1 For ,an analysis of the deep seabed negotiation, see Moore, In Search of Common Nodules at UNCLOS III, 18 Va. J. Int’l L. 1 (1977); Moore, J. N., Wolfrum, R., Stopford, P., & Stender, J., Deep Seabed Mining in the Law of the Sea Negotiations (II): Toward a Balanced Development System (Oceans Policy Study 1:3, Michie Press, 1978)Google Scholar.

2 This article is based on the Third United Nations Conference on the Law of the Sea, Revised Informal Composite Negotiating Text for the Eighth Session, UN Doc. A/CONF.62/WP.10/Rev.1 (April 28, 1979) (ICNT/Rev.1), reprinted in 18 ILM 686 (1979). This succeeds the Informal Composite Negotiating Text (ICNT), the Revised Single Negotiating Text (RSNT), and the Single Negotiating Text (SNT).

3 Darman, The Law of the Sea: Rethinking U.S. Interests, 56 Foreign Aff. 373 (1978).

4 Reisman, The Regime of Straits and National Security: An Appraisal of International Lawmaking, supra at p. 48.

5 A central theme of the Darman challenge, echoing a view of some members of the seabed industry, is that navigational rights in the treaty may not be worth the costs that they project will be associated with acceptance of the treaty, and particularly with what they feel is likely to be an ambiguous regime for seabed mining. Professor Reisman does not raise the seabed mining issue and is concerned with the merits of the national security issues associated with straits transit. The interpretational challenge he espouses, however, seems first to have been publicly triggered by a letter of July 23, 1976, from Senator Barry Goldwater to a number of international lawyers inquiring in less than neutral terms whether the conference text would “guarantee” submerged transit through straits. It is said by some in Washington that the Goldwater letter may have been inspired by one segment of the seabed mining industry, a speculation perhaps fostered by a negative response from a former partner of a prominent Washington firm representing one of the seabed industries that conceded that the author was “not an international law scholar.” This, of course, is in any event not a responsibility of Professors Darman or Reisman whose challenges must be fairly dealt with on their merits and on their merits alone.

The United States should not and will not adhere to a law of the sea treaty unless it unambiguously protects assured access to seabed minerals. This is a pledge repeated by every administration that has dealt with the issue and is an article of faith on Capitol Hill. If seabed mining is dealt with adequately in the negotiation, the hypothetical trade-off that concerns Darman, of course, will be only an imaginary “horrible.”

For a broader frame of reference concerning these straits, seabed mining, and other oceans policy issues in the context of overall U.S. foreign policy interests, see J. N. Moore, A Foreign Policy for the Oceans 1 (Oceans Policy Study 1:4, 1978).

6 The Corfu Channel case (Merits), [1949] ICJ Rep. 4.

7 See, e.g., Osgood, U.S. Security Interests and the Law of the Sea (paper prepared for the Conference on the Law of Sea: U.S. Interests and Alternatives, the American Enterprise Institute, Washington, D.C., Feb. 14, 1975). Darman also emphasizes “the increased range and sophistication of U.S. missiles and missile–launching submarines” as an argument against the need for straits transit rights. See Darman, supra note 3, at 375, 376.

Charles E. Pirtle also sounds the Osgood-Darman trumpet. In a recent paper he says, “The purpose of this paper is to challenge the validity of U.S. claims that national security is inexorably bound to a right of unimpeded transit through straits.” Pirtle, Transit Rights and U.S. Security Interests: “Straits Debate,” 5 Oceans Dev. & Int’l L.J. 477, 479 (1978). One can only marvel at the rigidity of the straw man constructed by Pirtle in this phrase.

8 See, e.g., Richardson, “National Security and the Law of the Sea” (July 13, 1974) (Remarks by Ambassador-at-Large Elliot L. Richardson, Special Representative of the President for the Law of the Sea Conference, at the Launching of the U.S.S. Samuel E. Morison, Bath, Maine, on file at Center for Oceans Law and Policy, University of Virginia). In this statement Ambassador Richardson points out:

Id. at 8.

9 Darman, supra note 3, at 377, and generally at 376–78.

10 See generally for background on naval defense issues, J. Nathan & J. Oliver, The Future of United States Naval Power (1979).

11 Darman, supra note 3, at 375.

12 Ambassador Richardson has reaffirmed this point that we will not trade off basic interests to gain protection for navigation. See Richardson, supra note 8, at 12. No U.S. representative to the conference has stated a different view.

