REMARKS CONCERNING THE RECENTLY PUBLISHED STATE DEPARTMENT CHARTS (By Robert L. Hartig, Assistant Attorney General, Chief, Natural Resources Section, Department of Law)

Undoubtedly you have read in the papers of the recently published charts by the State Department which purport to establish the territorial limits of the United States.

I hope these articles have served to challenge your thinking and arouse your interest concerning what these charts, if taken as a permanent position by our federal government, would mean to our State. At stake for Alaska is the loss of vast amounts of potentially rich natural resource lands and areas of water which heretofore have always been assumed to be closed to foreign fishing.

In order to fully appreciate the effect these charts may have on our state, it might be helpful to discuss some terminology and international law methods by which territorial seas are measured.

For purposes of discussion, the navigable waters of the world can be divided into three parts. Measured from the coast outward they are: inland waters, the territorial waters or marginal sea and the high seas.

Inland waters are those waters directly adjacent to the land mass. They include inland bodies of water such as rivers and lakes, as well as bodies of water which open on the coast and meet the criteria of a true bay. A nation exercises complete legal sovereignty over its inland waters the same as it does over its land territory. This sovereignty extends to the complete exclusion of foreign vessels on these waters and to aircraft above the waters.

It is the delineation of this inland water boundary and the low-water mark along the coast that establishes automatically a country's seaward boundary. For it is from this limit line that the territorial or marginal sea is measured. The width of this claim to territorial waters varies from 3 miles to as much as 200 miles with the United States claiming 3 miles for its territorial jurisdiction.

The territorial sea of a nation is considered part of the national territory of that nation, however, the right of innocent passage by foreign vessels through these waters and by aircraft above them is recognized in peacetime.

Seaward from the territorial waters lie the "high seas." These waters are not subject to the sovereignty of any country. The freedom of passage on these waters and in the air space above them is a significant factor.

In order to determine the seaward extent of a country's claim to territorial waters, there must first be established the starting point or baseline from which the measurements begin.

Two of the most often mentioned methods of determining this baseline are: (1) an envelope or arcs of circle method, and (2) the straight baseline method. The United States now follows the envelope line or arcs of circles method which consists of a continuous series of intersecting arcs drawn from points along the coastline. The radius of the arcs drawn would be at a distance from the coastline equal to the marginal or territorial sea claimed by the nation. The straight baseline method consists of drawing lines (1) connecting outermost points along the coastline and (2) between offshore islands and reefs and the coast.

This method has its greatest application when a coastline is deeply indented or where the coastline is attended by many offshore islands and reefs which appear at low tide.

Alaska has urged our federal government to permit the application of this straight baseline method in measuring our coastline.

The straight baseline concept received international recognition and acceptance by the International Court in 1951 following a dispute between Norway and Great Britain. Norway, with its highly indented, irregular coastline, established a straight line connecting the outermost projections of lands as the baseline from which its territorial sea was to be measured. The International Court approved Norway's method, and, in 1958, the basic principle of straight baselines established in this case was adopted by the Convention of the Territorial Sea and Contiguous Zone. The United States is a signatory to this convention.

Recognizing the similarity of Alaska's coastline to that of Norway and the presence of the other criteria required, our Governor, in 1966, petitioned the federal government to permit the application of the straight baseline method to substantial portions of Alaska's coastline. In that year the Department of Natural Resources prepared a series of maps which accompanied an article proposing a boundary for Alaska.

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The following year Governor Walter J. Hickel and an advisory group met with personnel from the Departments of State, Interior and Defense in Washington. The purpose of the meeting was to encourage the adoption of the straight baseline concept for Alaska.

The State cited the problem of foreign fishing off Alaska's coasts and the need to clearly define the seaward boundaries. The physical similarity of Alaska's rugged coastline to Norway's coastline, and the State's economic dependence on its coastal fisheries were also emphasized.

You all recall that in the mid-sixties Governor Egan was forced to seize a Japanese fishing vessel in Shelikof Straits in order to protect this State's historic fishing rights from foreign invasion.

The Department of State in a letter to Governor Hickel, turned down the State's request, stating that "it is not in the national interest to use straight baselines at the present time." It further stated that "the conclusion is compelled by that fact that it is in the interest of the United States as a maritime and naval power to maintain the widest possible freedom of the seas and not by its example to encourage other nations to reduce to their sovereignty by the use of straight baselines large areas which would otherwise be high seas.'

To date some 60 nations have applied, to some degree, straight baselines for their coastline.

The United States has not, however, sought to apply the straight baseline concept even though it has recognized its application by other nations of the world.

Alaska's coastline measures over 2,000 miles. This comprises approximately thirty-eight percent of the total United States sea coast. A substantial portion of Alaska's coastline lends itself, under both the ruling of the Norweigian Fisheries case and the criteria set out in the Convention on the Territorial Sea and Contiguous Zone, to the application of the straight baseline concept.

In 1959 the Department of State, after recognizing the similarity of the southeast coast of Alaska with that of Norway, acknowledged the need to apply the straight baselines in Alaska. In a Department of State bulletin it was stated, "Along the coast of the continental United States-again excluding Alaska-no situation appears to exist which could be construed as requiring the use of straight baselines."

