As it did for Lewis Carroll’s walrus, the time l has now come for us “to talk of many things.” It is time for those of us who are concerned with national defense, the sea, and Law of the Sea to talk of the many things that are affecting us now, and will affect us more with each passing year. Whether we are ship commanders, planners, lawyers, submariners, fishermen, oceanographers, industrialists, or private citizens, the time has come to analyze where we stand, or should stand, on the issue of “inner space.”
The term is used here to describe the vast areas of the deep oceans and deep ocean floor. Some prefer the terms “ocean space,” “hydro-space,” and “liquid space.” But, no matter what it is called—it is an extremely and increasingly important area.
What is the basis for this increased interest in the sea and this aura of growing concern over the law of the sea?
The great interest in exploiting the ocean floor was set in motion by the historic proclamation issued by President Harry S. Truman on 28 September 1945, in which he announced to the world that “the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.”
By this proclamation, 760,000 square miles of underwater land (including the continental shelf of Alaska) were acquired by the United States—an area almost three times the size of the state of Texas.
Along the coast of the United States, the continental shelf varies from the width of about one nautical mile off portions of California to 200 miles off Cape Cod. In the Gulf of Mexico, near the Texas-Louisiana border, it has a width of 120 miles.
The continental shelves of the world are estimated at approximately 10,500,000 square miles, roughly 18 per cent of the 58,000,000 square miles of present dry land areas and about 7.6 per cent of the total ocean areas of the world. The economic potential of this area is tremendous. While the stakes are high with respect to exploiting the resources of the continental shelves of the world in that these shelves are equal to almost one-fifth of the land area of the world, consider what the stakes will be when science and technology discover the ways and means of exploiting the deep ocean basins which are about 12 times the area of the continental shelves. The sheer magnitude of the area and its economic potential is indicative of the interest.
When we consider the submerged lands of the high seas and the law applicable thereto, it has been said that we are dealing in a “brand-new” area of international law, and that today we are in the same position that space law was 50 years ago when aviation was in its infancy.
This would appear to be the position taken by Doctor Athelstan Spilhaus, Dean, Institute of Technology, University of Minnesota, when he spoke at a U. S. Navy Symposium on Military Oceanography. Among other things he stated:
We need, for example, a new look at the law of the sea as it relates to the emerging exploitation of mineral resources, aquaculture, and all the uses of the sea to promote national economic well-being and strength.
This is perhaps one of the most important and difficult of the marine problems to be tackled. Somehow we must bridge the dichotomy of preserving the traditional international freedom of the seas and making investment in the exploitation of the oceans feasible. It’s an interesting thing that groups of distinguished lawyers were speculating and developing space law before the first Sputnik orbited; yet we merely whittle at the antiquated marine law when forced to by an item on the agenda of an International congress or a crisis. People who deal with the sea should sit down with distinguished lawyers with a view to a complete overhaul in the light of the imminent occupation and exploitation of the oceans. . .
At the other end of the scale is the position that we are not dealing in a new area of international law but in an area very adequately covered by the customary law of the sea.
I am inclined to side with the latter rather than the former. It is considered that there is a body of law of the sea, admittedly not complete, which can be drawn upon to provide the necessary basis for the exploration, use, and exploitation of our area of concern. I refer here to general principles of international law, and more specifically to the principle of freedom of the seas and the body of law pertaining to the continental shelf, however, I would be the first to admit that when we consider the mid-depths and the ocean floor beyond we have limited precedents to draw on.
While I agree that we need a new look at the law of the sea as it relates to the emerging exploitation of resources, I do disagree with Dr. Spilhaus’ comparison of the development of space law and law of the sea when he stated that “we merely whittle at the antiquated marine law when forced to by an item on the agenda of an international congress or a crisis.”
Can one say, for example, that the
International Load Line Convention
Convention on the Intergovernmental Consultative Organization
Safety of Life at Sea Convention
Regulations for Preventing Collisions at Sea
Convention on Assistance and Salvage at Sea
International Convention for Prevention of Pollution of the Sea by Oil
are mere whittling?
