The seabed question was first publicly brought to the attention of the General Assembly of the United Nations by Ambassador Arvid Pardo of Malta in 1967, when he proposed that a new treaty be drafted to prevent national appropriation of the seabed, to define precisely the limits of the Continental Shelf, and to reserve the seabed assets primarily for the benefit of the developing countries.

The Ad Hoc Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction (the Seabed Committee), of which the United States has been an active member, was created in 1969. That Committee, which in the 23d General Assembly was elevated to permanent status, has produced a series of comprehensive reports dealing with the legal questions, the advancing state of technology, and the possible development of international machinery regarding the exploration and exploitation of the seabed beyond the limits of exclusive national jurisdiction.

6

These reports provided the focus for debates in the First Committee of the General Assembly, which subsequently recommended four resolutions to the General Assembly. On December 15, 1969, the 24th General Assembly adopted each of these resolutions. The United States supported two of these, including the Belgian resolution, which referred the major seabed issues back to the Seabed Committee, and the international machinery resolution, which requested the Secretary General to prepare a further study on the question of an international seabed regime. The United States voted against the resolution, which requested the Secretary General to, inter alia, *** "ascertain the views of member states on the desirability of convening at an early date a conference on the Law of the Sea * **particularly in order to arrive at a clear, precise, and internationally accepted definition of the seabed *** beyond national jurisdiction, in light of the international regime to be established for that area."

The United States also opposed the Moratorium Resolution, which declared a moratorium on all exploitation of the seabed resources pending the establishment of an international deep sea regime.

In view of the recent activities in the United Nations and elsewhere, pressures are growing for the establishment of an international regime for exploration and exploitation of the mineral resources of the seabeds.

Proponents of a seabeds regime argue that a new system of law is needed to avoid future conflicts over the uses of the seabed and to resolve peacefully any conflicts which might arise from such use. Furthermore, some proponents of a seabed regime hope that international cooperation in the use of the ocean fostered by a new regime would have a "spillover" effect-that of ultimately promoting world peace through greater world government. Others, who favor the creation of a seabed regime feel that the most important objective is to construct a stable and well-defined system of law which would encourage exploration and exploitation of seabed minerals and help to assure the mineral supply needed to meet future needs. Oceanographers, of course, feel that a future regime should insure freedom for

422 GAOR. Doc. A/6695; 22 GAOR. prov. Docs. A/C. 1 PV. 1515, 1516.

$ (2574B XXIV).

6(2574C XXIV).

7 The report prepared in response to that resolution was released on May 26, 1970, as A/AC. 138/23. 8 (2574A XXIV); Some of the responses to the Secretary General's poll are reprinted in A67925, released July 17, 1970.

scientific research. We support these latter two objectives calling for a stable system of law applying to the deep seabed and assurance of the continued freedom for scientific research.

The creation of any international seabed regime, however, will necessarily require a delineation of the area to which it would apply. Some feel that such a delineation will simultaneously define the limits of national jurisdiction over submarine areas constituting the legal Continental Shelf. A new international agreement which purported to restrict claims of national jurisdiction, to which the United States is entitled under the Continental Shelf doctrine, would certainly be of farreaching domestic importance and therefore of serious concern to this Committee.

Some have argued that the United States should limit its claims to the Continental Shelf. We believe this argument to be based on misconceptions of fact and law. We feel that undisputed access to the vast energy resources (oil, in particular) located on the U.S. continental margin is of paramount importance. Oil is a strategic material which is absolutely essential to fuel our industrial machine and thereby sustain a sound

economy.

II. HISTORY OF THE SUBCOMMITTEE

In a letter dated July 23, 1969, and addressed to Senator Lee Metcalf, Senator Henry M. Jackson, chairman of the Committee on Interior and Insular Affairs, set forth the background and legislative history of the Interior Committee's responsibilities affecting the development of the mineral resources of the submerged lands off the coasts of the United States and its offshore areas. He proposed the creation of a special subcommittee, to be chaired by Senator Metcalf. A committee print, entitled "Selected Materials on the Outer Continental Shelf," was prepared by the committee staff. It contains the basic legal documents and other factual materials pertinent to an understanding of the issues and was intended to "assist the Committee in the fulfillment of its responsibilities with respect to the best interests of the United States in the development of the mineral resources of the outer shelf."

