which will be considered in greater detail in 

 Chapter 4 of the report. Furthermore, the free- 

 doms of the liigli seas must "be exercised by all 

 States witii reasonable regard to the interests of 

 other States in their exercise of the freedom of the 

 highseas."^' 



Freedom to explore and exploit the mineral 

 resources of the seabed and subsoil of the sub- 

 marine areas of the high seas is not expressly 

 included as a freedom of the liigh seas. The 

 Convention on the Continental Shelf gives the 

 coastal State "sovereign rights" to explore the 

 continental shelf, as defined therein, and to 

 exploit its natural resources. The proclamation in 

 the Convention on the High Seas that "no State 

 may validly purport to subject any part of [the 

 high seas] to its sovereignty" does not supersede 

 these rights of exclusive access. Only "general 

 principles of international law," however, govern 

 exploration and exploitation of the mineral re- 

 sources of the seabed and subsoil of the submarine 

 areas beyond the outer limits of the continental 

 shelf as defined by the Convention on the Conti- 

 nental Shelf. The International Panel agrees with 

 Professor Louis Henkin that these general prin- 

 ciples abound with uncertainty.^* 



E. Optional Protocol Concerning the Compulsory 

 Settlement of Disputes 



The Optional Protocol^ ^ authorizes any party 

 to it to bring to the International Court of Justice 

 any dispute, to which it is also a party, arising out 

 of the interpretation or application of any of the 

 provisions of the Conventions on the Law of the 

 Sea,"*" except a dispute subject to the arbitration 

 machinery created by the Convention on Fishing 

 and Conservation of the Living Resources of the 

 High Seas.'* ' Disputes covered by the Protocol are 

 declared to be within the Court's "compulsory 



Convention on the High Seas, Art. 2. 



^* Henkin, Law for the Sea's Mineral Resources, at 27 

 (A Report Prepared for the National Council on Marine 

 Resources and Engineering Development, December 

 1967, published as ISHA Monograph No. 1. by the 

 Institute for the Study of Science in Human Affairs of 

 Columbia University (1968)). 



^'optional Protocol of Signature Concerning the 

 Compulsory Settlement of Disputes, signed at Geneva, 

 April 29, 1958. 



^"id.. Art. I. 



'**/d., Alt. H. 



jurisdiction."''^ However, within a period of two 

 months after one party has notified the other that 

 a dispute exists, the parties may agree to resort to 

 an arbitral tribunal instead of the Court,'' ^ or to 

 adopt a conciliation procedure before resorting to 

 tlie Court."" If the concihation procedure fails to 

 resolve the dispute, either party may bring it 

 before the Court." ' 



The Optional Protocol is now in force but not 

 for the United States which has signed but not 

 ratified it."* 



III. SHOULD THE UNITED STATES SEEK TO 

 CREATE A NEW FRAMEWORK? 



A. Uncertainties of the Status Quo 



To determine whether the United States should 

 seek to change the existing framework, an assess- 

 ment must be made of the effect of the uncertain- 

 ties of the existing international legal-political 

 framework upon exploration and exploitation of 

 the mineral resources underlying the high seas, and 

 upon other domestic and foreign policy objectives 

 of the United States. The principal uncertainty 

 derives from the language of the Convention on 

 the Continental Shelf defining the continental 

 shelf to extend "to the seabed and the subsoil of 

 the submarine areas adjacent to the coast ... to 

 where the depth of the superjacent waters admits 

 of the exploitation of the natural resources of the 

 said areas; . . ." 



1. The Exploitability Criterion 



a. Articles 2 (2) and (3) of the Convention 

 make it clear that the coastal State may exclude 

 any other State, or its nationals, from exploiting 

 or exploring any of the natural resources of the 

 seabed or subsoil of the submarine areas adjacent 

 to the coast to a depth of 200 meters, even if 

 neither the coastal State, nor any of its nationals, 

 is exploiting the particular natural resource and 



'*^/^,ArtI. 



"^/d.. Art in. 



""/d.. Art. IV. 



^'Ibid. 



Treaties and Other International Agreements 

 Containing Provisions on Commercial Fisheries, Marine 

 Resources, Sport Fisheries, and Wildlife to Which the 

 United States is Party, Senate Commerce Committee 

 Print, 89th Cong., 1st Sess. 387 (1965). 



VIII-15 