If so, one certainly could not refer to the accomplishments at Geneva in 1958 as “mere whittling.”
The 1958 and 1960 United Nations Conferences on Law of the Sea represented many years of hard work and no small amount of looking to the future. Very significant advances were made in the development as well as codification of the law of the sea.
At the United Nations Law of the Sea Conference held in Geneva early in 1958, agreement was reached on four significant conventions: Convention on the High Seas; Convention on the Territorial Sea and the Contiguous Zone; Convention on the Continental Shelf; and Convention on Fishing and Conservation of the Living Resources of the High Seas.
Each of the four conventions provided that it should enter into force 30 days after the deposit of the 22nd instrument of ratification or accession.
The United States deposited its ratifications to all four of the conventions in April 1961. The High Seas, Territorial Sea and Continental Shelf Conventions have entered into force. The High Seas Convention entered into force 30 September 1962. It now has 32 ratifications. The Continental Shelf Convention entered into force 10 June 1964. It now has 28 ratifications. The Territorial Sea Convention entered into force 10 September 1964. It now has 25 ratifications.
The Convention on Fishing and Conservation of the Living Resources of the High Seas has been ratified by only 18 states. When the Fishing Convention enters into force it will provide a comprehensive procedure under which states may adopt conservation measures and settle disputes.
The Convention on the Continental Shelf provides for the exercise by the coastal state of sovereign rights for purposes of exploration and exploitation of the natural resources of the seabed and sub-soil out to a depth of 200 meters (656 feet), or beyond to the limit of exploitability.
The convention defines natural resources in such a way as to include mineral and other non-living resources, and living resources such as oyster beds and pearl fisheries, but to exclude such crustaceans as shrimp. On the other hand, in the U. S. view, it includes the king crab.
This convention contains what we may say is the international law of the continental shelf. It states law which was developing prior to and codified at the 1958 Geneva Conference, rather than customary law previously existing.
On the other hand, the next two conventions are generally recognized by international lawyers throughout the world as representing codifications of laws which have been developed over a long period of time and which were accepted for the most part as a matter of custom by the nations of the world even before 1958.
The Convention on the High Seas defines the high seas and lists the activities which we regard as the principal freedoms of the high seas. They are: freedom of navigation, freedom of fishing, freedom to lay submarine cables and pipelines; and freedom to fly over the high seas. This convention also deals with a wide variety of other topics; such as, classes of ships, warships, other public vessels such as MSTS ships, and merchant ships; status of ships, which flag governs; safety at sea, penal jurisdiction in matters of collision; the duty to render assistance; the right of approach and identification that warships have in peacetime; the right of hot pursuit; and the problem of pollution of the high seas.
Finally, the Convention on the Territorial Seas and the Contiguous Zone defines the status of the territorial seas and provides a system for its delimitation, but it does not define a specific limit. The convention specifies the right of innocent passage, and it provides for a contiguous zone in which a coastal state may exercise the control necessary to prevent and punish infringement of its customs, fiscal, immigration or sanitary regulations.
It is true that, for the most part, the law of the sea has been developed in a leisurely fashion throughout the thousands of years that man has sailed the seas. But it continues to develop. It grows from repeated state practice, international agreements, decision of municipal and international courts, the opinion of publicists, etc. It will continue to grow. Perhaps the most significant recent development in the field of international law is the rapid evolution of the doctrine of the legal regime of the continental shelf. During the short period since World War II, contemporary international law relating to the continental shelf made a monumental stride from the unilateral proclamation of sovereignty by a single state, the United States, to the rather comprehensive statement of principles embodied in the Convention on the Continental Shelf agreed to by the delegates to the 1958 U. N. Conference on the Law of the Sea.
This convention finds its basis in recent state practice in which there had been general acquiescence by the community of states. In 1942, a treaty between the United Kingdom and Venezuela divided between the parties their rights to the submarine areas of the Gulf of Paria (the area between Trinidad and Venezuela). Since the Truman proclamation of September 1945, as previously mentioned, the United States has claimed and exercised jurisdiction and control over the natural resources of its continental shelf. By 1956 some 20 states had made similar claims. The Convention on the Continental Shelf converted this state practice into codified international law.