The Subcommittee opened with a closed hearing on November 19, 1969, at which spokesmen from the Departments of State, Defense, Commerce, Interior, Transportation, and the scientific community were present. In the words of Chairman Metcalf, the hearing was designed to "clarify and make more visible the issues related to the proper resolution of the questions associated with the development of a sound Shelf and seabed resource policy."

The first open hearing was held on December 17, 1969, at which the major legal issues were presented. Testifying were Northcutt Ely, presently Vice Chairman of the Section of Natural Resources Law of the American Bar Association, Chairman of the Committee on Deep Sea Mineral Resources of the American Branch of the International Law Association and member the International Committee on Deep Sea Mining, ILA, and John Laylin, then Chairman of the Committee of Oceanography of the Section of International and Comparative Law of the American Bar Association.

At the second open hearing, held on January 22, 1970, four members of the academic community appeared before the subcommittee. The first witness was Prof. Carl A. Auerbach of the University of Minnesota School of Law, who was a member of the Stratton Commission on Marine Science, Engineering, and Resources, and was therefore able to outline the Commission's major recommendations for an "intermediate zone" to the subcommittee. The other witnesses were William T. Burke, Professor of Law, University of Washington, Seattle, Washington; Richard Young, a member of the New York Bar, Vice Chairman of the Committee on Oceanography of the Section of International and Comparative Law of the American Bar Association, and a member of the International Committee on Deep Sea Mining of the International Law Association; and Louis Henkin, Hamilton Fish Professor of International Law and Diplomacy, Columbia University. The third hearing was held on March 4, 1970, at which representatatives of industry presented testimony. Witnesses included the late Wilbert M. Chapman, then Director, Marine Resources, Ralston Purina Co., representing the interests of the fisheries; C. H. Burgess, Vice President of Kennecott Copper on behalf of the American Mining Congress; James A. Crutchfield of the University of Washington in Seattle and a member of the Stratton Commission for Marine Science, Engineering, and Resources; and Cecil J. Olmstead, Vice President of Texaco, who represented the National Petroleum Council.

The fourth hearing, on April 1, 1970, was devoted to the economic considerations having a bearing on the issues before the subcommittee. The economists present included Miller B. Spangler, of the National Planning Association, Washington, D.C.; Leonard L. Fischman, consulting economist, also of Washington, D.C.; and Walter Mead of the Department of Economics, University of California at Santa Barbara.

Invitations were extended to several Members of the Senate and the House of Representatives to appear before the Subcommittee on May 20, 1970, to present their views regarding the Continental Shelf boundary issues. Claiborne Pell, U.S. Senator from the State of Rhode Island, who had been present at previous hearings, appeared to testify. Also included in the hearing record was the testimony of Marlow W. Cook, U.S. Senator from the State of Kentucky and member of the Subcommittee on Oceanography of the Senate Commerce Committee.

A hearing was scheduled for May 13, 1970, to hear the views of the witnesses having an interest in the exploitation of the seabed resources. Although no witnesses testified in person, several written replies were received and incorporated in the record of the hearings. Those replying were: Lewis M. Alexander, Professor of Geography, University of Rhode Island; Charles H. Callison, Executive Vice President, National Audubon Society; Thomas A. Fulham of the Boston Fish Market Corporation; Thomas L. Kimball, Executive Director, National Wildlife Federation; and Richard H. Stroud, Executive Vice President, Sport Fishing Institute.

At the hearing on May 27, 1970, following two delays requested by the White House, the subcommittee received a policy proposal from the administration. Present to testify were Elliot Richardson, Acting Secretary of State, and John Stevenson, Legal Adviser, also of the Department of State. Following their testimony, a list of further

questions was sent to the Secretary regarding the Administration's policy proposal. These questions and replies received from the State Department were included in the full record of the hearings.

The most recent hearing pertaining to the establishment of a seaward boundary of the legal Continental Shelf and related issues was held on September 22 and 23, 1970. At that hearing witnesses commented on the President's proposal concerning the seabed and discussed the draft working paper of August 3 which outlined a plan for the regulation of seabed resource development. The witnesses were Mr. Northcutt Ely, on behalf of the American Bar Association; Mr. John G. Laylin, on behalf of the Committee on Oceanography of the Section of International and Comparative Law of the American Bar Association; Mr. T. S. Ary, Vice President, Union Carbide Exploration Corporation, on behalf of the American Mining Congress; and Mr. Luke W. Finlay, on behalf of the American Petroleum Institute. This report, including the conclusions it contains, is based on the record of all of these aforementioned hearings.

