SEDENTARY SPECIES INCLUDED UNDER ARTICLE 2

The United Nations Conference on the Laws of the Sea convened on February 24, 1958, was faithful to the General Assembly's conclusion that it should take cognizance "not only of the legal, but also of the technical, biological and economic and political aspects of the problem ***." According to Jessup, the Conference was adequately documented and staffed with a wide range of experts in all these fields. Some 700 delegates from 86 countries attended.23 With specific reference to the Convention on the Continental Shelf, the chief purpose of the United States was described by Loftus Becker, Legal Adviser to the Department of State as follows:

"Article 2 represents the effort of our delegation to maximize coastal state control over mineral resources but to limit control over animal resources." 24 The chief U.S. delegate to the Conference, the Honorable Arthur Dean, has traced the background of the effort:

"There had been considerable disagreement among states as to whether animal life, which is dependent upon the seabed but is not permanently attached to the seabed belongs exclusively to the coastal state. The United States has engaged in controversy with Mexico as to whether American fishermen may take shrimp from the seas lying over the Mexican Continental Shelf." 25

The draft articles of the ILC were presented to the fourth committee, the Committee on the Continental Shelf of the Conference on the Law of the Sea.26 Article 2 as finally adopted in the convention was based on article 68 of the 1956 ILC draft. Paragraph 1 of that convention as adopted in the eighth plenary session now reads:

"The coastal state exercises over the Continental Shelf sovereign rights for the purpose of exploring and exploiting its natural resources.'

9927

This section retains the 1956 ILC wording of "sovereign rights." Article 2, paragraph 2, reads:

"The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal state does not explore the Continental Shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the -Continental Shelf, without the express consent of the coastal state."

As finally adopted in the eighth plenary session, this paragraph reflects language found in the commentary to the ILC draft article 68, paragraph 2. Paragraph 3 of article 2 is an exact reproduction of paragraph 7 of the ILC commentary on article 68 of its 1956 draft.

"The rights of the coastal state over the Continental Shelf do not depend on occupation, effective or notional, or on any express proclamation."

Paragraph 4, setting forth the definition of the "natural resources" as used in the articles provided the occasion for considerable controversy.

28

The text as approved in committee IV was the result of a joint proposal for an amendment of article 68 of the ILC 1956 draft sponsored by Australia, Ceylon, the Federation of Malaya, India, Norway, and the United Kingdom and subsequently by both the United States and the Soviet Union. This text was the same as the present paragraph 4 of the convention with the addition of a final clause, "but crustacea and swimming species are not included in this definition." In explaining the meaning of this amendment to article 68 the delegate from Ceylon, stated that the sponsors of the amendment had divided the natural resources in question into (1) those which were immobile; (2) those which moved only a few feet or less; and (3) those which moved considerable distances; i.e., swimming species and crustacean; and it had seemed reasonable to them to draw the line between (2) and (3). In explaining the meaning of the amendment, as he offered it, Professor Bailey of Australia said that it was "merely a detailed expression of the principle laid down in the ILC's commentary on the article," and that the joint amendment was the result of close consultation between lawyers and biologists. The sponsors felt that it was the permanent intimate association of certain living organisms with a seabed which

30

23 Jessup, "The United Nations Conference on Law of Seas." 59 Col. L.R. 234, 235. 24 Becker, 42 Department of State Bulletin (1960), 251 at 258. Dean, "the Geneva Conference on the Law of the Sea: What Was Accomplished," 52 A.J.I.L., p. 620.

26 A/Conf. 13/C.4/SR. 24.

27 A/Conf. 13/SR. 8.

28 A/Conf. 13/C.4/L.36.

29A/Conf. 13/C.4/SR., p. 7.