This is not to say, however, that the convention solved all of the problems. Article 1 defines the continental shelf as the sea bed and subsoil of the submarine areas adjacent to the coast but outside of the territorial sea to a depth of 200 meters (109 fathoms or 656 feet) or beyond that limit to the extent that the depth of the water admits the exploitation of the natural resources of the area. Although the convention recognizes in the coastal state sovereign rights for the purpose of exploring and exploiting the natural resources of the continental shelf, the legal status of superjacent waters as free high seas and of the air space above those waters is unaffected.
It is very significant that the conference looked to the future when the Continental Shelf Convention was adopted in making provision for technological advances which will inevitably admit exploitation beyond the 200- meter isobath. The definition provides alternative criteria for determining the outer limit of the shelf over which the coastal state may exercise sovereign rights. The first, a depth of 200 meters, provides a fixed legal limit of a state’s rights. The second alternative adopts the criterion of “exploitability” as the limit of the shelf over which sovereign rights may be exercised. Although the exploitability test does not satisfy the requirement of certainty, which is essential in any legal concept, it does have the advantage of flexibility and makes the convention applicable, without any alteration of the limit adopted, to future situations brought about by technological developments in the field of oceanic exploration. It is apparent, however, that the second alternative also raises problems for the future. We have at the present time the technological capability of economically exploring oil bearing strata in sea depths well beyond 600 feet. New floating vessel techniques also permit scientific exploration in depths greater than 12,000 feet. This raises the question of how far out in the submarine areas a coastal state may exercise sovereign rights over the natural resources. While the continental shelf doctrine is available, there is no usage available to establish definite limitations on the maximum scope of the doctrine. It is not clear whether traditional rules of international law will apply to areas far offshore or whether the continental shelf doctrine will be confined to a certain limit offshore. In the opinion of this writer, however, the use of the phrase “adjacent to the coast” in the definition of the continental shelf certainly offers strong argument against application of the Continental Shelf doctrine to areas far offshore. A decision in this regard is one that will have to be made in the near future because it is an economic fact of life that large expenditures are not going to be made by private industry unless there exists some measure of protection of the investment. This leads us to our primary area of concern— inner space.
Figures show that salt water covers 71 per cent of our planet, that 88 per cent of the oceans are 12,000 feet or deeper, that the bottom slopes rapidly at the edge of the continental shelf, falling precipitously from 600 feet to 12,000 feet and then breaks more gently to the ocean floor to depths up to 36,000 feet. Contrast with the magnitude of these depths the fact that we are able to operate today only within the first few hundred feet and it is apparent that to date man has been comparatively unsuccessful in conquering and subjecting to his use the ocean depths. Man still measures his sea depths conquests and use in terms of feet when he is confronted with miles.
But we are making progress. The successful exploitation of the oil resources of the continental shelf; the discovery of manganese on the bed of the sea leading to serious work on surface mining of the sea bottom; the development of the nuclear-powered submarine and the Polaris missile which can be launched from the depths of the sea; the successful extraction of salt, fresh water, and sea weed from the sea; and the possibility of farming the oceans both for plants and fisheries resources all point up the importance of the area. The seas offer us military, recreational, educational, economic, artistic, and intellectual outlets of unlimited scope. In the words of Dr. Spilhaus, “they offer us more space than space itself in which to remain human.” Truly, the great depths of the sea—beautiful, elegant, strong, dangerous, and whimsical— may be called a New Frontier with great economic and military potential. The obvious concern (the concern expressed by Dr. Spilhaus as well as others*) is whether the law is keeping up with technology so as to protect those advances from the depredations of others.
In the words of Justice Benjamin N. Cardozo:
Existing rules and principles can give us our present locations, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow.
In the area of the unexplored deep ocean floor we are perhaps discussing “brand new” international law. At the very least, it is a controversial area and one in which we do not have customary practice to draw on.