III. THE LEGAL AND POLITICAL ASPECTS OF THE OUTER CONTINENTAL SHELF BOUNDARY CONTROVERSY

Under U.S. law, which includes treaties to which the United States is a party, as well as Federal statutes, the only precise definition of the seaward limits of national jurisdiction over the Outer Continental Shelf is found in the 1958 Geneva Convention on the Continental Shelf, signed by the United States in 1958 and ratified in 1960. The definition has two basic elements-adjacency and exploitability:

E.g. "*** the term 'continental shelf' is used 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 ***." [Emphasis ours.]

"The adequacy of the 1958 Geneva Convention to protect and enhance, consistent with the national interest, maximum access by the United States to the natural resources of its Continental Shelf" was set forth as a major area of study for the subcommittee.

From discussions centered around the adjacency and exploitability aspects of the definition, essentially two different interpretations have evolved. These interpretations are commonly referred to as the wideshelf interpretation, which we adopt, and the narrow-shelf interpretation.

The wide-shelf interpretation

One interpretation, referred to as the wide-shelf interpretation, is strongly supported by the American Bar Association, the National Petroleum Council, the American Branch of the International Law Association, and generally by industry. The wide-shelf view holds that, for the most part, the definition of the seaward limits of the Continental Shelf contained in the 1958 Geneva Convention is sufficiently precise and requires no amendment. Furthermore, proponents of this interpretation are opposed to a reopening of the Geneva Convention, on the grounds that such a move would most probably work to the disadvantage of the United States. As explained by Northcutt Ely, speaking on behalf of the American Bar Association:

All we know for sure is that a new law of the sea conference will be dominated by nations that have no interest in this subject except to take away from the coastal nations as much of the minerals of the continental margin as they can get.

In his testimony, Mr. Ely also referred to the American Bar Association's Joint Report of Sections of Natural Resources Law, International and Comparative Law, and the Standing Committee on Peace Through the United Nations, which states:

Such a conference might fail to reach agreement, for political reasons unconnected with the legal merits of the various proposals which would come before it. A result of this kind could well convert present uncertainties into complete chaos. Alternatively, an agreement carried by a majority of small States might embody principles unacceptable to the United States, yet which would be difficult to disregard if formally adopted by such a conference. In either event, no real legal gain would result and quite possibly a retrogression would occur which could undo even some of the progress made in 1958.

The same report, instead, proposes that any uncertainties could be clarified by the issuance of:

*** unilateral but concerted declarations by like-minded maritime States announcing their intent to observe a particular limit as to the boundary of their shelves under the 1958 Convention and to decline recognition of any claim by other States to a greater limit.

Cecil J. Olmstead, representing the position of the National Petroleum Council, concurred with the American Bar Association's position as presented by Mr. Ely. He reported that the National Petroleum Council in its report to the Secretary of the Interior, Petroleum Resources Under the Ocean Floor, concluded that "under no circumstances" should the United States "be drawn into negotiations which would lead to a reopening of the 1958 Geneva Convention." Recent activities in the United Nations clearly indicate that "if the United States risks reopening even the Continental Shelf Convention it is highly unlikely that we could effectively guide the course of the negotiations and much less the results." However, the Council recognized that clarification is desirable to establish the extent of, and limitations on, claims and the coastal nations' jurisdiction over the mineral resources of the seabed and subsoil, and recommended "that the parties to the 1958 Convention, with such additional nations as may join them, promulgate uniform declarations stating the extent of their claims and the limits thereon under the Convention."

The late Dr. Wilbert M. Chapman, then Director, Marine Resources, Ralston Purina Co., also appeared before the Subcommittee and advocated the wide-shelf interpretation. In his opinion:

*** The United States should bend every effort internationally to retain that definition in international law and practice because there is no possibility at this stage of history to obtain a definition of the Continental Shelf more precise than that which will further U.S. economic interests in a consequential way or which will not do serious damage to national security.

He stated further that the existing state of international law regarding the exploration and exploitation of the deep seabed is adequate, that the flag-nation approach should prevail, and that any necessary accommodations between nations should be made through normal international diplomatic and legal procedures. With regard to the series of resolutions adopted recently by the United Nations, he concluded that: