(2) That within the area of exclusive sovereign rights adjacent to the United States, the interests of the United States in the natural resources of the submarine areas be protected to the full extent permitted by the 1958 Convention on the Continental Shelf. (3) That on the basis of the information now available, the most desirable long-range goal for a regime to govern exploration and development of the mineral resources of the seabed and ocean floor and subsoil beyond the limits of national jurisdiction is not the creation of a supersovereignty with power to grant or deny mineral concessions, but rather agreement upon norms of conduct designed to minimize conflicts between sovereigns which undertake such exploration and development. (4) That the resources of the bed and subsoil of the deep sea, beyond the limits of national jurisdiction, be the subject of study and consultation with a view to formulating rules and practices to be observed by common restraint or by other arrangements which will assure, inter alia, freedom of exploration by all nations on a nondiscriminatory basis, security of tenure to those engaged in producing the resources in compliance with such rules, encouragement to discover and develop these resources, and optimum use to the benefit of all peoples; and Authorizes representatives of the Sections of Natural. Resources Law and International and Comparative Law and the Standing Committee on Peace and Law Through United Nations to express the foregoing as the views of the American Bar Association to agencies of the Government of the United States and to the Congress of the United States. 54-162 O 71 - 5 APPENDIX C THE LEGISLATIVE HISTORY (OR "TRAVAUX PREPARATORIES") OF THE 1958 The background and history of the Convention comprises primarily these events: 1. On September 28, 1945, President Truman signed a proclamation' whose operative language read: the United States regards the natural resources of the subsoil and the sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States, as appertaining to the United States, subject to its jurisdiction and control." The reasons he gave were these: 66 "... the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilize or conserve these resources would be contingent upon cooperation and protection from the shore, since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying with the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for the utilization of these resources." President Truman's proclamation did not relate these reasons to any specified depth of water. At that time, except for wells drilled from piers off California. no offshore well. was in production in this country. The first one was brought in, in 50 feet of water, in Louisiana, in 1947. Some two score nations quickly followed suit with proclamations of offshore jurisdiction. 2. In 1951 the International Law Commission, which had been established by the Assembly of the United Nations to promote the development and codification of international law, submitted a report on the high seas after its third session. This 1951 report recommended that the coastal nations should have control and jurisdiction over the natural resources of a "continental shelf," defined as referring to ... the seabed and subsoil of the submarine areas contiguous to the coast, but outside the areas of territorial waters, where the depth of the superjacent waters admits of the exploitation of the natural resources of the seabed and subsoil." 993 3. The same Commission, in 1953, following its fifth session, produced another report. In this 1953 report the Commission reversed itself, and defined coastal jurisdiction solely in terms of water depth, using 200 metres as the outside limit, as follows: the seabed and subsoil of the submarine areas contiguous to the coast, but outside the area of the territorial sea, to a depth of two hundred metres." 994 The exploitability criterion was dropped. 4. This new limitation proved unacceptable to the Organization of American States. In March 1956, the 20 American nations convened at Ciudad Trujillo to consider the Commission's 1953 draft. These 20 nations were wholly dissatisfied with 1 The writer is indebted to Luke W. Finlay, Cecil J. Olmstead, and Oliver L. Stone foz access to their research materials in preparing this appendix on legislative history, and the following appendix on national practice. A more complete account appears in the Report of the National Petroleum Council's Committee on Petroleum Resources Under the Ocean Floor, March 1969. The Truman Proclamation of September 28, 1945, titled "Policy of the United States with respect to Natural Resources of the Subsoil and Seabed of the Continental Shelf," 10 Fed. Reg. 12303. International Law Commission (ILC) Yearbook (1951), Vol. II, p. 141. ILC Yearbook (1953), Vol. II, p. 212. The Commission's records make it clear that the motivation for this action was not the conclusion that the coastal nations had no rights beyond the 200 metre depth, but rather that there was no urgency for allowing exploitation beyond that depth, and that a 200 metre depth limit had a desirable element of certainty. the International Law Commission's about-face. They unanimous adopted a reso lution reciting that: "The seabed and subsoil of the continental shelf, continental and insular terrace, or other submarine areas, adjacent to the coastal state, outside the area of the territorial sea, and 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 sea-bed and subsoil, appertain exclusively to that state and are subject to its jurisdiction and control." (Emphasis added.) The conference's report, underlying that resolution, explained "continental terraces" as meaning this: "... "Continental terrace' is understood to be that part of the submerged land mass that forms the shelf and the slope." In turn, it defined the "slope" to mean this: "... Scientifically, the term 'continental slope,' or 'inclination,' refers to the slope from the edge of the shelf to the greatest depths." (Emphasis added.) The report made explicit just what the 20 American nations were objecting to in the International Law Commission's proposed restriction of their national jurisdiction to a water depth of 200 metres. It said: "I. The American states are especially interested in utilizing and conserving the existing natural resources on the American terrace (shelf and slope). "III. The utilization of the resources of the shelf cannot be technically limited, and for this reason the exploitation of the continental terrace should be included as a possibility in the declaration of rights of the American states." (Emphasis added.) The American representative concurred in this report and resolution, with the concurrence of the Department of State 5. In 1956 the International Law Commission convened its eighth session, a few weeks after the close of the Ciudad Trujillo conference. The American position won. The Commission added to its 1953 definition (200 metres) the language proposed by the American nations, which extended coastal jurisdiction "beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources" of said areas. The spokesman for the 20 American nations, having won his point, dropped his request for specific reference to the continental terrace. The official report of the session states it this way: "... He did not wish to press the part of his amendment introducing the concept of the continental terrace, since the adoption of the second point relating to the depth at which exploitation was practical would automatically bring that area within the general concept." Professors McDougal and Burke, in their definitive work, "The Public Order of the Oceans," report the 1956 debate in the International Law Commission in this fashion: "Some controversy attended the suggested elimination of the continental shelf term and the references to the 'continental and insular terrace,' but this became muted when it was realized that a criterion embracing both a 200-meter depth and the depth admitting exploitation would embrace such areas if they were in fact exploitable or came to be." (p. 683.) The International Law Commission's 1956 report accordingly recommended to the United Nations Assembly draft articles for a convention which would recognize coastal jurisdiction not only to 200 metres (about 100 fathoms), but, as proposed by the American nations, "beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas." The full text of the language recommended by the Commission to the General Assembly on this subject was contained in Article 67 of a proposed treaty dealing with other phases of the Law of the Sea as well as the continental shelf. It read: "For the purposes of these articles, 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 metres (approxi Resolution of Ciudad Trujillo, Inter-American Specialized Conference on Conservation of Natural Resources: The Continental Shelf and Marine Waters, Ciudad Trujillo: March 15-28, 1956. Committee I Report, Inter-American Specialized Conference, Conferences and Organizations Series No. 50, Pan American Union, at 34 (March 1956). 7 Whiteman's Digest of International Law (Department of State, 1965), Vol. 4, p. 837. SILC Yearbook (1956), Vol. I, p. 136. mately 100 fathoms), or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas." This final report of the Commission to the Assembly emphasized that this was in response to the Ciudad Trujillo declaration of the American states. The Commission said: "At its eighth session, the Commission reconsidered this provision [i.e., the 200 metre limit agreed on by the Commission in 1953]. It noted that the InterAmerican Specialized Conference on 'Conservation of Natural Resources: Continental Shelf and Oceanic Waters,' held at Ciudad Trujillo (Dominican Republic) in March 1956, had arrived at the conclusion that the right of the coastal State should be extended beyond the limit of 200 metres, 'to where the depth of the superjacent waters admits of the exploitation of the natural resources of the seabed and subsoil.' Certain members thought that the article adopted in 1953 [the 200 metre limit] should be modified. . While maintaining the limit of 200 metres in this article as the normal limit corresponding to present needs, they wished to recognize forthwith the right to exceed that limit if exploitation of the sea-bed or subsoil at a depth greater than 200 metres proved technically possible. . . . Other members contested the usefulness of the addition, which in their opinion unjustifiably and dangerously impaired the stability of the limit adopted. The majority of the Commission nevertheless decided in favor of the addition." 