30 A/Conf. 13/C.4/SR. 24, p. 62.

31 See Yearbook of the ILC, 1956, vol. II, p. 297, para. (3) and (4); 51 A.J.I.L. 246.

justified giving the coastal states exclusive rights in regard to such organisms. In other words, living organisms belonging to the sedentary species did not now cover all "the products of 'sedentary' fisheries" which was the term used by the Commission in paragraph (3) of its commentary. They defined the living or ganisms of the seabed and subsoil belonging to sedentary species as "coral, sponges, oysters, including pearl oysters, pearl shell, the sacred chank of India and Ceylon, the trochus and plants." * Professor Bailey continued:

"Sponsors of the amendment have agreed that no crustacea or swimming species should be covered by the definition. Swimming species were obviously not sedentary. It was true that the term 'crustacea' included all crabs, of of which some species were unable to move except in contact with the seabed or subsoil; but those species could move considerable distances." (Emphasis supplied.)

33

At the eighth plenary session of the conference the final phrase, "but crustacean and swimming species are not included in this definition" was rejected with the approval of Australia (an original sponsor of the language) which according to Delegate Whiteman had come to regard the phrase as superfluous.34

35

Most participants in the conference itself and commentators state that crustacea and swimming fish are not included in the natural resources of the Continental Shelf over which the coastal State has sovereign rights. Typical of this feeling is the conclusion by Delegate Garcia-Amador that the clause was stricken in the plenary session because "the sentence as a whole, was in effect, obviously redundant and therefore unnecessary; for the definition as stated in the present paragraph 4 of article 2 of the convention unquestionably excludes crustacean as much as it excludes the swimming species which may be found in the superjacent waters of the Shelf." * This position is buttressed by the explanation of Professor Bailey of the term "unable to move except in constant physical contact with the seabed or the subsoil" which he states could not refer to "crustacea" since these species of crab which were unable to move except in contact with the seabed or subsoil moved considerable distances. MacDougal and Burke conclude that the category "species which when harvestable are immobile or move in constant physical contact with the seabed" is assumed and was so explained at the conference to include species which move but a few feet or inches from a fixed location on the sea floor." As GarciaAmador (chairman of the eighth session of the ILC which drafted article 68) points out, the fact that a number of delegations who during the voting in committee IV had voted to retain the sentence "crustacea and" in the original joint proposal, now voted for its deletion in the plenary session, strengthens the interpretation that the delegates thought article 2, paragraph 4, with a final clause: "crustacean and swimming species are not included in this definition" was redundant and unnecessary." This interpretation is further demonstrated by the fact that it was Australia, the principal sponsor of the joint amendment proposal in committee IV, approved the deletion of the phrase as superfluous in the plenary.

37

Any ambiguity concerning the exclusion of decapod crustaceans would seem to be dispelled by the interpretation supplied in response to a series of questions asked of Chief Delegate Arthur H. Dean by the Senate Foreign Relations Committee while considering the ratification of the Convention on the Continental Shelf. As stated in Senate Executive Report No. 5, 86th Congress, second session:

"Under this definition, for example, clams, oysters, and abalone are included as natural resources whereas shrimp, lobsters, and finny fish are not." (Emphasis supplied.) 38

It should be noted that the lobster like the king crab is a decapod crustacean which in its harvestable stage lives under stones and among seaweed on the seabed but is in its adult stages capable of movement only in constant physical

32 A/Conf. 13/C.4/SR.21, pp. 7-8.

33 Ibid., p. 8.

Whiteman, "Conference on Law of the Sea; Continental Shelf," 52 A.J.I.L., p. 638, note 58. Garcia-Amador, "The Exploitation and Conservation of the Resources of the Sea," p. 128 (1959).

