Power, Mobility and the Law of the Sea

Elliot L. Richardson

From Foreign Affairs, Spring 1980

Article preview: first 500 of 7,601 words total.

Summary:  In the late summer of 1979 the Norfolk (Va.) Ledger Star based a lead story on the leak of a classified communication from the naval command there (CINCLANT) to units of the Atlantic fleet, laying out procedures to be followed by the U.S. government in protecting traditional high-seas freedoms. Three days later The New York Times picked up the story, running it on the front page under the headline, ?U.S. Will Challenge Coastal Sea Claims That Exceed Three Miles.? The United States, said the Times, ?ordered the Navy and Air Force to undertake a policy of deliberately sending ships and planes into or over the disputed waters of nations that claim a territorial limit of more than the three miles accepted by the United States and 22 other nations.? A decision had been taken, the story said, to ?show a more active interest . . . because simply protesting diplomatically about such limits would not be effective.?

Ambassador at Large Elliot L. Richardson is Special Representative of the President for the Law of the Sea Conference and heads the U.S. delegation to the Third United Nations Conference on the Law of the Sea. He has also served as Under Secretary of State and Secretary of Defense.

In the late summer of 1979 the Norfolk (Va.) Ledger Star based a lead story on the leak of a classified communication from the naval command there (CINCLANT) to units of the Atlantic fleet, laying out procedures to be followed by the U.S. government in protecting traditional high-seas freedoms. Three days later The New York Times picked up the story, running it on the front page under the headline, "U.S. Will Challenge Coastal Sea Claims That Exceed Three Miles." The United States, said the Times, "ordered the Navy and Air Force to undertake a policy of deliberately sending ships and planes into or over the disputed waters of nations that claim a territorial limit of more than the three miles accepted by the United States and 22 other nations." A decision had been taken, the story said, to "show a more active interest . . . because simply protesting diplomatically about such limits would not be effective."1

On the day that the Times story appeared, the Third United Nations Conference on the Law of the Sea was in the fourth week of its Resumed Eighth Session at the U.N. headquarters in New York. Launched at Caracas in 1974 and representing 160 countries-eight more than the U.N. itself-the Conference had succeeded during the intervening years in making remarkable progress on the most ambitious agenda ever attempted by a multilateral law-making forum. Substantial consensus had been reached on issues ranging from navigation and overflight, the conservation and management of fisheries resources, the protection of the marine environment, and the exploitation of oil and gas in the continental shelf, to marine scientific research and a carefully balanced system of compulsory dispute settlement. The results were embodied in a text containing nearly 400 articles of which fewer than ten percent remained controversial. By far the most troublesome issues still unresolved concerned the regime for deep seabed mining, which necessitated designing a new kind of international institution responsible to the world community as a whole. Only a handful of other substantive issues still awaited resolution. Delegates were at last beginning to believe that an effort which had come so far might yet confound the skepticism that had always surrounded it.

Reaction to the CINCLANT leak ranged from surprise to indignation. Many delegates assumed that the timing of the leak had been deliberately calculated to put pressure on the Conference. The Coastal States Group-87 countries in all-hurriedly convened an executive session to deliberate upon a response. Beyond assuring everyone that the leak was not premeditated, the U.S. delegation noted that the procedures in question were intended merely to give consistent and non-provocative application to the view of international law we had long maintained-that so long as there was not universal acceptance of some clear definition of the territorial sea other than the historic three-mile limit, the United States was bound to assert its own view.

These assurances, however, did not succeed in heading off statements and counter-statements in the closing plenary session of the Conference. ...

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