10 The Commission went on to say: "While adopting, to a certain extent. the geographical test of the 'continental shelf" as the basis of the juridicial definition of the term, the Commission therefore in no way holds that the existence of a continental shelf, in the geographical sense as generally understood, is essential for the exercise of the rights of the coastal State as defined in these articles . . . Again, exploitation of a submarine area at a depth exceeding 200 metres is not contrary to the present rules, merely because the area is not a continental shelf in the geological sense." " (Emphasis added.) ... 6. The United Nations Conference on the Law of the Sea convened in Geneva in February 1958 to consider the recommendations of the International Law Commission. Representatives of 82 nations attended. The conference separated out the Commission's articles into four conventions, one on the High Seas, another on the Territorial Sea and Contiguous Zone, another on the Living Resources of the Sea, and the Convention on the Continental Shelf. In support of the language recommended by the Commission, with respect to coastal nations' jurisdiction beyond the 200 metre isobath, a member of the American delegation told the Conference: "The definition of the rights of the coastal State to the continental shelf and continental slope adjacent to the mainland proposed by the International Law Commission would benefit individual States and the whole of mankind." " (Emphasis added.) The Conference approved the recommended language of Article 67 of the Commission draft, as Article 1 of the Convention on the Continental Shelf, after eliminating the parenthetical reference to 100 fathoms as equivalent to 200 metres, and adding language making the convention applicable to submarine areas adjacent to the coasts of islands. In one of the final acts of the Conference, in plenary session, a motion was made to cut coastal jurisdiction back to the 200 metre isobath, as recommended by the Commission in 1953. It was rejected by the Conference by a vote of 48 to 20, with two abstentions," Representatives of our Nation and 45 others then signed the Convention. 7. Article 11 of the Convention provided that it should come into force on the 30th day following deposit of the 22nd ratification or accession with the United Nations. This required until June 10, 1964.1⁄4 • ILC Yearbook (1956), Vol. II, p. 296. 10 ILC Yearbook (1956). Vol. II, pp. 296–97. " ILC Yearbook (1956), Vol. II. p. 297. 12 Official Records of the U.N. Conference on the Law of the Sea, Vol. VI: Fourth Committee. U.N. Doc. A/Conf. 13/42 (1958), p. 40. 18 Official Records of U.N. Conference on the Law of the Sea, Vol. II: Plenary Meetings, U.N. Doc. A/Conf. 13/38 (1958), p. 13. 14 See Proclamation of President Johnson so stating, May 25, 1964; T.I.A.S. 5578, p. 55. Article 13 provides that after expiration of five years from the date on which the convention enters into force, a request for revision may be made by any contracting party by notice in writing to the Secretary General of the United Nations. This date is thus June 10, 1969. The State Department submitted the Convention to the President on September 2, 1959. It told him that the Convention "combines both the depth and exploitability tests as did the International Law Commission's draft." 15 In submitting the Convention to the Senate in 1960 the Department was even more explicit. Its spokesman was Arthur H. Dean, who had been chairman of the United States delegation at the 1958 conference. He told the Senate Committee on Foreign Relations: "The clause which protects the right to utilize advances in technology at greater depths beneath the oceans was supported by the United States and was in keeping with the inter-American conclusions at Ciudad Trujillo in 1956. It was included in the I.L.C. 1956 draft.” 1o (Emphasis added.) The Senate accordingly gave its consent, and the President ratified the Convention March 24, 1961." CONCLUSION Article 2(1) of the Convention on the Continental Shelf states that the coastal State exercises over the "continental shelf" sovereign rights for the purpose of exploring it and exploiting its nature resources. Article 1 defined the term "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 metres or, beyond that limit, to where the depth of the superjacent waters admits of the expioitation of the natural resources of the said areas. .." (Emphasis added.) It is clear that the emphasized language (1) was added on the demand of the 20 American states; (2) was in response to their insistence that exclusive coastal jurisdiction should encompass the continental terrace, both shelf and slope, "to the greatest depths"; (3) was concurred in and advocated by the State Department in the 1956 Ciudad Trujillo conference of the American states, with the interpretation that this language accomplished that result; (4) was accepted by the International Law Commission in 1956 as recognizing exclusive jurisdiction in the coastal State in adjacent waters to whatever depth is exploitable; (5) was recommended by the State Department to the 1958 conference which produced the Convention on the Continental Shelf with the explanation that it encompassed both "shelf and slope"; and (6) was represented by the State Department to the President and Senate as being "in keeping with the inter-American conclusions at Ciudad Trujillo in 1956." Letter of Acting Secretary of State Dillon transmitting the Convention to President Eisenhower, September 2, 1959. 16 Hearings before the Senate Committee on Foreign Relations, "Conventions on the Law of the Sea," 86th Cong., 2d Sess., Jan. 20, 1960, pp. 108-09. 17 See T.I.A.S. 5578. |