26 MacDougal and Burke, "The Public Order of the Oceans," Yale University Press (1962), pp. 660, 661.

37 Garcia-Amador, op. cit., pp. 127, 128.

38 Hearings, Conventions on the Law of the Sea, 86th Cong., 2d sess., on Executives J, K, L, M, N (Jan. 20, 1960), p. 88; see also Ex. Rept. No. 5, 86th Cong., 2d sess. (Apr. 27, 1960), p. 9.

contact with the seabed. Also like the king crab, the young lobsters drift freely in the open sea but upon achieving adulthood they descend to the bottom where they spend the rest of their lives. Again, there is a distinct similarity in the gear used to catch both the lobster and the king crab. Lobsters are caught in small wooden traps or pots which are baited with fish and lowered to the bottom at depths of 1 to 30 fathoms. The traps are hauled daily or as often as can be allowed. The king crab is similarly caught in steel pots lowered to the bottom of the sea or in tangle nets anchored to the seabed. The king crab is even more mobile than its brother decapod crustacean, the lobster. While lobsters move offshore to deeper waters in the fall and return in the spring, their migrations are not extensive. However, as we have indicated previously, it is known that the king crab travels a great distance with the record substantiated at 300 miles.

Although Professor Bailey's statement is generally conceded to stand for the proposition that all crustaceans are excluded from the term "natural resources," any ambiguity relating specifically to the king crab seems to have been dispelled by this analogy to the lobster which species is specifically excluded by the interpretation given by the U.S. Senate and included in its report recommending ratification of the Convention. In view of this fact, we must consign the king crab and the lobster to the regime of the high seas where no State may validly purport to claim sovereign rights."

In view of the fact that the king crab is not a specie governed by the regime of the Continental Shelf but a specie governed by the regime of the high seas, the provisions of the present legislation prohibiting the taking by foreign nationals of "any Continental Shelf fishery resource which appertains to the United States" or "fishery resources of the Continental Shelf claimed by the United States" cannot identify a valid U.S. claim in international law to exclusive exploitation of the organism. Previously, we have concluded that the Convention on the Continental Shelf although not yet in effect does define international rights, obligations, and duties with respect to the regime of the Continental Shelf.

NO RIGHT IN COASTAL STATE TO EXCLUDE NON-NATIONAL FISHERMEN Even if the Convention on the Continental Shelf did include in article 2, paragraph 4, "king crab” as a natural resource over which the United States could claim "sovereign rights" to exploit, such "sovereign rights" would not extend to the right to exclude absolutely nationals of other states who have historically fished the Continental Shelf area for king crab. Although there is no express provision in article 2 of the Convention that preserves, as against the exclusive rights to exploit of the coastal state, the right of other nationals to continue exploiting fishery resources of the Continental Shelf, this right is clearly defined in all ILC reports and drafts including the final draft article 68 of the ILC eighth session of 1956 which became the basis for article 2 of the Convention. Thus, the 1953 draft of the ILC article is interpreted to mean that the coastal state exercises over the sedentary fisheries on the shelf "sovereign rights" for the purpose of exploiting them, and commentaries 68, 69, and 72 indicated that these rights are to be exclusive and are not dependent on any theory of occupation. Nonetheless, the interpretation of this exclusive right could not justify (according to commentary 71) the coastal state in arbitrarily excluding nationals of other states with pre-existing interests in sedentary fisheries on the Continental Shelf. Again, in the 1956 report, the ILC proposed the same "sovereign rights" of an exclusive nature for the coastal state over living organisms of a sedentary species

See S. Doc. No. 51, 79th Cong., 1st sess., Fishery Resources of the United States (King Crab), pp. 33, 34; (Lobster), pp. 86, 87, 88.

The delegates to the convention had good source material to rely on with respect to distinctions between the various species inhabiting the seabed. The General Assembly by Resolution 1105 (XI) of Feb. 21, 1957, requested the U.N. Secretariat to prepare or arrange for the preparation of working documents of a legal, technical, scientific, or economic nature in order to facilitate the work of the Conference. The Preparatory Document No. 10 was drafted by the Secretariat of the FOA and was entitled, "Examination of Living Resources Associated With the Seabed of the Continental Shelf With Regard to Nature and Degree of Their Physical and Biological Association With Such Seabed" (A Conf. 13/13). This document listed lobster under decapod crustaceans. In adult life, it was noted that this organism "lives under stones and among seaweed." A/Conf. 13/13, p. 192. A glossary of marine biology terms and classifications defined the word "sedentary" as "bottom living organisms which although not fixed to the bottom move little if at all." A/Conf. 13/13, p. 196.

