Hearings, Reports and Prints of the Senate Committee on Interior and Insular Affairs

The problem of defining the extent of exclusive national jurisdiction in offshore areas, and, more specifically, of determining the status of the suboceanic lands and their resources beyond the limits of national jurisdiction has been receiving considerable attention both within this country and internationally.

The exploitation of ocean resources to meet the demands of the world's population for such commodities as protein, fuels, and other strategic minerals, is becoming increasingly significant. The need to discover new offshore sources of petroleum and natural gas is becoming even more critical, in light of the declining ratio of reserve supply to production and the rate of new discoveries of land resources. As yet, however, the immense wealth of the ocean bed remains not only largely untapped, but also largely unexplored.

We know more about the moon than we do about the land beneath the oceans, which cover 72 percent of the surface of the earth.

Physically, the submerged lands can be divided into two categories: the deep ocean basins and the continental land masses. The continental margin, or the submerged area of the continental land mass, includes the shelf, the slope (together composing the continental terrace), and the continental rise. Beyond the rise lie the deep ocean. basins, which contrast sharply to the continental margin, both in their geological structure and in their mineral deposits.

The principal deposits of present commercial interest found on the deep ocean floor are manganese nodules which contain substantial quantities of copper, nickel, and cobalt. The minerals related to the continental margin are more varied, and include petroleum and natural gas, sulfur, sand, gravel, seashells and conglomerate materials, and certain heavy minerals in placer deposits.

As the world's leader in both the development of ocean technology and the extraction and use of such seabed resources as petroleum and natural gas, the United States should have an acute interest in assuring that the determination of the limits of exclusive national rights to explore and exploit the seabed which will be most favorable to the national interest.

Oil and gas supply approximately three-fourths of this Nation's total energy. With only 6 percent of the world's population, the United States consumes 32 percent of the world's petroleum and 50 percent of its natural gas. Last year, offshore production from State and Federal lands accounted for almost 16 percent of the natural gas production of the United States. In fiscal year 1969, more than 290 million barrels of petroleum, one-sixth trillion cubic feet of natural

gas, one-half million tons of salt, and nearly 12 million tons of sulfur were produced, having a total value of $1.3 billion. In addition, some $50 million worth of construction materials, such as sand, gravel and shells, is being dredged from nearshore areas each year. Minerals including gold, silver, platinum, iron, titanium, chromium, and tin may become exploitable within the next 10 to 20 years, if they are found in sizable concentration near market outlets. The potential for mining the manganese nodules on the deep ocean floor is not clear at the present time, but may begin to become significant in the near future.

Any estimates of the potential value of the resources of offshore areas are based on inadequate scientific knowledge.

However, in the area of the U.S. continental margin between 200 meters and the seaward edge of the continental rise alone, there is contained an estimated 867 billion barrels of oil; 68 billion barrels of natural gas liquids; 2,045 trillion cubic feet of natural gas.

The increasing awareness by nation states of the vast economic wealth of the continental margins and the deep seabed beyond has created a rather controversial situation. In particular, the developing countries without continental shelves fear that the developed countries, with their more advanced technology, will expand their claims of exclusive rights to ever larger areas of the seabed adjacent to their coasts in order rapidly to extract the mineral wealth therefrom.

The underdeveloped countries also fear that the developed countries will monopolize the resources of the deep ocean floor through superior access to its raw materials, by virtue of a superior seabed technology.

Some developing states whose economy is based largely on exports fear that an accelerated development of the continental margin and deep seabed will result in the lessening of the present dependency of developed states on the exports of such less developed states. Further, as a result, these developing "exporter" states fear loss of their primary source of foreign currency income. Such fears, we feel, are groundless, as it will be a number of years before deep sea technology develops to the point of attaining recovery of seabed mineral resources in economically feasible quantities. Even when such an event occurs, there is little reason presently to believe that it will cause a collapse of the worldwide export markets for similar minerals now being mined on dry land in light of the projected vastly increased requirements.

In historical terms, the first assertion by the U.S. Government of jurisdiction over the resources of the continental margin was the proclamation on the Continental Shelf issued by President Truman in 1945.1

Twenty-four years later the International Court of Justice tacitly recognized the essence of the Truman proclamation to be declaratory of existing international law. The Court declared in paragraph 19 of its opinion that ". what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in article 2 of the 1958 Geneva Convention, though quite independent of it-namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purposes of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is 'exclusive' in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent."

The Court related this doctrine to the Truman proclamation of 1945. It said (paragraph 47): "Although this instrument was not the first or only one to have appeared, it has in the opinion of the Court a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman proclamation, however, soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely, that of the coastal State as having an original, natural, and exclusive (in short, a vested) right to the Continental Shelf off its shores, came to prevail over all others. being now reflected in article 2 of the 1958 Geneva Convention on the Continental Shelf"

It declared the natural resources of the "subsoil and seabed of the Continental Shelf beneath the high seas but contiguous to the coasts of the United States" to be subject to the control and jurisdiction of the United States. Although it did not delineate the boundaries of this jurisdiction by defining the seaward limits of the Continental Shelf, the September 28, 1945, press release from the White House indicated that "*** the submerged land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water is considered as the Continental Shelf." It should be noted, however, that subsequently the U.S. Government has issued leases in areas where the water depth is substantially greater than 100 fathoms under ample legal authority as noted below.

Eight years later, Congress affirmed this assertion of jurisdiction by passing the Outer Continental Shelf Lands Act of 1953. The Senate Committee on Interior and Insular Affairs conducted 10 days of hearings and gave initial consideration to the bill which became the Outer Continental Shelf Lands Act, and accordingly has the responsibility for legislative oversight of operations under that law and any subsequent legislation amending that Act. The Act set forth no definitive boundaries for the seaward limits of the shelf, but did explicitly preserve the character of the waters above as "high seas." This Act and the Submerged Lands Act of 1953 are the first and only U.S. legislative declarations to date regarding national jurisdiction over the mineral resources of the suboceanic lands adjacent to the coast of the United States. As we interpret the Constitution, any modification of the property rights of the United States created by or reaffirmed in these Acts would require an Act of Congress.2

The Convention on the Continental Shelf, one of four conventions negotiated at the 1958 Geneva Conference on the Law of the Sea, defines the seaward limits of the Continental Shelf:

*** as referring *** to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas ***.

The 1958 Geneva Convention on the Continental Shelf recognizes exclusive sovereign rights on the part of coastal nations for the purpose of exploring and exploiting shelf resources. These rights are limited so that the traditional legal status of the superjacent waters as high seas and the airspace above the waters is not affected.

However, there has been considerable disagreement as to the precise meaning of the definition and seaward limits of the Shelf. Beyond the 200-meter isobath, the coastal state has rights in areas adjacent to the coast where the depth of waters admits of exploitation.

It is with regard to the adjacency and exploitability criteria that differing interpretations of the Convention have evolved. We adopt the interpretation agreed upon by the American Branch of the International Law Association, reprinted in its entirety later in this document. It holds that "rights under the 1958 Geneva Convention on the Continental Shelf extend to the limit of exploitability existing at any given time within an ultimate limit of adjacency which would encompass the entire continental margin." 3

See the U.S. Constitution, art. IV, sec. 3, cl. 2.

See further discussion of this position in Section III. Subcommittee conclusions regarding Shelf limits.

« Prejšnja Naprej »

Knjige

Hearings, Reports and Prints of the Senate Committee on Interior and Insular ...