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Canada and the Control of Arms on the Seabed
Published online by Cambridge University Press: 09 March 2016
Extract
One of the least-known and certainly least-celebrated measures of arms control to be negotiated since the Second World War is the 1971 treaty prohibiting the emplacement of nuclear weapons on the seabed. Admittedly, it is not one of the more significant agreements of its kind, being a preventative “non-armament,” rather than a true disarmament measure, and relating to weapons which, although technically feasible, are not at present thought to be of any great military value. Nevertheless, it is important. At least one measure of the treaty’s significance is its role as a first step towards a more comprehensive demilitarization of this vast, new environment — the terrestrial analogue of outer space — which is only beginning to be opened up to human exploration and exploitation. The seabed, including the continental margin1 as well as the so-called “deep ocean floor,” covers no less than seventy per cent of the earth’s surface, or about one hundred million square miles.
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- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 13 , 1976 , pp. 195 - 230
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- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1976
References
1 This consists of the continental shelf proper, the slope descending to the abyssal floor, and the rise where the slope meets the floor.
2 Canada’s continental shelf is the second largest in the world, after that of the U.S.S.R., and is equivalent to forty per cent of Canada’s total land area. Alexandrowicz, , “Canadian Approaches to the Seabed Regime,” in Macdonald, et al. (eds.), Canadian Perspectives on International Law and Organization 410 (Toronto, 1974).Google Scholar
3 For precise figures, see Cowie, , Mines, Minelayers and Minelaying 86–89, 16567 (1949).Google Scholar
4 Ibid. 53–59, 60, 68–70, 78–80, 131–35.
5 Garwin, , “Antisubmarine Warfare and National Security,” 227 Scientific American 22 (1972).CrossRefGoogle Scholar
6 For accounts of the state-of-the-art in “strategic” ASW, see Tsipis, et al. (eds.), The Future of the Sea-Based Deterrent (1973)Google Scholar, and Stockholm, International Peace Research Institute, Tactical and Strategic Antisubmarine Warfare (1974).Google Scholar
7 See, for example, Frosch, “Military Uses of the Ocean,” in Mershon Center for Education in National Security, Papers Presented at Second Conference on Law, Organization and Security in the Use of the Ocean 157 (1967); Hirdman, “Weapons in the Deep Sea,” 13 Environment 36 (1971); Marx, , The Frail Ocean 201 (1967)Google Scholar; and U.S. Senate Committee on Foreign Relations (Hearing), Seabed Arms Control Treaty 21, 25 (1972).
8 For an account of Pentagon opposition to the 1971 Treaty, see Wenk, E. Jr., The Politics of the Ocean 290 (1972).Google Scholar
9 See, for example, “Report of the Panel on Marine Engineering and Technology,” Part VI of Panel Reports of the [U.S.] Commission on Marine Science, Engineering and Resources (1969); Stockholm International Peace Research Institute, Yearbook of World Armaments and Disarmament тдбд/ yo 92–184 (1970); Baker, and Gruson, , “The Coming Arms Race Under the Sea,” in Rodberg, and Shearer, (eds.), The Pentagon Watchers 335–70 (1970)Google Scholar; and Hirdman, supra note 7, at 28–42.
10 The more precise term for the latter is “seabed and subsoil beyond the limits of national jurisdiction.” The more common phrase used here is actually somewhat of a misnomer since it includes oceanic peaks (seamounts) and ridges which may extend to a point just below the surface of the sea.
11 Brown, , “The Legal Regime of Inner Space: Military Aspects,” 22 Current Legal Problems 184 (1969).CrossRefGoogle Scholar
12 Gehring, , “Legal Rules Affecting Military Uses of the Sea-Bed,” 54 Military L. Rev. 181 (1971).Google Scholar
13 Ibid., 182, and Brown, supra note ri, at 185.
14 Gehring, supra note 12, at 183, footnote 72.
15 Burke, et al., Towards a Better Use of the Ocean 111 (1969)Google Scholar; McDougal, and Burke, , The Public Order of the Oceans 717 (1962)Google Scholar; Krieger, , “The U.N. Treaty Banning Nuclear Weapons and Other Weapons of Mass Destruction on the Ocean Floor,” 3 J. of Maritime L. & Com. 108–09 (1971)Google Scholar; and Brown, , Arms Control in Hydrospace: Legal Aspects 30, at footnote 78 (1971).Google Scholar
16 See, for example, Katin, , The Legal Status of the Continental Shelf As Determined by the Conventions Adopted at the 1958 United Nations Conference on the Law of the Sea (Ph.D. Thesis, University of Minnesota, 1962), 125–27.Google Scholar
17 McDougal and Burke, op. cit. supra note 15, at 724; for similar views, see Petrowski, , “Military Use of the Ocean Space and the Continental Shelf,” 7 Colum. J. of Transnat’l L. 291 (1968)Google Scholar, and Gehring, supra note 12, at 190.
