurisdiction. Under the wide-shelf interpretation, the adjacency criterion includes the entire submerged continental land mass, including the Shelf, slope, and portions of the continental rise. In the testimony of Mr. Ely, this interpretation was cited in official publications of the American Bar Association (app. A and B), the American Branch of the International Law Association (app. E), and the National Petroleum Council (app. C).

Both Mr. Ely and Mr. Olmstead supported this view, with references to the language of the convention, the drafting and legislative history of the Convention (app. C) the practice of States (app. D), and the 1969 International Court of Justice ruling in the North Sea Continental Shelf case. The doctrine of the I.C.J. case, as interpreted notably by Prof. R. J. Jennings of Cambridge University, supports a wide-shelf interpretation, on the grounds that the identical geological rock structure of the continental slope and subsoil make it a "natural prolongation" of the continent and therefore under the exclusive jurisdiction of the coastal nation.

Similarly, Senator Marlow W. Cook, member of the Subcommittee on Oceanography of the Senate Commerce Committee, stated that the United States enjoys exclusive rights to explore and exploit the resources of the "submerged natural prolongation of the continental land territory, which encompasses the continental margin which consists of the Shelf, slope, and rise."

Senator Ted Stevens, a member of the Subcommittee also recommended acceptance of a geological wide-shelf interpretation of the legal Continental Shelf. He submitted for the record a statement he delivered to the American Bar Association entitled "A U.S. Policy for the Wet Frontier," in which he voiced the position of the current administration in his home State of Alaska. He urged that the Geneva Convention definition be modified to embrace the entire geological continental terrace.

With regard to the exploitability criterion under the wide-shelf interpretation, Mr. Ely contended that the adjacent area is under national jurisdiction, whether presently exploited or capable of being developed or not, and that the United States has "the inherent right to exclude all other nations from the exploration or exploitation of the U.S. continental margin." There is "rolling jurisdiction" only in the sense that the "Outer Continental Shelf Lands Act as domestic legislation becomes operative to each lease in progressively deeper water."

Mr. Laylin, on the other hand, stated that the United States has no right to control exploration by foreign nationals off the coast of the United States in areas beyond a depth of 200 meters, beyond an area of demonstrated exploitability or beyond the 3-mile territorial sea, whichever is the more distant from the coast. He subscribed to the doctrine of rolling jurisdiction in that any part of the submerged land mass comes within national jurisdiction only as soon as exploitation of the area is proven. He stated that the issuance of a lease by the U.S. Government does not, in itself, establish or extend the claims of the United States.

Furthermore, according to Mr. Laylin, as the United States develops a technology of exploitation and extends the limits of its Continental Shelf, the Continental Shelves of all other coastal nations are simultaneously extended.

Mr. Burke agreed that the issuance of a lease has no necessary effect on the boundary of the U.S. Shelf, and that the U.S. Shelf extends as far as the furthest Shelf claim made by any nation, within the limit of adjacency.

These appendixes appear in Part 1 of the "Outer Continental Shelf" hearings before the Special Subcommittee on Outer Continental Shelf, Senate Committee on Interior and Insular Affairs, 91st Congress, 1st and 2d Sessions.

The narrow-shelf interpretation

A second interpretation of the seaward limits of exclusive national jurisdiction according to the 1958 Geneva Convention is referred to as the narrow-shelf interpretation.

The adherents of this position favor a narrow shelf and hold that the adjacency and exploitability criteria are so vague as to create uncertainties as to the limits of the juridical shelf.

