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Only a Robert Frost could see and describe so well both sides of a wall: “Something there is that doesn’t love a wall . .. ‘Good fences make good neighbors’ ” As restless man continues his invasion of the dark world on the continental shelf and beyond. both those who love a wall and those who do not will examine the existing legal walls beneath the sea and decide which, if amj>
shall stand, or be torn down, or be rebuilt-
of1*
back'
On both land and water, men have not been able to live without walls, boundaries, regulations, and other restrictions. The law of the land and of the sea is almost a chronicle of building walls, rebelling against them by tearing them down or letting them decay, and then replacing them with newer, stronger walls.
Legal walls regulating the use of the land, obviously, have evolved further and are more restrictive than those of the sea. The caveman’s bounds were the mountains surrounding his valley. Within their confines he could gather branches and leaves to construct a shelter wherever he wished, growl as loudly as he wanted to, build fires as large as he liked, walk wherever he chose, and throw stones at anything except a stronger neighbor. His freedom was nearly total. But, in the 20th century, urbanization has set limits on the free use of property. And, concrete, stone, and wooden walls are not the only barriers that hem in the urban man.
As the number of people increases, coupled with an increase in their productivity, there follows a need for more exacting regulation. Accordingly, the dwellers of large cities are forced to live within the framework of an incredibly more complex system of legal walls than are their country cousins.
Poet Robert Frost, for whom barriers held a fascination, expressed, perhaps unwittingly, a fundamental jurisprudential principle in his poem “Mending Wall.” He declared, “Before I built a wall I’d ask to know what I was walling in or walling out and to whom I was like to give offense.” Finding an answer to this question is a prerequisite to good law. When kings, jurists, and legislators have rushed ahead before finding an answer to this question, bad law has often resulted.
When two parties to a controversy—be they landsmen or seamen—are unable to reach agreement on their own, they come before a court of law for a solution. Or, « their difficulty is of such a continuing nature that a judicial solution would be inadequate then legislation is usually passed. Not infre' quently, judges and legislators will resoh'e such controversies by applying customary solutions which have evolved from simiW problems in the past.
On the other hand, when the controversy is unique, the judge will think long and har about how he tailors his judicial solution- If, at the outset, the judge feels that there is no “real controversy,” he will toss the par' ties and the case out of court. The judge the11 asks himself, “Can I reach a decision thatlS limited to providing a solution to the scope of the problem before me?” If not, he triest° narrow the problem down.
Finally, the judge asks himself, “Is my cision in this case likely to set a beneficial 0 detrimental precedent for future controvet sies which may be closely parallel or a^, alogous to the controversy before me- By whatever gifts of foresight he possess^ the judge thus tries to avoid establishing poor precedent. _ .
Legislators ask themselves similar questm “Is there enough of a problem to require ^ islative action? Would legislation solve problem or would the law merely be blun j ing into unknown, unpredictable areas human activity? Would the legislation u°' tentionally provide inflexible answers potentially complicated problems?” Legislators, in common with the rest do not like their cars—or their laws—to fire. And like judges and legislators, the lomats who draft and negotiate treaties also wary of going too far, of trying to se too much. eS-
Accordingly, when a judge’s decism'V^. tablishes a precedent which lasts for deca or when a statute continues to exist for )' ^ without substantial amendment; or a tre
The Walls Beneath the Sea 35
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remains in force and is adhered to by the Parties to it, one can be certain that the persons responsible for such laws paused before acting to think about what they were walling or walling out, and to whom they were like to give offense.”
Conversely, history is full of occasions "'herein the king, the parliament, the judge, °r the diplomats hastily built a legal Wall of Jericho which, inevitably, soon came tumbling down.
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Over the centuries the legal walls of the !ea have been built up, torn down and nriously reconstructed. The first such wall resulted from the Treaty of Tordesillas.