40 See Convention on the High Seas, A/Conf. 13/L. 53.

and again affirmed that the preexisting interests of other nationals should be recognized and safeguarded. Although article 68 of the 1956 draft states specifically that the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources; and although commentaries (2) and (7) to the 1956 ILC draft indicate that the nature of this right is exclusive and that it does not depend on the occupation or any express proclamation, still the ILC in commentary (6) interpreted the coastal states' rights as limited by respect for the existing rights of nationals of other states. It stated again that any interference with such rights, when unavoidably necessitated by the requirements of exploitation and exploration of natural resources is subject to the rules of international law concerning respect for the rights of aliens.

Further, no right of exclusion of other nationals from preexisting fishing rights of sedentary species on the Continental Shelf is recognized by those charged with responsibility for drafting of the articles. Thus, Sir Hersch Lauterpacht, formerly of the International Law Commission, has commented:

"There is agreement that with respect to sedentary fisheries the assertion of the right over the sea bed within the Continental Shelf ought not to result in the deprivation of acquired rights of foreign nationals."

MacDougal and Burke comment that while the 1958 convention does not, unfortunately, contain a specific provision reserving the rights of nonnationals who previously engaged in the exploitation of the natural resources now considered within the exclusive access of the coastal state, the Commission had seemed to state by way of commentary that such previous exploitation was not to be affected by the decision to confer "sovereign right" upon the coastal state. They feel that it is doubtful that the Convention is to be interpreted as authorizing coastal states to prohibit such previously established access except in connection with the exercise of exclusive authority over mineral resources."

42

In applying these principles to the king crab fishery now exploited by the Japanese in the high seas waters north of the Alaskan Peninsula, we submit that there is a valid legal basis founded upon international law for continued exploitation of this resource since Japanese exploitation has been almost exclusive and continuous since 1930 except during World War II and the immediate postwar period. In addition, the Japanese have established certain restrictions designed to protect the king crab.

The foregoing analysis establishes two things. First, the United States appears to have no valid claim under international law to the exclusive exploitation of the king crab fishery resources in the high seas waters off the coast of Alaska, since international law as best enunciated in the Convention on the Continental Shelf (art. 2, par. 4) does not include the king crab as a natural resource over which the coastal state exercises exclusive "sovereign rights" of exploitation. Thus, the king crab is outside of the regime of the Continental Shelf and within the regime of the high seas where freedom to fish in the waters of the high seas is a universally accepted principle.

Second, even if the king crab were to be included in the regime of the Continental Shelf, the United States does not have the right to exclude nonnational fishermen from taking the king crab in the high seas north of the Alaskan Peninsula since the Convention on the Continental Shelf as expositive of international law demands that preexisting fishing rights of other nationals be respected by the coastal state.

S. 1988 AND CLAIM OVER KING CRAB RESOURCES

As previously stated, it is generally agreed that even though the Convention on the Continental Shelf is not ratified, the provisions thereof are the most persuasive statement of the present law of the Continental Shelf. Further, it seems that these rules were intended to be of a permanent and binding nature, and that they are not easily susceptible of change without collective effort at revision, concurred in, and acted upon, by the principal maritime nations who are signatories to the Convention. Thus, it is difficult to see how the United States might have a valid claim to exclusive fishing rights over the king crab in this area without a basic modification of international law.

Lauterpacht (Oppenheim), vol. 1, 8th ed., 1955, p. 634, note 1.