18 Brown, op. cit. supra note 15, at 31–32.
19 Ibid., 33.
20 See McDougal and Burke, op. cit. supra note 15, at 719, 724; Burke et al., op. cit. supra note 15, at 99, 111–12; Gehring, supra note 12, at 190–95; Slouka, , International Custom and the Continental Shelf 32, 118 (1968)Google Scholar; and Petrowski, supra note 17, at 292–93.
21 Burke et al., op. cit. supra note 15, at 107–08.
22 Brown, op. cit. supra note 15, at 28. Brown again makes an exception for ASW sensors on the grounds of state practice, (ibid., 35).
23 Treaty for the Prohibition of Nuclear Weapons in Latin America, Article 3 (634 U.N.T.S. 281).
24 Ibid., Articles 4, para. 2, and 28, para. 1.
25 Antarctic Treaty, Article VI.
26 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Article 1 (emphasis added).
27 Burke et al., op. cit. supra note 15, at 100.
28 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Article 1, para. 1 (7 Int’l Leg. Mat. 155).
29 Brown, , “The Demilitarisation and Denuclearisation of Hydro-space,” (1973) Annals of International Studies 74.Google Scholar
30 Scott, (ed.), The Hague Conventions and Declarations of 189g and 1907 151–52 (1915)Google Scholar: Articles I, 2, 3, and 5.
31 See Cowie, op. cit. supra note 3, at 171–72; and Stone, , Legal Controls of International Conflict 584–85 (1954).Google Scholar
32 Article I, para. 1; U.N. Doc. CCD/269/Rev. 3.
33 U.N. Docs. ENDC/PV. 397, at 11; CCD/PV.440, at 9; and U.S. Senate Committee on Foreign Relations, supra note 7, at 12, 14.
34 ENDC/PV.397, at il; and U.S. Senate Committee on Foreign Relations, supra note 7, at 15.
35 CCD/PV.440, at 9.
36 U.N. Doc. A/6695.
37 Formally entitled “Ad Hoc Committee to Study the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction.”
38 U.N. Doc. A/C. I/PV.1524, at 22.
39 A/C.1/PV.1539 at 75. In a written submission to the Secretary-General several months later Canada disavowed the desire to express any preference whatsoever on the matter (A/AC.135/1, at 34).
40 A/C.1/PV.1544, at 22.
41 A/AC.135/20 and A/AC.135/24.
42 A/AC.135/WG.1/SR.8, at 75.
43 ENDC/227, at 5 and ENDC/228.
44 A/G.1/PV.1524, at 22.
45 A/C1/PV.1525, at 16.
46 A/C.1/PV.1529, at 74–75.
47 A/AC.135/SR. 3, at 14–15.
48 A/AC.135/WG.1/SR.6, at 34.
49 A/AC.I35/WG.I/SR. 8, at 75–76.
50 A/AC.135/SR.20, at 98.
51 A/C. I /PV. I599, at 28.
52 ENDC/240, Article I.
53 ENDC/PV.405:io; ENDC/PV.413:5–6.
54 ENDC/PV.405, at 24–25; and ENDC/PV.411, at 8.
55 Ambassador Ignatieff of Canada made a particularly strong statement, declaring that:
Under Article 51 of the United Nations Charter we cannot accept the position that Canada should be prohibited from placing in coastal waterways, straits and the ocean depths at far greater distances than twelve miles surveillance devices which can detect the approach to our shores of ships, submarines or weapons, so long as these military vehicles have freedom to navigate in the approaches to our shores. (ENDC/PV.410, at 6).
56 ENDC/PV.404, at 9.
57 ENDC/PV.410, at 18–19.
58 ENDC/PV.404, at 24.
59 ENDC/PV.410, at 6.
60 ENDC/PV.409, at 9–10.
61 ENDC/PV.421, at 13.
62 ENDC/PV.423, at 17.
63 ENDC/PV.421, at 14.
64 ENDG/PV–422, at 14.
65 ENDC/PV.424, at 10.
66 ENDC/PV.421, at 31; ENDC/PV.426, at 17; ENDC/PV.430, at 18–19; ibid., at 32; and CCD/PV.434, at 26.
67 ENDC/PV.428, at 8. The representative of the U.K. was later to declare his personal “great sympathy” with a prohibition of “at any rate some conventional weapons — those, for example, which by virtue of their design or their location could threaten the territory of another State” (CCD/PV.444, at 22), but that was after submission of the joint draft treaty, of which he disavowed any intention of seeking to amend.
68 ENDG/PV.424, at il.
69 ENDC/PV.423, at 24.
70 CCD/PV.434, at 7.
71 CCD/269.
72 CCD/271.
73 CCD/PV.447, at 15.
74 CCD/269/Rev. 3 at 3 (emphasis added).
75 Canada Treaty Series 1972 No. 20.
76 The Geneva Convention accorded the coastal state sovereign rights over the “seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of two hundred metres, or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas” (Article 1). The “exploit-ability” criterion thus made the definition technically an open-ended one.
77 A/AC.135/SR. 3, at 14–15.
78 A/AC. 135/20.
79 A/AC. 135/WG. WG.I/SR. 7, at 56; A/AC.135/SR.16, at 36; and A/AC.135/ SR. 17, at 56, 57.
80 A/AC.135/SR.23, at 154–56; A/AC135/SR.24, at 158–61.
81 See, for example, A/C.1/PV.1592, at 6; A/C.1/PV.1603, at 22, 25–26; and A/C.1/PV.1605, at 41–52, 55.
82 The Soviets did succeed, however, in altering the mandate of the future permanent Seabed Committee from one of studying the reservation exclusively for peaceful purposes of “this area” (referring to the area “beyond the limits of national jurisdiction”), to studying such a reservation “without prejudice to the limits which may be agreed upon in this respect.” (See A/7477, at 2–8).
83 A/C. 1/PV. 1596, at 36.
84 A/C. 1/PV. 1599, at 28.
85 ENDC/240, Article I; and ENDC/249, Articles 1 and 2.
86 ENDC/249, Article 2, para. 3.
87 ENDG/PV.422, at 15–16.
88 U.K., ENDC/PV.404, at 9; Italy, ENDC/PV.410, at 16 and ENDC/PV.423, at 14; and Ethiopia, ENDC/PV.430, at 33. Italy maintained that in the latter case a depth criterion of two hundred metres, qualified by a minimum width of twelve miles, would be necessary to ensure the security of states with broad continental shelves. (ENDC/PV.410, at 17–18 and ENDC/PV. 423, at 14)
89 ENDC/PV.410, at 5–6.
90 Ibid., 6–7.
91 Ibid., 7.
92 Ibid.
93 ENDC/PV.423, at 14, 24–25; ENDC/PV.430, at 19, 32; and CCD/PV. 432, at 12–13.
94 CCD/PV.473, at 21 and A/C.1/PV.1758, at 22; A/C.1/PV.1763, at 16.
95 Brown, , Arms Control in Hydrospace: Legal Aspects 67 (1971)Google Scholar
96 CCD/269, Article 1, para. 1.
97 Ibid., Article 2, para 1.
98 E.g. Argentina, CCD/PV.445, at 17–18.
99 E.g. Ethiopia, CCD/PV.444, at 41.
100 E.g. Ethiopia, CCD/PV.444, at 41 and the U.A.R., CCD/PV.445, at 37.
101 The same effect would have been produced by following the far simpler expedient suggested by the U.K. of putting the subject of article 1 into the singular rather than the plural, thus changing “The States Parties… undertake not to emplant… beyond the maximum contiguous zone” to; “Each State Party… undertakes not to emplant… beyond its maximum contiguous zone.” (CCD/PV.444, at 23–24, emphasis added). Neither formulation made provision for foreign state activities sanctioned by the coastal state. This was later incorporated by making the exemption apply “to the coastal state or to the seabed beneath its territorial waters”, CCD/269/Rev.2, at 2.