This minority view was presented to the subcommittee by Louis Henkin, Hamilton Fish Professor of International Law, Columbia University. He recommended that the United States seek international agreement redefining the shelf precisely and narrowly. According to his testimony, there is no basis in the legislative history of the convention for the assertion that "future exploitability gives the coastal state the right now to claim an area as Continental Shelf." He does not believe that the limits of the shelf are extended by the issuance of leases in further offshore areas. He asserted that, although the criterion of adjacency is extremely vague and indefinite, the International Court of Justice has said that "not by any stretch of the imagination can a point of the Continental Shelf situated say a hundred miles, or even much less, from a given coast be regarded as 'adjacent' to it."10

In contradiction to Mr. Ely's testimony, Professor Henkin stated. that the "opinion of the International Court of Justice in the North Sea cases contradicts the notion that 'adjacency' gives the coastal state exclusive mineral rights to the entire 'natural prolongation' of its continent." He finds no determinative relationship between the adjacency criterion contained in the Convention definition and the geological submerged land mass. He does not interpret "adjacency" as contiguity, but as proximity or nearness to the coast.

After reviewing his theory of historical tendencies, Professor Henkin argued against the notion of national jurisdiction over areas for limited purposes only. He ventured to predict that "wherever the coastal state has rights for purposes of exploiting natural resources it acquires in the long run exclusive rights for other and probably all purposes." In view of maintaining freedom of the seas, a narrow Shelf would be in the interest of the United States; a wide Shelf would lead to "wide areas under the increasing control of other coastal states from which various uses by the United States could be effectively barred."

With regard to the regime beyond the limits of the Shelf, he stated that "while the width of the shelf is linked to other issues, including the regime for the seabed beyond, a narrow Shelf is in our interest regardless of how other issues are decided," and that, pending the resolution of these issues, the "United States should seek agreement to freeze the extent of the Continental Shelf."

Professor Henkin stated that the optimum arrangement would be a narrow Shelf with a modest international regime beyond. Such a regime would be "an impartial, multinational or international, func

10 On this point see p. 277 of our hearings of Dec. 17, 1969, Jan. 22 and Mar. 4, 1970, in which Professor Jennings answers this contention by stating that: "*** The Court is *** referring to what it calls adjacency in its 'normal sense.' and it is clearly adjacency in the sense of nearness that the Court has particularly in mind in this passage; moreover, the Court is not talking about the Continental Shelf as a physical entity but is talking about a 'point' on the Continental Shelf. Nor was this a mere intellectual exercise. The Continental Shelf is indeed an entity-Article 1 of the Convention speaks of 'Submarine areas adjacent,' etc.-but the delimitation of boundaries between neighboring States may require consideration of points in that area. But a point that is a hundred miles ‘or even much less' from a coast and therefore not 'adjacent' to it in the 'normal sense' of the word 'adjacency,' may nevertheless be part of a continental shelf which as a whole is adjacent to a State in the sense of being a prolongation of the land and therefore appurtenant to it."

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tional (not political) authority." It would administer ground rules over exploration and exploitation of the seabed resources, and collect a "reasonable tithe from the profits" to be used for "international purposes, say for the development of poorer countries." In his concluding remarks, he stated that he was "largely in agreement with the views and proposals of the Commission on Marine Science, Engineering and Resources," and, in particular, with the "possibilities for compromise and accommodation in the Commission's proposal for an intermediate zone."

In contrast to Professor Henkin's testimony, Senator Cook, a wide-shelf advocate, stated:

The freedom of the seas doctrine is separate and distinct from the doctrine of the Continental Shelf. As the Geneva High Seas Convention recognizes, the freedom of the seas doctrine applies to the rights of all nations to navigate and fish on the high seas, lay submarine cables and pipelines under the high seas, and fly over the high seas.

Senator Claiborne Pell, who has long maintained an interest in ocean matters, also testified in favor of a relatively narrow shelf. He drafted a model treaty embodying the principles of United Nations-managed licensing of mineral rights on the deep seabed, which was presented in Senate Resolutions 172 and 186 (90th Cong. 1st Sess.), refined in congressional hearings before the Senate Foreign Relations Committee, and presented again in a new resolution (S. Res. 33). He stated in his testimony before the Subcommittee that these resolutions:

*** seek to guarantee that ocean space will be explored and exploited in the interests of all mankind, that it will be free from national appropriation, that it will be open to scientific investigation, that it will be exempt from atomic wastes and other pollutants, and that it will be developed in accordance with and respect for existing international law and the Charter of the United Nations.