42 MacDougal and Burke, "The Public Order of the Oceans," Yale University Press, 1962, p. 663.

We have taken great pains to demonstrate this fact because as we understand the legislative history S. 1988, heavy penalties apply to the taking by a foreign national of fishery resources over which the United States has a valid claim in international law, and but one basis for these claims is the Convention on the Continental Shelf." However, it appears to us that the king crab cannot be the basis of such a valid international claim by reason of any interpretation of the provisions of the Convention on the Continental Shelf. The distinguished sponsor of S. 1988 suggests that a second source of a valid U.S. claim to the natural resources of the subsoil and seabed of the Continental Shelf off the United States is found in the Submerged Lands Act of 1953 and the Outer Continental Shelf Act of 1953.* Senator Bartlett suggests that these acts have made a unilateral claim-"one that has been repeated by numerous other nations and has been recognized in international law"-to mineral and certain living resources of the Continental Shelf. The term "natural resources" as applicable to the subsoil and seabed of the Continental Shelf are defined as oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life." We respectfully urge that a unilateral declaration or proclamation can establish no valid claim in international law to the exclusive exploitation of any resource unless acquiesced in by the principal maritime powers in the world, or unless the claims themselves are consonant with established principles of international law." With respect to fish, shrimp, crabs, lobsters, it is clear that international law will not sustain the validity of any claim that these living resources are subject to the regime of the Continental Shelf. In addition, ratification by the United States of the Convention on the Continental Shelf would seem to bind the United States to the definition of "natural resources" found in article 2, paragraph 4, whatever the scope of any claims asserted in the Outer Continental Shelf Act of 1953, a prior statute." Thus, it would seem certain that crabs, lobsters, shrimp, and fish could not be the subject of a valid claim in international law as living resources of the Continental Shelf belonging to the United States.

45

SOME CONSTITUTIONAL CONSIDERATIONS UNDER U.S. LAW

The previous discussion has proceeded on the basis that the proposed legislation seeks to extend enforcement provisions over U.S. claims valid in international law to exclusive fishing rights for certain species of living resources of the Continental Shelf; that the legislation does not unilaterally establish any new international rights. Throughout the debate on S. 1988 in the Senate, it was reiterated that the bill itself is not a claim to any living resource of the Continental Shelf nor does it attempt to identify such claims, but only to provide for immediate enforcement "of these claims when clarified and when a question is properly raised." " But the king crab cannot be a subject of valid claim by the United States, as we have also pointed out. On the other hand, it is our understanding of U.S. law that a subsequent statute duly enacted by the Congress of the United States may nullify the terms of a treaty ratified by the United States with respect to the domestic law of the United States. In view of this analysis, it is pertinent to consider the effect of an attempt to enforce against Japanese king crab fishermen fishing in the high seas waters of the Continental Shelf of Alaska, the provisions of the legislation as it now stands. It is first to be noted that this is a criminal statute providing for extremely severe sanctions. Due process of law under the fifth amendment to the Constitution in a criminal prosecution consists of a law creating or defining the offense which must be sufficiently explicit in its description of the acts, conduct, or conditions required or forbidden, to prescribe the elements or events with reasonable certainty, fix an ascertainable standards of guilt, make known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Corpus Juris Secundum, Con

43 156 Congressional Record, 88th Cong., 1st sess., p. 17555, Senator Robert S. Bartlett. 44 Submerged Lands Act of 1953, Public Law 31, 83d Cong., 1st sess., 43 U.S.C. 1301, 67 Stat. 29 (1953); Outer Continental Shelf Act of 1953, Public Law 212, 83d Cong., 1st sess.. 43 U.S.C. 1332, 67 Stat. 462 (1953).

The Truman Fishery Proclamation ex

45 United Kingdom v. Norway (1951), I.C.J. Rept. 116 at 132. 46 Executive Order No. 2668, Sept. 28, 1945. pressed established principles of international law. 47 MacDouglas and Burke, op. cit., p. 669, note 300.

4 156 Congressional Record, 88th Cong., 1st sess., p. 17555.

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