On 12 October 1492, Columbus planted the ag of Castile on an island he named San a vador, and stopped in Portugal before returning to his home port of Palos. The ortuguese King welcomed Columbus, dined rb) listened to the account of his adventure, after bidding him farewell, claimed that p lands discovered by Columbus lay in °rtuguese waters. This outraged Queen Jabella of Castile who jointly ruled Spain 1 h Ferdinand. Isabella and Ferdinand ap- med to Pope Alexander VI, who happened ]° ,e a Spaniard, and the Treaty of Tordesil- as in 1494 resulted.
of g terms °f rl16 Treaty called for a division . he entire world ocean, with Spain acquires all waters west of an imaginary line 370 j>agues west of the Cape Verde Islands, and ortugni taking what lay east of the line, he English and the Dutch were primarily first n^Me ^°r breaking down what was the
e entire world ocean. Each was rapidly be-
continued to claim. Until that time the Dutch ships used their guns only to defend themselves against Portuguese attacks. Then, one day, a bold Netherlands sea captain seized a treasure-laden Portuguese galleon in the Straits of Malacca. After the prize was brought back to Amsterdam, most of the Dutch prize crew, fearing punishment for piracy, left the ship, and many nervous members of the Dutch East India Company sold their shares. At this time it was thought best to consult a lawyer. Hugo Grotius was retained and, motivated by the promise of a share of the loot, he prepared his case. His brief was later published under the title De Jure Praedae (The Law of Prize) and one chapter of it was entitled Mare Liberum (The Freedom of the Seas). Grotius naturally won his case in the Admiralty Court at Amsterdam.
The Dutch were also developing a large fishing fleet and one of their favorite fishing grounds was off the Scottish coast. Mare
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\ng a significant maritime nation. The ^eld that the North Sea, and other Ion CrS Surrounding England, exclusively be- r: to them and that no one else had any
u0to claim any part of the ocean. It was res necessarY that England’s position with fist Ct t0 ^Pa*n or Portugal be logical or con- tr|oerlt;, fi°r England was developing a powerful a °f persuaders—privateers, pirates, and
Tit
gw e Dutch, too, were flexing their maritime - Sc es. In 1602, the Dutch East India Com-
tracp Was formed to attempt to expand Dutch lnS in the Indian Ocean, which Portugal
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Liberum was sufficiently broad in scope to include by implication the right of the Dutch fishermen to navigate and fish wherever they chose. Upon reading Grotius’ work, the English disagreed, and, thus, began the battle of the books. William Welwood attempted to rebut Grotius’ assertions in his Abridgement of All the Sea Laws, published in 1612. Grotius presented a counter rebuttal. The English then retained another great scholar, John Selden, to rebut Grotius’ counter rebuttal. The product of Selden’s work was entitled Mare Clausum, which was completed in 1617 or 1618, but not published until 1635.
Thus, several European sovereigns claimed large sections of the world ocean while concomitantly rejecting other sovereigns’ similar claims. Claims and counterclaims were defended by the eloquent words of their lawyers
and the inelegant deeds of their privateers.
Slowly, the European sovereigns began to recognize, first, that unless their claims could be supported by a superior force, they were meaningless; and, secondly, that the cost of achieving the superior force was becoming prohibitive. Too many ships were being l°st and the exorbitant price of insurance pre' miums was in danger of exceeding even a king’s ransom.
The next most logical step was to move the legal walls a few hundred miles closer to shorO' Cornelius van Bynkershoek, Judge of the Supreme Court of Appeals of Holland, 111 1737 first articulated what later came to bc known as the Cannon Shot Rule. This pr"1' ciple entailed recognizing the sea as free’ during time of peace, to all nations for naviga' tion, except for a belt of territorial waterS’ sea was as wide as the three-mile range existing cannon.