102 CCD/269/Rev. I, at 2, Article 1, para. 2.
103 A/C. I/997 and CCD/269/Rev.2, at 2.
104 Supra note 75.
105 Ibid.
106 CCD/PV.447, at 14. The words were Ambassador Ignatieff’s.
107 A/AC.I35/WG.1/SR.6, at 34; ENDC/228, and A/AC.135/24.
108 A/AG.I35/WG.1/SR.8, at 75; A/AC.135/WG.T/SR.10, at 94, 97.
109 A/C.1/PV.1596, at 37.
110 ENDC/PV.397, at 12.
111 ENDC/249; Article 3, para. 1.
112 ENDC/PV.424, at 15.
113 CCD/269, Article 3, para. 1.
114 ENDC/240, Article 2; and ENDC/PV.397, at 12.
115 ENDC/PV.410, at 8.
116 CCD/269, Article 3, para. 2.
117 ENDC/PV.413, at 6.
118 ENDC/264, at 2.
119 E.g. Roumania, CCD/PV.434, at 8–9.
120 ENDC/PV.424, at 14.
121 Ibid.
122 Ibid., at 14–15.
123 ENDC/PV.428, at 13 and ENDC/PV.430, at 34.
124 CCD/270.
125 ibid.
126 E.g. Italy, CCD/PV.441, at 12; Sweden, CCD/PV.443, at 9–10; India, CCD/PV.444, at 18; Ethiopia, CCD/PV.444, at 41–42; and Nigeria, CCD/ PV. 445, at 46.
127 CCD/PV.443, at 20–26.
128 E.g. Sweden, ENDC/PV.422, at 17–18; Brazil, ENDC/PV.423, at 27; India, ENDC/PV.428, at 13; and Nigeria, ENDC/PV.430 at 21.
129 CCD/269/Rev.1, Article 3, para. 3.
130 In Ambassador IgnatiefFs view, it did not even “give adequate recognition to a right which nations already have under the Charter,” CCD/PV.447, at 16.
131 E.g. Sweden, A/C.1/PV.1695, at 77; Italy, A/C.1/PV.1695, at 87; El Salvador, A/C.1/PV.1968, at 36; Spain, A/C.I/PV.1700, at 8-ro; Denmark, A/C.1/PV.1701, at 12; New Zealand, A/C.1/PV.1701, at 46–47; Cyprus, A/C.1/PV.1701, at 58; and Ghana, A/C.1/PV.1702, at 23–25.
132 A/C. 1/992.
133 A/C.1/PV.1704, at 18, 20–21.
134 A/C.i/993 and Rev. 1.
135 A/C.1/PV.1704, at 21.
136 CCD/PV.452, at 10; CCD/PV.454, at 16; and CCD/PV.455, at 9.
137 CCD/PV.460, at 6–9.
138 CCD/269/Rev.2, at 2–3.
139 CCD/297.
140 E.g. U.S.S.R., CCD/PV.476, at 22–23; and Bulgaria, CCD/PV.480, at 16–17.
141 CCD/26g/Rev.3, Article 3, para. 2.
142 E.g. France, A/C. 1/PV. 1754, at 21; Pakistan, A/C.1/PV.1754, at 57; Norway, A/C.1/PV.1755, at 28; and Madagascar, A/C.1/PV.1763, at 43.
143 A/C.1/PV.1758, at 23.
144 E.g. Peru, A/C.1/PV.1763, at 7; and Roumania, A/C.1/PV.1763, at 30.
145 A/C.1/L.528, at 2.
146 A/C.1/PV.1763, at 51–52.
147 CCD/26g/Rev.3, at 3.
148 E.g. U.S.S.R., CCD/PV.517, at 15–16, CCD/PV.532, at 5–10, CCD/PV.604, at 9–10, CCD/PV.638, at 23, and CCD/PV.639, at 13; Mongolia, CCD/ PV.501, at 6; Poland, CCD/PV.528, at 17–18 and CCD/PV.551, at 30; Sweden, CCD/PV.535, at 6, CCD/PV.620, at 9, and CCD/PV.633, at 13; Hungary, CCD/PV.542, at 32; and Czechoslovakia, CCD/PV.567, at 9–11.
149 “Cosmetic” only in the sense of not affecting the immediate military plans or ongoing programmes of the states concerned; this is not meant to depreciate the present treaty’s possible utility as a preventative measure.
150 See, for example, A/CONF.62/C.2/L.42 and Rev. 1.