As far as international law is concerned, questions might be raised along the following lines. Do we extend the continental shelf doctrine out? Do we treat the area as a no- man’s-land or as the common property of all nations? Or do we do a little of both? With respect to the legal position of the bed of the high seas, it would seem that a distinction might be drawn between the bed of the sea and its subsoil. Publicists are not in accord. With respect to the bed of the sea, the better opinion may be that it is incapable of occupation by any state, and that its legal status is the same as that of the waters above it. The same reasons for maintaining high seas unappropriated in the interests of freedom of navigation would seem to apply with equal force to the bed of the sea. On the other hand, the subsoil under the bed of the sea might be considered capable of occupation. There is perhaps less reason for extending the doctrine of freedom of the seas to the subsoil beneath its bed.
From a military point of view it may be in our best interest with respect to the bed of the sea to follow those who insist that we apply the doctrine of freedom of the seas and that there is no distinction in international law between the legal status of the high seas and the subjacent seabed. When it comes to navigation of submarines we certainly are interested in free seas. When we have deep submersibles that will transit the bottoms by crawling, or by partial physical contact with the bottom, we may also be interested in free navigation of the ocean floor. On the other hand, there will be those who will advocate the adoption of the doctrine that these areas are capable of being appropriated by the first occupier. With the advent of “fish-farms” (fish herding by means of electric fences or bubble barriers), mining operations, and oil exploitation of the deep ocean floor, it is inevitable that there will be those who will, in the interest of developing the resources of the sea, seek state protection of areas capable of exploitation. This may lead to claims of outright ownership of the deep ocean floor.
The principal legal problem that we face in the regime of the deep oceans is basically one of conflict and competition: conflict of users or potential users and competition within and between industries. As history repeats itself, what we will be concerned with first, I believe, will be more a problem of regulation of the domestic and international competition in important industries than a problem of the international law of the sea, i.e., we will have to resolve differences and conflicts within and between our own fisheries, mining, oil, and other industries.
Throughout history the interactions of nations at sea have produced conflicts. Preferably, solution of these conflicts has been through accommodation. One of the oldest conflicts resolved by accommodation involves two of the principal freedoms of the sea, the freedom to fish and the freedom to lay submarine cables and pipelines. One of the most recent accommodations between users has been the exploitation of submarine oil resources of the continental shelf, and the freedoms of navigation and fishing.
With respect to the problem of conflicts of users and the development of international law, Professors My res S. McDougal and William T. Burke in their recent text on the contemporary law of the sea state:
The most general desiderata are for reasonable protection of all uses, permitting the greatest possible intensity of each productive activity consonant with the effective and fair operation of each. For example, it would be both unfair and lacking in economy to demand that no cables be laid in an area because some interference with fishing trawlers might occur. On the other hand, it would not be desirable to forclose all possibility of mineral exploitation in an area because of the prior location of a cable. Identification of the factors relevant to appropriate accommodation between various future ocean uses, involving operations in submarine areas, must await future developments. Though we cannot offer specification of details about what is reasonable for particular instances of accommodation of such future uses, we can indicate the preference that accommodation be sought by means of inclusive agreement rather than exclusive fiat. Indeed, unless inclusivity is given very heavy weight and exclusive disposition of conflicts rejected, the prospects of accommodation and, ultimately, of productive use cannot be hopeful.
The key point here is that the process of accommodation must await future developments. Unless and until a clear line of conflict is drawn, it is premature to attempt to lay out binding rules by international agreement. Out of the resolution of conflicts will come the orderly development of the international law of the sea through processes of custom, tradition, and agreement.
This is not to infer that we should stand idle. We must be prepared for the future conflicts. The future conflicts may take the form of a great “land grab” which would not be in our over-all best interests. We of the Navy should, as a minimum, be considering what is in our own long term best interests, so that we will be prepared to do battle when the time rolls around to “talk of many things.”
* See W. J. Cromie, “Who Will Own the Ocean’s Wealth?” U. S. Naval Institute Proceedings, January 1965, pp. 52-61.