By the beginning of the 19th century courts of various nations had begun to acceP the Cannon Shot Rule as law and, by the en of the century, freedom of the seas was u’1* versally accepted. The legal walls dividing u ocean had been broken down and rec0'1
structed within sight of shore. j
At this time, the world ocean was regat principally as a two-dimensional high' ^ over which merchant shipping could j conducted toll-free and without fear pirates. The notable uses of the ocean w { involved its third dimension were the anc* art of fishing, which included wha the beginnings of ocean science, the w . of telegraph cables across the ocean s 0j
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In the late 1920s, oil was discovered "
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Government of the United States regards the natural resources of the subsoil and seabed of J-ne continental shelf beneath the high seas but contiguous to the coasts of the United ’tates as appertaining to the United States, subject to its jurisdiction and control.” Fishermen, and scientists as well, had come to recognize that the number of fish in the sea Vvas not infinite and, although the recognized rnle of international law at the time was that 3 J °f the high seas were open to fishermen of 1 nations, another declaration of President ^rurnan’s sought to modify that rule. A new j. ’ fishing wall, was about to be erected Either out to sea: “In view of the pressing reed for conservation and protection of fishery ^sources, the Government of the United a.tes regards it as proper to establish conservation zones in those areas of the high seas °fltiguous to the coasts of the United States fu Cre’n filing activities have been, or in the nre may be, developed and maintained on 0 substantial scale.”
or J1606 Was little doubt in the United States 0C sevyhere that, in an economic sense, the ^ an had a third very important dimension. VvorlrpV COndlct had begun to develop. The Cotr s navies and the merchant shipping a ^Fanies pushed hard towards the land sli 1I?st the three-mile wall to keep it from back out to sea, while the fishermen Sea^^tr°leum drillers tried to wrench it
si0na J^2, the International Law Commis- of: ° United Nations undertook a study
re§ard^at tbe ^3W WaS an<^ wbat 11 should be
1958 pn^ tbc sea- ^ts work culminated in the Sea ^neva Conventions on the Law of the Uiisg , tle f°ur Conventions were a compro- aew tetween well-established custom and On th/<'p<^S' bhc drafters of the Convention atteC Ferritorial Sea and Contiguous Zone sea aJ/tCC^ t0 Preserve the narrow territorial of tjje ’ although successful in codifying most Certfin VVCb established customary rules conits hr ^ vvere unable to reach agreement on ^tionslh- The overwhelming number of that} at °<:Prescnted at the conference agreed tto k C VerF most, the territorial sea could ^tates broader than 12 miles. The United several other nations, as is well ’ Maintained that the territorial sea
could not exceed three miles in breadth.
Several maritime nations, including the United States, have continued to argue for the narrow territorial sea. Such arguments are failing to draw support because the three- mile nations, in effect, declare that the traditional freedoms of the high seas must be preserved absolutely for all nations—except for fishing in restricted fishing zones and navigating in safety zones surrounding offshore fixed platforms and exploring or exploiting natural resources anywhere on the continental shelf.
But, the supposedly permanently fixed and impenetrable legal wall of the 19th-century, three-mile territorial sea is not the only wall. For example, several Latin American countries have erected their own to mark their self- designated, 200-mile-wide territorial sea.
There are other walls including the aforementioned fishing wall, nine miles out beyond the three-mile wall. But this latter wall, which also parallels the coastline, has holes in it. For all mariners may pass through this newly built legal wall located at the outer perimeter of the contiguous zone—except fishermen, marine geologists, rumrunners, and smugglers.
Still further out to sea the even more flimsy legal wall of the continental shelf is being constructed. Rather than following the architectural pattern of the vertical legal walls of the territorial sea and the restricted fisheries zone, the wall of the legal continental shelf is more like a cement floor. It begins on the ocean bottom at the base of the wall of the territorial sea and extends seaward along the geological continental shelf until the depth of the water above it reaches 200 meters. Yet, according to the Convention on the Continental Shelf, it extends “beyond that limit, to where the depth of superjacent waters admits of the exploitation of the natural resources of said areas.”
How far seaward might that be? Legal scholars have provided us with answers to this question. But, unfortunately, no two seem to agree. Some say no further than the geological continental slope, while others tell us that the legal continental shelf may extend out into the deep ocean until reaching the midpoint— for instance, the midpoint between the United States and the nearest nation oppo-
site it. Happily, industry has not yet developed a technology capable of providing the world with a test case.
The horizontal wall of the legal continental shelf also is quite porous. Through its several holes, persons authorized by the nation having jurisdiction over the shelf, may drill for oil, mine minerals, conduct marine geological research and carry out other such activities. No foreign nation, nor any of its citizens, by unilateral action may use the shelf of another nation for any of these purposes. Thus, the legal shelf walls out foreign exploiters of seabed resources.