13 Darman, supra note 3, at 378–79.

14 Like many other contemporary international relations theorists, Darman seems seriously to underestimate the role of authority in international relations. See Darman, supra note 3, at 382. See generally on the point, Moore, The Legal Tradition and the Management of National Security, ch. 10 in Toward World Order and Human Dignity (Reisman & Weston eds. 1976).

15 See generally on the inadequacies of the innocent passage regime and the history of straits transit problems, M. McDougal & W. Burke, The Public Order of the Oceans 187–269 (1962).

16 Reisman, supra note 4, text at notes 19 and 20.

17 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969) (emphasis added), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969). Although the United States has not yet ratified the Vienna Convention, it is generally accepted as reflective of the customary international law of treaty interpretation. See, e.g., Briggs, United States Ratification of the Vienna Treaty Convention, 73 AJIL 470 (1979).

18 The Vienna Convention on the Law of Treaties, supra note 17.

19 Ibid.

20 Reisman, supra note 4, text at note 66.

21 M. McDougal, H. Lasswell & J. C. Miller, The Interpretation of Agreements and World Public Order (1967).

22 Id. at 123. The background of the Vienna Convention, of course, suggests a more rigid textualist emphasis than this quotation. As the legal reálists have reminded us, however, doctrine and reality are not necessarily coincident, and in practice interpretation under the convention may well approximate the quoted McDougal, Lasswell, & Miller summary despite the syntax used to achieve such a result under the convention.

23 Reisman, supra note 4, text at note 20.

24 Draft articles on the law of treaties with commentaries, adopted by the International Law Commission at its 18th session, Official Records, UN Conference on the Law of Treaties, Documents of the Conference 7, 43, UN Doc. A/CONF.39/ ll/Add.2 (1971).

25 Apparently, the proponent has the burden of showing “special meanings” of terms under the Vienna Convention, but the point is that such special meanings may be shown and are not excluded by an initial textual focus.

26 Burke, Submerged Passage Through Straits: Interpretations of the Proposed Law of the Sea Treaty Text, 52 Wash. L. Rev. 193, 193 (1977). This article is the definitive work to date on the interpretation of the straits chapter of the ICNT.

Burke goes on to say:

Ibid.

27 Letter from H. Gary Knight to Senator Barry Goldwater, at 11–13 (July 29, 1976) (the letters referred to in this note are on file at the Center for Oceans Law and Policy, University of Virginia). Knight does not assert that this interpretation is a necessary interpretation, merely that it is “arguable.” He concludes his discussion on this point by saying, “an honest case can be made both for and against the proposition that Article 19 [Article 20 of the ICNT] is applicable to ‘transit passage.’ “ Id. at 13.

The letter from Senator Goldwater of July 23, 1976, to a number of international lawyers on the issue of interpretation of the straits chapter asks several questions that may confuse fair interpretation such as: does the term “‘freedom of navigation,’ as used in international law, include freedom of submerged transit through territorial waters in straits?” This confuses the doctrines of high seas freedoms and innocent passage and distracts attention from the major rationale of the straits chapter, that as high seas freedoms are lost in straits by an expansion of the. territorial sea it becomes imperative to create a new regime

Despite the less than neutral terms of the letter, Professors Richard B. Bilder, William T. Burke, Louis Henkin, Brunson MacChesney, Ved P. Nanda, and Stefan A. Riesenfeld interpreted the text as clearly including a right of submerged transit. In contrast, Professors Gary Knight, Jerome C. Muys, Michael Reisman, and Alfred Rubin did not assert that the text prohibited submerged transit but merely that it did not unambiguously include it. The responses of Professors Richard Falk, Edward Gordon, and Woodfin L. Butte do not as easily fit into either category. The counter–textual arguments indicated in these letters are, I believe, fully dealt with in this article.

Of particular relevance to the inapplicability of the Article 20 requirement concerning surface transit of submarines is Burke’s statement in his reply that “[i]t is my opinion that Article 19 [Article 20 in the ICNT] is inapplicable to transit passage and that the RSNT makes this clear beyond reasonable doubt.” Letter from Professor William T. Burke to Senator Barry Goldwater, at 1 (July 29, 1976).

28 Cyprus, Greece, Indonesia, Malaysia, Morocco, Philippines, Spain and Yemen: Draft articles on navigation through the territorial sea including straits used for international navigation, UN Doc. A/AC.138/SC.II/L.18 (March 27, 1973).

