not so dependent on any particular coastal State. Furthermore, the Truman Proclamation laid the 

 juridical basis for a new activity and divested no one of rights long enjoyed; but States have fished over 

 the continental shelves of other States for centuries. 



The Truman Proclamation was also justified on two geological grounds— the continental shelf may be 

 regarded as an extension of the landmass of the coastal State and the mineral resources of the 

 continental shelf frequently form a seaward extension of a pool or deposit lying within the territory of 

 the coastal State. There is no similar connection with the coastal State's territory in the case of the living 

 resources of the waters superjacent to the continental shelf nor do we need to give the coastal State 

 exclusive access to these resources in order to avoid possible conflicting claims to the same asset. 



Finally, the Truman Proclamation was justified on grounds of "self-protection" which compelled the 

 coastal State to keep close watch over activities off its shores which are of the nature necessary for the 

 utilization of mineral resources. However, fishing activities over the continental shelf do not pose similar 

 security problems. They do not require the permanent installations which are needed for mineral 

 resources exploitation; they take place only for limited periods of time and can be closely watched by 

 the coastal State. ^ 



For similar reasons, we do not think that the considerations which led the panel to recommend that 

 only licensees of the coastal State shall have claims on their behalf for mineral resource exploration and 

 exploitation in the intermediate zone registered with the International Registry Authority apply to 

 fisheries in the superjacent waters. 



(2) To give the coastal States permanent exclusive access to the living resources over the continental 

 shelves, as well as to the natural resources on and under the continental shelves, runs the risk of 

 encouraging them to take the additional step of declaring their "sovereignty" over these areas, i.e., their 

 right to exclude any use of the continental shelf, its subsoil, the superjacent waters, the surface waters, 

 and the air above, without their permission. Such a development would seriously damage the historic 

 interest of the United States in the freedom of the seas for purposes other than exploitation of marine 

 resources— especially navigation, military uses and scientific research. 



(3) This alternative would not assure the most productive use of the living resources in the greatly 

 expanded exclusive fisheries zones. The coastal States may not have the competence or the financial 

 abiUty fuUy to exploit these resources. Their failure to do so would result in irretrievable losses of 

 needed output. 



In reply to this objection, Professor Dodyk has suggested that this alternative might be accompanied 

 by recognition of a right of "innocent fishing" by foreign fishermen, i.e., the right of foreign fishermen 

 to continue to exploit a fish stock which is unused or underutilized by the nationals of the coastal State, 

 provided it does not interfere with fishing by coastal fishermen for other species because of either gear 

 conflict or the upsetting of the ecological balance.^ Dodyk also suggests that the coastal State might be 

 permitted to impose taxes or fees on the foreign fishermen so long as they are not prohibitory or 

 discriminatory, i.e., not out of line with taxes imposed on similar domestic fishing enterprises or on 

 other industries.'* On the other hand, he also recognizes that any tax will increase the cost of production 

 and the price of fish and thereby discourage the production of oceanic living resources at the lowest 

 possible cost.^ 



2 



The Panel recognizes that the arguments which justify giving the coastal State permanent, exclusive access to the 

 mineral resources of the continental shelf do not apply to the sedentary living resources of the continental shelf. The 

 panel regards the provisions of the Convention on the Continental Shelf with respect to sedentary living resources as 

 anomalous and without justification. However, the issue seems to be closed. See generally, McDougal and Burke, The 

 Public Order of the Oceans 642-63 (1962); Hearings Before Senate Foreign Relations Committee on Conventions on 

 the Law of the Sea, 86th Cong., 2d Sess. 108-09 (1960); Hearings Before House Committee on Merchant Marine and 

 Fisheries, 88th Cong., 2d Sess. (1964). 



Dodyk, supra note 1, at 147, 129-36. Professor Dodyk would extend this right of innocent fishing to the existing 

 exclusive fisheries zones, and even the territorial seas, of the coastal States. Id. at 130. 



"/d. at 132. 



^Id. at 133. 



VIIH51 



333-092 0-69— 27 