After having given some limited support to the use of straight baselines for Alaska, what caused the State Department in 1967 and again in 1971 to apparently reverse itself? I'll tell you why!

Congress, by virtue of the Submerged and Outer Continental Shelf Lands Acts, confirmed jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of the State's territorial boundary. It would not be advantageous to the Federal Government to permit Alaska to apply the straight baseline concept to its coastline because any additional territorial waters received by the State under this concept would be gained at the expense of the federal government and not of the world at large. In other words, for every inch of the continental shelf that the State would receive under the application of the straight baseline concept, it would deprive the federal government of the natural resources which they would otherwise develop themselves.

The federal government is very aware of this fact as reflected by a memo randum concerning Cook Inlet from a Coast Guard legal officer to his superior wherein he stated:

"At stake, of course, are the immense revenues to be derived from the exploitation of undersea oil reserves. This revenue goes to the coastal state if the oil is under the territorial sea, and to the federal government if it is under the continental shelf. The federal government, in order to press its claims to these resources, is placed in the rather incongruous position of having to attempt to limit its territorial waters to the barest minimum." The United States will argue that it has not changed its position concerning the breadth it claims for the territorial sea. This is true-the United States has always favored a three (3) mile limit for its territorial sea. What they have done is to publish (without consulting with any of our State officials) these charts which preclude the application of the straight baseline method for measuring Alaska's coastline. Further, by their action, they have declared areas of water heretofore considered territorial or inland as part of the contiguous zone or high seas and thereby opened them to foreign fishing.

Our Senator Stevens, who has been very active in this area, has also expressed his concern regarding these charts. He has announced that there will be interagency hearings concerning the application of these charts.

I encourage you to become informed and to support the administration's efforts to have the straight baseline concept apply in measuring Alaska's coastline.

(Gov. Keith Miller supports extension of U.S. jurisdiction to the edge of the true geologic continental shelf, as an important international debate with farreaching consequences for Alaska shapes up on sea-bed resource control.)

Man is a technical animal. His technology pushes him to new frontiers while his administrative, legal and social structures lag far behind.

Today men are drilling for oil offshore, in water depths to 1.399 ft. By 1975, industry calculates, men will have the capability of drilling in 3,000 ft. of water and by 1980, in 5,000 ft. The brand new discipline of ocean mining is in its infancy, but expected technical breakthroughs involving the tough problems facing the industry may soon see ocean miners dredging and digging the far reaches of the continental shelf for offshore placer and lode deposits.

The problem that has developed is, just who owns the sea floor?

The question was academic before men developed the means to probe the deep, but now that at least some of the technology is at hand, lack of clear-cut legal jurisdiction over offshore lands beyond the traditional 12-mile water limit may hinder the quest for fuels and minerals.

It's an international question with great consequences for Alaska, where the continental shelf stretches for hundreds of miles out to sea with potentially vast reserves of offsore oil and gas, oil-shale and metals.

Jurisdiction of outer-continental shelf lands is purely a federal question (as well as a United Nations question), since the state's jurisdiction stops three miles from shore.

But Alaska's Gov. Keith Miller is getting involved in the debate because Alaska, as the nearest coastal state to operations on the Alaska continental shelf, will be affected by any continental shelf development.

Miller's top state civil attorney, Asst. Attorney General Robert Hartig, is working on a draft "white paper" covering the state's position on the outer continental shelf debate. When finished, the governor will review the opinion and send it to President Richard Nixon.

THE BACKGROUND

Before the 1940's, few men cared about jurisdiction of the sea-bed because no one could get there. But when the first offshore drill bit churned down through offshore mud off Louisiana in the '40's, it struck nerves in governments around the world.

In 1945. President Harry Truman issued what is now considered to be a landmark proclamation. At the time, neither the nation or oil and gas industry took note.

Truman asserted that jurisdiction over the natural resources of the continental shelf by the contiguous nation, "is reasonable and just."

The "continental shelf" was defined to extend to a water depth of 200 meters, or 656 feet. This handy defintion was followed by many nations, although in geologic terms the continental shelf can extend far out into waters far deeper than 600 ft., before dropping off into the "abysmal deep".

Other nations followed the example of Truman's proclamation, but devised their own methods of defining the "continental shelf". Several Central and South American nations, as well as some in Asia, extended their jurisdiction out for 200 miles.

Conflicting jurisdiction claims didn't really affect the United States at that time, since the U.S. was bordered by two wide, deep oceans. The U.S. could claim as much as it wished, and few would protest.

But in other places, there were problems. In the North Sea, for instance, the sea-floor is all continental shelf between continental Europe and the British Isles. Many national claims over mineral resources of the North Sea were in conflict.

(Editor's Note: A similar conflict, surprisingly, may develop between the U.S. and Soviet Union over jurisdiction of the Bering Sea submerged lands, which are part of a continuous continental shelf between Alaska and Siberia. This has important implications for Alaska, also. See December, 1969's Alaska Construction & Oil. "The Case for a Continental Divide" by Editor Martin Loken.)