29 Statement of Mr. Ruiz Morales of Spain, UN Doc. A/AC.138/SC.II/SR.60 at 188 (1973). Similarly, in another representative statement of the strait state view, Mr. Tolentino of the Philippines said in explaining the 8-power draft straits articles, “navigation through the territorial sea and through straits used for international navigation should be dealt with as one entity thus necessitating a unified approach.” UN Doc. A/AC. 138/ SC.II/SR.58 (1973).

30 Statement by John Norton Moore, U.S. representative to the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, April 2, 1973, USUN Press Release No. 32(73) at 2 (April 3, 1973).

31 Statement by John Norton Moore in Committee II on July 22, 1974, 71 Dep’t State Bull. 409, 409–10 (1974).

32 See Amendments to the Informal Single Negotiating Text (March 30, 1976) (submitted to Committee II by Spain), in 2 Dokumente der Dritten Seerechtskonferenz der Vereinten Nationen—New Yorker Sessionen 1976, at 514, 518 (ed. Platzoder 1977) [hereinafter cited as Platzöder]; UN Doc. A/CONF.62/C.2/Informal Meeting/ 4 (April 26, 1978) (unpublished Informal Suggestion Submitted to Committee II by Spain); and Amendments to the Informal Single Negotiating Text Part II (undated) (submitted to Committee II by Greece) in Platzoder, at 530.

38 See the letter to Senator Barry Goldwater from H. Gary Knight, supra note 27, at 11.

34 The United Kingdom draft articles, for example, provided that

See Draft Articles on the Territorial Sea and Straits (July 3, 1974) (submitted to Committee II by the United Kingdom), 3 Official Records, Third United Nations Conference on the Law of the Sea 183, UN Doc. A/CONF.62/C.2/L.3 (1974).

35 Reisman, supra note 4, text at notes 53 and 54.

36 Reisman, supra note 4, text at note 58.

37 Letter from W. Michael Reisman to Senator Barry Goldwater, supra note 27, at 4–5 (August 5, 1976).

38 See the remarks by Ambassador Richardson, supra note 8, at 11.

See also the letter of August 11, 1976, from Stuart P. French, Secretary of Defense Representative for the Law of the Sea Conference, to Senator John C. Stennis, Chairman of the Senate Committee on Armed Services (on file at Center for Oceans Law and Policy, University of Virginia). French writes, after a careful analysis of the issues raised in the replies to the Goldwater letter:

This letter also details the negotiating history of the phrase, “in the normal mode,” fully supporting that it includes, indeed primarily refers to, submerged transit.

39 Amendments to the Informal Single Negotiating Text (submitted to Committee II by Spain), in Platzöder, supra note 32, at 522.

40 Proposed amendments by Greece, supra note 32, at 530.

41 Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 AJIL 57, 64 (1978).

42 368 Parl. Deb., H.L. (5th Ser.) 1249 (1976).

43 370 Parl. Deb., H.L. (5th Ser.) 1409 (1976). Similarly, on February 2, 1978, Lord Kennet asked Her Majesty’s Government: “How many ‘international straits’ [within the meaning of the Composite Negotiating Text] in which the regime of free transit for warships [including submerged submarines] would operate, exist within 12 nautical miles of the United Kingdom?” 388 Parl. Deb., H.L. (5th Ser.) 916 (1978).

It should also be noted that both the innocent passage and transit passage provisions of the SNT built heavily on the UK dual proposal, and that proposal, which was understood by all to permit submerged transit, specifically included in the innocent passage part a general requirement like that in Article 20 of the ICNT that submarines must surface and show their flag. But since in the UK text the article requiring surfacing clearly applied only to innocent passage and not to straits transit, there seems no justification for alleging that in the ICNT, deriving from the SNT patterned on the UK text, Article 20 applies to transit passage.

The Article 34 phrase about the passage regime “not in other respects” affecting the status of the waters was drafted to meet concerns in the UK-Fiji straits negotiating group that a state would not be able to exercise territorial sea rights other than passage, e.g., resource rights. It was not intended to and does not reintroduce innocent passage in any way.

44 Burke, supra note 26, at 205.

45 Reisman, supra note 4, at 70.

46 Ibid.

47 Address by the Honorable Henry A. Kissinger, Secretary of State, before the American Bar Association Annual Convention, Montreal, Canada, Dept. of State Press Release No. 408, at 5 (August 11, 1975), reprinted in 73 Dep’t State Bull. 353 (1975).

48 Reisman, supra note 4, at 69.

49 See generally, W. Hohfeld, Fundamental Legal Conceptions (1923) (see particularly the Introduction by Walter Wheeler Cook).

50 Reisman, supra note 4, text at note 55.

51 Id., text at note 58.

52 Most recently, Ambassador Richardson confirmed:

Remarks by Ambassador Richardson, supra note 8, at 11. The “exceptions” refer to Article 233 in conjunction with Article 42.

53 See Amendments . . . Proposed By the Spanish Delegation, supra note 39, at Art. 42(4).

54 See the Informal Suggestion by Spain, supra note 32, at Arts. 39(2)(a), 41(5), and 42(b) and (e).

55 See UN Doc. A/CONF.62/C.2/Informal Meeting/22 (April 28, 1978) (unpublished Informal Suggestion submitted to Committee II by Morocco).

56 See generally McDougal & Burke, supra note 15, at 216–21. They conclude on the merits of this issue:

Id. at 194.

57 Amendments to Informal Single Negotiating Text (September 8, 1976) (submitted to Committee II by Yemen), in Platzöder, supra note 32, vol. 3 at 678.

58 See also Oxman, supra note 41, at 66.

59 Reisman, supra note 4, at 65.

60 Id. at 66.

61 Id. at 65–66 (emphasis added).

62 Id., text at note 45.

63 Id. at 67.

64 Dean, Geneva Conference on the Law of the Sea, 53 AJIL 593 (1959).

65 See The Arab-Israeli Reader 1083, 1188 (ed. Moore 1977).

66 Reisman, supra note 4, text at note 43.

67 The Corfu Channel case, [1949] ICJ Rep. 4, 28 (emphasis added).

68 Ibid, (emphasis added).

69 Reisman, supra note 4, at section III, “Straits.”

70 With respect to the special convention regimes in each of these three straits, see generally E. Brüel, 1 International Straits 195–200 (1947) (Montreux Convention of 1936 and Danish-Swedish Declaration of 1932), and E. Brüel, 2 International Straits 11–115, 200–51, 252–424 (1947) (the Danish Straits, the Strait of Magellan, and the Turkish Straits). Passage through the Strait of Gibraltar is not subject to special international treaty provisions within the meaning of Article 35(c) of the revised ICNT. See id. at 165. This was well understood in the negotiations.

71 Reisman, supra note 4, at 59.

72 Ibid. (footnote omitted).

73 Id., text at notes 31–35.

74 A statement of the U.S. representative in the Second Committee at Caracas on July 22, 1974, lends some support to this interpretation of the limitation to forceful threats against the coastal state. Thus, it was said: “The convention should require that ships and aircraft in transit refrain from any threat or use of force, in violation of the Charter of the United Nations, against the territorial integrity or political independence of a State bordering the strait.” Record of the 12th meeting of the Second Committee (July 22, 1974), 2 Official Records: Third United Nations Conference on the Law of the Sea 128 (1974).

75 McDougal & Burke, supra note 15, at 258.

76 Id. at 257–58.

77 Id. at 258.

78 Reisman, supra note 4, at 65.

79 See Burke, supra note 26. See also Kuribayashi, The Basic Structure of the New Regime of Passage Through International Straits—An Emerging Trend in the Third UNCLOS and Japan’s Situation, in a publication of the Japan Branch of the International Law Association at 29, 37–38 (1977); M. Leifer, International Straits of the World: Malacca, Singapore and Indonesia (1978), and Lapidoth, Bab-Al- Mandeb, 13 Israel L. Rev. 180, 189–90 (1978).

80 On a topic as important as UNCLOS straits transit, the appearance of articles interpreting the text during the continuation of the conference may, of course, tempt disgruntled participants to attempt to reinforce revisionist interpretations.

81 Acceptance—as a reasonable accommodation—of the UNCLOS straits regime reflected in the ICNT should not be assumed to extend to all other aspects of the ICNT, or even to all other navigational and security aspects of that text. In my judgment, the text remains seriously deficient on seabed mining, the “status of the economic zone,” protection of cetaceans, delimitation of the outer edge of the continental margin, and marine scientific research. In its present form it could not obtain Senate advice and consent.

For specific recommendations on “status of the zone” and “marine scientific research,” see Moore, Some Specific Suggestions for Resolving Two Lingering Law of the Sea Problems: Packages of Amendments on “The Status of the Economic Zone” and Marine Scientific Research, 19 Va. J. Int’l L. 401 (1979).