But it does not wall out other potential interferences to the shelf’s owner. Legally, foreign submarines may rest on the shelf; foreign cable or pipe layers may lay cables or pipelines on the shelf; and foreign fishermen may fish for species which swim above the shelf unless that part of the shelf has been designated by the coastal nation as a restricted fisheries zone.
Furthermore, the horizontal shelf wall not only has holes in it, but it exhibits vertical protrusions as well. These are called safety zones. The Geneva Continental Shelf Convention stipulates that safety zones may be established around installations constructed on the shelf. The safety zones, by definition, are water columns, approximately 1,000 meters in diameter, which begin at the seabed and extend up through the ocean, penetrating the surface on all sides of the shelf installation. The Convention further specifies that “ships of all nationalities must respect these safety zones.” The form of respect was not mentioned in the Shelf Conventions.
In short, the body of law which applies to the new industrial development of the three-D ocean and its bottom, from the seaward side of the territorial sea to the deepest parts of the legal continental shelf, is still in a very early stage of evolution. This is because few major international or intranational conflicts have yet occurred in this area. Until such time, the legal rules governing man’s newer activities in the offshore ocean will necessarily remain loosely defined. The drafters of the 1958 Geneva Conventions, not knowing what the next few decades’ technology would produce, used rather imprecise wording in the provisions applying to less-predictable types
of conflicts which might evolve from the increasing industrial development of the continental shelf and ocean areas overlying it’ j This was purposely done for several reasons; one of which was to give the International Court of Justice, as well as coastal states themselves, sufficient opportunity to formulate meaningful interpretations.
The drafters of the 1958 Geneva Conventions, however, used very precise language it* their codifying the well-settled rules of la"' which, over many years, had evolved froi" more customary uses of the ocean.
Thus, it is understandable that the relati',e lack of conflicts stemming from newer ocea'1 technology has prevented interpretation 0 the intentionally more vague language 0 some of the Conventions’ provisions, to the extent that no one can be absolutely certain just what is being walled in or what is bein? walled out.
The 1958 Geneva Conventions, however insofar as they purport to establish the bas'c legal framework for regulating newer u5^’ of the three-dimensional ocean, have evoh'e to the point where we are at least beginni”' to become aware of to whom they are “*lK to give offense.”
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The people to whom the Geneva Conyea tion have given most offense were describe by one prominent commentator as “acoi"^ dians” (silly academicians), and by another y “missionaries for world order.” Their drea of scrapping present law as it applies to oceans and reformulating it in accorda'1 with their own dreams was mightily helpeC* a document entitled The Seventeenth (Annl,a Report oj the Commission to Study the Organize 1 of Peace, issued in May of 1966 from Commission’s New York City headqnad In short, the proposals contained in report call for immediate international ag ^ ment: (1) That no nation be permitted { appropriate the sea or seabeds beyond ■ 12-mile limit for fish or beyond the [ge°J^3t cal] continental shelf for minerals; (2) S the United Nations be given title to areas “beyond”; (3) That a United Natj Marine Resources Agency be establish0^ control and administer international ma,i resources; hold ownership rights; and leases, or use these rights in accordance
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economic efficiency; and (4) That the General Assembly should declare that the deep sea and die seabed must not be used by nations as an environment in which to install or operate Weapons, or for purposes intended to further research on potential weapons or their development.
The Commission’s report takes the position hat the four Geneva Conventions are passe. Without waiting for a reasonable test of the Undreds of thousands of man hours expended !n drafting, negotiating, amending, and ratify- lng the provisions of the 1958 Geneva Convener's, the Commission prefers simply to abandon them.
^The writers of the Seventeenth Annual ,ePort have succeeded in selling many of c'r ideas to officials of some U. N. countries, hd, these officials have adopted some or most to ^‘ornrnrssi°ns’ proposals, are attempting ^ enact them into international law; and ave Persuaded members of the press to PPort such measures.
^ °r instance, on 8 December 1966, the ' General Assembly adopted a U. S.- thcnsoreG resolution related to resources of q Sea. The resolution requests the Secretary tTneral of the United Nations, in co-opera- So ^ various international agencies as- 5r^ated with the U. N., to conduct a study lhcn formulate proposals which, in part, tiQ d bring about possible greater interna- ^hal legal control of high seas fisheries and The n bottom mineral resources development. hejn Pr°visions of the resolution are presently ?nd ^ Carr'ed out and may well be completed dm ^ukm'tted to the General Assembly in e or its 23rd session. feUrn February 1967, at InteCau and Consultative a'iss^G°Vernmental Oceanographic Com
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f0rn °f UNESCO the Soviet delegation a ^ a proposed that, within the I.O.C., ti0tlslnS group be created to draft conven- expi to govern scientific research on, and Sqo °rat'°n and exploitation of mineral re- \ Cs Ur>der the high seas. ti0ri tended version of the Soviet resolu- U57 as adopted by the I.O.C. in October ^Udy ^n<a a working group was created to 'flVoL C^ab questions
of the a resources.
related to scientific ocean, including its
In February 1967, a prominent U. S. Senator proposed that an international agreement should be formulated which would confer “title on the United Nations to mineral resources on the ocean floor beyond the continental shelf.” Several months later, another Senator sponsored two resolutions calling for U. N. control of deep seabed resources.
In the summer of 1967, a body of more than 2,000 lawyers met at the World Peace Through World Law Conference in Geneva. While not officially speaking for their native countries, they urged the U. N. General Assembly to assume “jurisdiction and control” over the mineral resources of the ocean bottom.
The New York Times of 7 August 1967 in an editorial titled “Riches of the Seabed” called the World Peace Conference proposal “attractive.” The editorial further commented that “such a move would ultimately make it possible for the U. N. to have its own independent income and to use for the benefit of all men and all nations riches that now belong to nobody and benefit nobody. And such a resolution of the issue would forever prevent submarine colonialism from threatening the world’s peace.”
On 18 August 1967, Malta proposed a resolution in the U.N. General Assembly which, in effect, calls for a creation of a multilateral treaty to adopt, almost literally, the recommendations of the Commission to Study the Organization of Peace, as expressed in its Seventeenth Annual Report, outlined above.
The Secretary General sent a note to the General Assembly on 31 October 1967 which requested that it authorize the U.N. Secretariat to prepare a “comprehensive report which would include a study of the legal framework which might be established for the deep sea resources, the administrative machinery which may be necessary for effec-, tive management and control, the possible system of licensing and various legal arrangements for redistributing and/or utilizing the funds which would be derived therefrom, including those earmarked for the benefit of the developing countries.”
In the interest of attaining at least a partially balanced approach to an analysis of these proposals, it would be well to consider, one by one, the pros and cons of the major arguments that have been advanced by pro-
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ponents of U. N. stewardship of the sea.
• U. N. ownership of the sea and seabed will forestall conflicts over “submarine colonialism.”
With the precedent for the possibility of international agreement concerning the world ocean reinforced by the successful creation of the four Geneva Conventions of 1958, it appears more probable that any near-future disagreements concerning the ocean bottom can be resolved by bilateral agreement or, at worst, by adjudication. For example, several North Sea countries entered into agreements with one another which delineate their mutual shelf boundaries. Even West Germany, which is not a party to the Geneva Shelf Convention, has agreed after months of unsuccessful negotiation to take her shelf dispute with the Netherlands and Denmark to the International Court of Justice. This handling of the division of the floor of the North Sea demonstrates the likelihood of continuing peaceful solutions to underwater real estate problems.
• Only ownership and administration by the United Nations can prevent leading technological nations from rapidly depleting the wealth of the entire seabed.
This argument assumes that leading technological nations have (1) the capability and (2) the intent to rob these resources. Both assumptions are disproved by fact: The
handful of firms around the world that are profitably engaged in exploiting hard minerals from the continental shelf are conducting operations in water no more than a feW hundred feet deep. The probability of a gigantic leap in ocean mining technology' from a capability to work the near shore shelf to the successful mining of the deep ocean basins, is remote. This conclusion is based not only on engineering realities but also upon obvious and inescapable economic realities-
Moreover, the fact that no leading maritime nation has claimed ownership or offered to lease ocean bottom areas very far beyond its geological shelf suggests a careful avoidance by the world’s coastal countries of entering into a race to grab submarine lands.
Furthermore, practically all existing ocean mining operations have been conducted b) companies, which, by the language of tbe coastal countries’ laws, are required first t0 obtain a prospecting permit or lease. Thu* ocean mining activities are presently 311 should continue to be within the legislate6 reach of the leasor country, and conservati0'1 measures may be enacted as they becorne necessary.
The argument that the coastal lcaS° country might be motivated more by incoine
gation to impose conservation measures certainly not defeated by placing the Umte Nations in the shoes of the world’s exclusn leasor of the ocean bottom.
• A U. N. Marine Resources Agency worn the most efficient management mechanism possibt •
There are over 139,405,000 square m> j of ocean surface. Most of this area would y, under the responsibility of the proposed E- Resources Agency. It is not hard to ima§ the minimum size of a bureaucracy 1 ^ enough to administer this area effect!
large a police force would be reclllirC^ed
inW
such a system, for years to come, would c tainly exceed the net economic yield. ^e.
But, it has been argued, the U. y. sources Agency need not pay its own ^ Rather, the leading maritime powers j perhaps a few lesser nations can be eX^tjve to contribute the services of adminis
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of the principal, i.e., the United Nans- But the United Nations, then, might be cused of authorizing its volunteer agent thelGS t0 ccobfOorize the oceans on behalf of e United Nations. The missionaries of ^ r o order, not surprisingly, have not yet Cen ahle to resolve this point. st * Military use of the deep ocean by sovereign s nust be prevented. The presumption is 8adl 3 militaT use °f the ocean is neces- tra y a hostile or aggressive use. On the con- Otar^'- dlC oohtary use of the oceans by all tiv UlInc oations is perhaps the most effec- hi^deterrent to any one of them committing ten • SCas aggression. The technological ex- S(J^Sl°n _ beyond that of the missile-carrying Wa 'Uarine t0 the use of the seabed itself is one l ln which a war-deterring capability may p lengthened.
Arn Urtbcrmore, the large budgets for research for leading naval powers provide funds c0ntnanV basic and applied research projects <:n>ng the ocean and its bottom. The S. such research, including significant fishecj • Cs Processed data, are often pub- ln Unclassified form and therefore made
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Personnel to handle the Agency’s paper work and the services of naval ships, weapons and Crews to act as U. N. policemen.
The possibility of this pay-now-W-later Plan coming into existence seems highly unlikely, particularly in view of the fact that contributing member nations would be deriving zero revenues under such an arrangement. Even the most altruistic of nations '''ould flinch at the prospect of a considerable °ss of potential revenues, and, at the same hme, have no way of estimating how high the Cost of this support might eventually run. ut, out-of-pocket money is one thing, and a legated defense is quite another. It should not be forgotten that U. N. ownership would nccessarily mean a complete demilitarization 0 the area. Even if sovereign states were to aSree to cease military activity in an area, how j,0ng could the promise be kept? How long, or example, could coastal nations contribute e services of their naval ships, weapons, and ?evvs without such ocean areas becoming in tQCt un-demilitarized? One solution might be consider the sovereign state’s “policeman” Activities as falling within the scope of a vol. tary agency relationship conducted on available to ocean scientists all over the world. Much of this research, now financed by naval budgets, is too costly for the majority of oceanographic institutions or private corporations individually to underwrite.
The implication that additional military involvement with the deep ocean bottom is inherently evil and bound to contribute to the development of a “new form of colonial warfare” is further refuted by projects like the U. S. Navy’s Deep Submergence Rescue Vehicle, designed for the humane task of rescuing personnel from disabled submarines. There is no reason why this, or similar vehicles, cannot easily be adapted to rescue the crews of disabled, deep-diving, nonmilitary submersibles in the future.
The civilian governments of leading maritime nations are aware that the law of the sea is too important to leave to the admirals alone. It is, therefore, doubtful that they would be willing to encourage exclusive military occupation of increasingly large areas of the deep ocean bottom. And also, as a matter of simple economics, the civilian governments realize that navies do not pay royalties for the use of ocean bottom property. Accordingly, the potential source of revenue to be gained by leasing areas of the seabed for industrial exploitation of natural resources should be sufficient motivation for governments to encourage continued commercial, as well as military and scientific, oceanic development.
• Unless title to the ocean and the seabed is vested in the United Nations there will be no effective method of preventing the danger of oceanic contamination by radioactive material, oil, pesticides, and poisons flushed into the sea by rivers.
Local governments do not need title to privately owned property to enforce sanitary regulations any more than the United Nations needs title to the ocean or its floor to effectively support programs designed to curb ocean pollution.
The disposal of nuclear wastes in the ocean and other related problems rests with the International Atomic Energy Agency, and the pollution of the ocean from oil leaking from ships is the responsibility of the Intergovernmental Maritime Consultative Organization. In short, there is an adequate basis in law and in existing institutions, both
to
will
associated with such leases, is reasonable
national and international, to cope effectively with ocean pollution problems.
• U. N. custodianship is a necessary prerequisite to establishing an effective conservation program for the seas' living resources.
Although the international law of high seas fisheries is far from adequate, many legal solutions to conservation problems have been and are being worked out by bilateral and regional agreements.
The fishing industry is old and its problems complex. Yet, like the industrial exploiters of the seabed’s minerals, fishermen are developing new technologies and new products. And similar to the neophyte miners of the continental shelf, the fishermen are not yet completely aware of the location and extent of the untapped potential resources of the sea. Accordingly, before the content of the world’s oceanic resources is fully known and a technology capable of exploiting them is produced, it would be not only impossible, but also injudicious, to attempt to establish a unified global system of conservation regulations to be administered by an agency of the United Nations.
Instead, a wiser policy would seem to be a gradual, carefully reasoned increase in the formulation of bilateral and multilateral fisheries treaties coupled with continuing advisory assistance in international fisheries problems rendered by such entities as the U. N. Food and Agricultural Organization.
• If sovereign states individually exploit the seabed, rather than under the supervision of the collective entity of the United Nations, then the technologically advanced nations will reap a disproportionately sizeable profit, while the underdeveloped nations will be denied an equitable share of the seas' wealth.
No one can deny that common justice demands that no coastal nation should be denied the opportunity to realize its fair share of seabed resources. That United Nations’ title to the ocean bottom is a necessary condition to achieving this objective is, however, highly doubtful. There is no evidence to indicate that technologically advanced nations intend to swoop in like pirates to ravish the minerals of the seabeds adjacent to the coasts of technologically under-developed nations. These latter countries may obtain insurance that they receive their fair share through legislative and administrative action alone.
A graduate of Pennsylvania State University in 1961 Mr- Stang served on the German Desk in the Department of State. After completing Naval O.C.S. in June 1962, he was assigned to OPNAV until his release from active duty in June 1965. Thereafter, he served as an aid to Congressman John V. Lindsay during his 1965 Mayorality Campaign. For the remainder of the year and during 1966, he was Special Assistant for Oceanographic Matters to Congressman Hastings Keith of Massachusetts. He has worked as a Consultant to Ocean Systems, Inc., an the National Planning Association, and has served as Associate Editor of a school law journal. He is now a Law Clerk to Judge Albert V. Bryan, U. S. Court o Appeals, 4th Circuit.
Even though the “have not” nations lac*1 the technology to exploit the wealth of dlCir continental shelves, and areas beyond, thcs countries can easily import the requisite tech nology. This can be, and is being, achieve by granting prospecting permits and leases t° foreign companies with the know-how conduct ocean mining operations. _
Whether the coastal states’ rate of taxation
be determined by the willingness of foreig' corporations to enter into such leasing agre® ments. Arrangements which provide sne derived income to coastal countries paid ^ foreign corporations, are already in existe in such countries as the Philippines, Austra New Zealand, South Africa, and ot^g If the coastal state wants the res (mean ^ the mineral resources) rather than, or as as, a portion of the tax income, it need o' specify this in its leasing regulations. A natively, the coastal state can contract foreign-owned ocean mining corporations* their governments, to do the mining for the*’ With the successful adoption of *nC°'oti- earning legislation pertaining to the c ^ nental shelf in an increasing number of c°jesS tries, including those technologically ^ advanced, it is doubtful that coastal conn will be willing to give away title to theseF tential resources to the United Nations, would be no quid pro quo in doing so.
• The now almost empty coffers of the Nations would be filled from the income
And
also
A Workable alternative to the double taxa- °u by the United Nations and the respective mber sovereign state of which the entre- neur is a citizen, would be for the member c to reduce or abolish its own taxation of
^ Profits of its oceanic entrepreneurs. The
Cou
s"ch • . . . .
1 a revenue losing proposition is highly
1 estionable.
»h;
If-then, ______________________________ 7
be,” shall be in charge of the black depths
h°m taxes and fees resulting from an ability to lease °ut the ocean and its bottom.
There is some doubt that member nations are prepared to grant the United Nations the taxing power and independent source of income that ocean mining leases or fishing Permits might realize. The hesitancy of some member nations merely to pay their annual dues indeed appears to be more related to Political reasons than penury.
Aside from purely political considerations alone, it is generally agreed that, although nshermen and exploiters of seabed minerals do occasionally make a profit, neither of them have yet really struck it rich. Nor is it ikely that the offshore oil and gas industries ''''ll profit much, if at all. Their resources, many geologists feel, are not located in eco- n°mically recoverable areas other than those °n the geological continental shelf or slope.
Thus, even if the governments of these ^itrepreneurs would be willing to give the mted Nations the power to tax, it is doubtful at the industries would be willing to bear it.
so a United Nations power to tax could turn out to be a power to discourage.
lngness of even the wealthiest member utries of the United Nations to agree to
n4eed, an underwater gold mine—or, for ffohi rnat^er) anY mine—will not become a mine until technology has advanced to mirf)0lnt where it can compete with dry-land ‘nS- Mining operations on the relatively to i0VV Continental shelf are just beginning s^lv^mne profitable ventures. Until the \v es are exploited, there is little reason to t0vv y about ocean miners starting to race arcl the great ocean abyss.
Who it is not to be the United Nations,
l,W * 111 i;iuugc Ul 111C UlclL-K ucpma
§ n<J the legal wall of the continental shelf? ^ic°Ille feel that this part of the seabed is and .>tnunis> be., the common property of all, accordingly, “no state has the unilateral
right to exercise its sovereign rights or its jurisdiction and control over minerals lying on or beneath the ocean floor beyond the Continental Shelf.” Others assert that the seabed and its resources are res nullius, “the property of no one, and therefore subject to capture and exploitation by anyone. ...”
It is this writer’s position that, for the time being, it doesn’t matter whether the ocean’s floor is called res communis or res nullius, or whether its status is left in doubt.
However, should the U. S. government, as a matter of national policy, be forced to choose between the two theories, it would seem to be wiser to support the res nullius view. For, if it adopted the res communis theory as accurately describing the status of the ocean bottom’s resources, it would be stopped from leasing any of this area for exploitation purposes without the acquiescence of all the world’s sovereign states. Nevertheless, it is not the more preferable theory which will ultimately determine the ocean floor’s legal status, but, more likely, the uses of the ocean bottom encouraged by the policies of the various sovereign coastal states, acting individually and in acquiescence to each other.
Our question then is what policy should presently be followed regarding the legal disposition of the deep ocean and its bottom? The answer is to be found in an unnecessarily ugly term called the status quo. This in reality means permitting a natural evolution of solutions to actual problems as they individually come to exist. It does not mean that concrete and inflexible legal answers should be presently provided for imagined and purely hypothetical questions concerning non-existent problems.
Several members of the U. S. House of Representatives, realizing that it would be best to first learn to use our seven league boots on the Continental Shelf before trying them out in the deep ocean abyss, have sponsored a resolution calling for the Congress to “memorialize the President to instruct American representatives of the United Nations to oppose any action at this time to vest control of the resources of the deep sea beyond the Continental Shelves of the United States.”
For the United States to adopt any other position at this time would be inconsistent with the public interest.