Senator Pell's resolutions establish the Outer Continental Shelf boundary at a depth of 550 meters or a distance of 50 nautical miles (from the baselines used to measure the breadth of the territorial sea), whichever gives the coastal state a greater area. Because the 550meter figure is the greatest depth of any part of the world's geographical continental shelves, his proposal simply substitutes the maximum depth of the geographical shelf for its average depth, that is, 200 meters, and thereby ignores the exploitability clause. In addition, he proposes a solution to the so-called island problem, which arises when a distance criteria is used to define the Continental Shelf. So that no small midocean island (defined by the Geneva Convention on the Territorial Sea as "a naturally-formed area of land, surrounded by water, which is above water at high tide") would have a disproportionately large area of Continental Shelf, Senator Pell's resolution stipulates that no Continental Shelf zone shall encompass an area greater than that of the state or island to which it is adjacent.

He strongly opposed a wide shelf interpretation on the additional ground that the larger the offshore zone under exclusive national jurisdiction the larger the seabed area on a worldwide basis from which U.S. nationals would be excluded. This conclusion was apparently based on the presumption that other countries, contrary to their present policies, would deny foreign access to their continental margins. Such a policy would not be consistent with the desire of such countries in developing greater exports. Accordingly, we find it difficult to understand the logic of this argument.

Beyond the area of national jurisdiction, his measures provide for the establishment of a special agency under the United Nations. umbrella to administer allocation of the deep seabed resources. This agency would operate as a trustee for the internationally-owned seabed, and would have authority to issue licenses for exploration and exploitation and to charge rents or royalties, restricted to 10 or 15 percent of the profits. His measures also provide for an international Sea Guard, which would consist of men and ships donated by the nations of the world, to enforce the laws of the regime. A panel of justices would have jurisdiction over disputes arising under the laws of the regime, with appellate authority resting in the International Court of Justice, under Senator Pell's proposal.

To recapitulate: The two major arguments concerning the seaward limits of the legal Continental Shelf are for a wide Shelf, and for a narrow Shelf. To the extent that the narrow Shelf position is a legal argument, as opposed to a policy preference, its foundation rests on the contention that the 1958 Geneva Convention on the Continental Shelf is so vague as to prohibit any useful attempt to interpret a seaward limit of the legal Continental Shelf.

We will return to consider the relative merits of these two interpretations of the seaward limits of the legal Continental Shelf. But first we pause briefly to mention a policy preference for handling the shelf limits question. It is not to be considered a legal interpretation of the Continental Shelf doctrine, but rather an apparent attempt to reach a policy compromise between the opposing wide and narrow Shelf views.

The intermediate zone proposal

This third_approach, notably articulated in the Marine Science Commission Report, is an attempt to compromise with the wide-shelf and narrow-shelf approaches.

This minority approach calls for the creation of the "intermediate zone" beyond narrowly-defined limits of exclusive national jurisdiction. Carl A. Auerbach, Professor of Law, University of Minnesota, and member of the Commission on Marine Science, Engineering, and Resources, summarized the Commission's recommendations in his testimony before the Subcommittee. He argued the following: Because the alleged uncertainties in the 1958 Geneva Convention definition tend to discourage the development of subsea mineral resources, the Commission recommended that the United States lead an effort to reach international agreement upon a precisely redefined shelf. Mr. Auerbach stated:

In the Commission's view, the interests of the United States and the international community are best served by the narrowest possible definition of the Continental Shelf for purposes of mineral resource development.

Specifically, the Commission advocated a 200-meter/50-mile limit, which represents the approximate average of the depths and widths of the world's geographical continental shelves.

Resource development on the United States Continental Shelf would be governed by the Outer Continental Shelf Lands Act, and the Commission recommended that the Act be amended to authorize the Secretary of the Interior to waive competitive bidding when necessary to encourage mining activity.