THE LAW OF THE SEA CONFERENCE A CRITICAL POINT FOR MAN AND THE OCEANS
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The Law of `
""~^ `'~ SCor?rAnce
A Critical Point-`for Man and the Oceans
by Miriam: L. `severing, Secretary
OCEAN EDUCATION PROJECT
DEC 1973
WHAT IS AT STAKE IN TAE COMING LAW OF TBE SEA CONFERENCE?
Who shall on the oceans? Shall the,-trillions of dollars worth of ocean oil,
hard minerals,. and fish largely go to"the rich and technically capable or be
shared equitably with developing countries?
Will reasonable freedom of ocean use-for ships and planes, scientific research
and enjoyment continue, or be restricted by national whims?
Will fish and other living creatures be wiped out by huge factory ships? Will
the ocean environment continue to be degraded by oil, chemicals, and wastes?
Will the oceans be fought over, as land areas have been in past centuries, or
will the Law of the Sea Conference create clear law and effective institutions
for peaceful, rational, and just management of two thirds-'of the world's surface?
FIRST, A FEW FACTS
Up to fifty years ago, ocean uses were largely shipping and fishing. There was
plenty of room forships?and. only ocean mammals and fish spawning in fresh water
streams, such as salmon, were seriously-threatened. Pollution of the vast oceans
seemed minor. Therefore, Grotius' law of the sea, which allowed nations a territor-
ial sea of three miles from shore, with freedom of the high seas beyond, was gen:
erally acceptable.
Industrialization; heaped up knowledge of ocean resources and modern.technology to
exploit them have brought new and enlarged ocean uses. 18% of the world's petro-
leum now comes from the seabed, and its estimated 2200'billion barrels are the
largest future oil potential.
The estimated 18 billion dollar annual fish catch constitutes an important part
of the world's scarce protein, but some fish stocks already have been wiped out by
overfishing, and others are threatened. The estimated one and a half trillion tons
of manganese nodules contain nickel, copper, and cobalt, soon a%ailabie, and vital
as land based ores are used up. Vast wealth, but who owns it?
Organic chemicals, heavy metals, oil, and wastes already making some semi-enclosed
seas such as the Baltic uninhabitable for some living creatures, are also making
it rough for ocean life far from pollution sources.
All these changes have brought expanded national. claims to ocean wealth, as well
as stirring up other urgent problems for mankind. Grotius'law of the sea is now
neither adequate nor acceptable.
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Since 1967, when Ambassador Arvid Pardo of Malta alerted the United Nations, the
Seabed committee has been preparing for the third UN Law of the Sea Conference
with substantive sessions scheduled for Caracas, Venezuela June-August,?.197L.. In part,
this Conference is made necessary by the failure of the previous two in 1958 and
1960 to settle how far from shore, both of water and seabed, the coastal nation
owns and controls,
1. The width of the territorial.sea,.i.n the past, 3 miles, could be changed to twelve
if free t-^ansit is guaranteed in the many international straits wider than 6 miles.
Otherwise, for example, Spain and Morocco could deny passage through the straits
of Gibraltar.
2. An economic zone, under coastal state management beyond the territorial sea.
zone from 12 to 200-miles may be agreed on, if. international community rights
such as freedom of navigation, pollution standards, etc. are recognized within
this zone.
3. An international area, beyond the economic zone, managed by an''International
Ocean (or Seabed) Authority is possible if agreement can be reached on its powers
and how it is to be controlled.
Li.. Standards and agreements on preventing ocean pollution. The nations may
assume some obligations concerning land based pollution, while the International
Maritime Consultative Organization continues to regulate ship based pollution.
The real issues lie.deeper, although partly expressed through those above.
First, given the diverse and conflicting positions, will there be any agreement?
The alternative is conflict and anarchy at sea.
Second, what will happen to "the common heritage"? In 1970, the United Nations
unanimously adopted a declaration that seabed resources beyond national jurisdiction.
are the common heritage of mankind, to be governed by an International Authority,
with revenues to be used for international. community purposes, and particularly
for developing nations. A central issue is whether this is-one more pious phrase,
or whether the UN Law of the. Sea Conference will really implement this.
Will the "common heritage" of vast mineral wealth, abundant living resources, purity
of ocean water, freedom for scientific research, technological mastery, and the
joy and beauty of the sea be preserved and carefully used for the benefit of all
mankind?
Or will it be "ripped off" by the geographically fortunate coastal nations and
those. technically capable, thus widening the tragic gap between rich and poor nations?
Will this exploitation be accompanied by-interference with ocean commerce and
scientific research, a wipeout of fish, and unchecked pollution?
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Third, Will `fhi.s. Great but Fleeting Opuorti ni .y Be Grasped? The oceans enfold avast
amount of wealth, not yet owned by nations. Will this opportunity for equitable
sharing of revenue, especially for developing countries,be implemented?
The protection of ocean environment can be advanced by actions of the-Law of the Sea
Conference. Will this slip away?
When has there been such an opportunity to strengthen world community by agreements
felt to be just by. developing countries, in which they have a share.in.the control
and operation of ocean enterprises,,, and majority decision in spending the money?
Will the nations at Caracas "blow" this?.?
The oceans represent the one area in which,major progress toward effective internat-
tional organization and the world rule ofjust law is now possible.-An International
Ocean (or Seabed) Authority, with its own,--dependable revenue (from leases and roy-
alties),-,:eaceful enforcement,:. and acceptable control (neither veto nor one-nation
one vote) could gain experience and establish precedents-for other problems that plague
planet Earth. Disarmament, food, scarce resources, environment,--all cry out for
global management.-Will this opportunity be grasped to move toward world order?
With every.passing day, coastal states and modern technology are creeping out and
ripping off the wealth of the sea. Fish are not increasing, and pollution is not
going away. Effective controls cannot lag.., For some goals, it is soon or never.
UNITED STATES OCEAN POLICE
The United States is the leading maritime nation, with capital an:'advanced ocean
technology, and most varied and far flung ocean interests. As in other countries, there
is an internal struggle between narrow, immediate economic gain and broader long
term self interest and responsibilities as a good neighbor in the.world community.
In our judgment, U.S.,Law of the Sea proposals, 1970 to date, belong with those which
are generally wise and far sighted. They recognize that the real. interests of the
U. S. in use of the oceans for commerce and navigation, peace and world order, justice,
availability of needed resources, and protection of ocean life are the same as those
of mankind. These proposals have wide support from the President. and most Executive
Departments, by resolutions adopted by both Houses of Congress, and by a wide private
spectrum of industry and environmental and other public interest organizations.
But some forces within the administration have decided that from an economic viewpoint
the U. S. should claim all seabed resources out to the continental margin. This
conflicts with present U. S. proposals for substantial revenue sharing, particularly
for developing countries, beyond 200 meters depth.
They have also decided that from an economic standpoint, there is no need for an
International Seabed Resources Authority, and that American industry should
be free to exploit deep seabed resources, with little regulation. This
conflicts with U.N. action. calling for governance of this area by an
International Authority, and with consistent U. S. support of such a body.
Some U. S. companies and their friends in Congress urge immediate mining of
the manganese nodules lying on the deep ocean floor without waiting for a UN
agreement. This would conflict with present U. S. policy, threaten the Law of the Sea,
and take resources most nations don't consider ours. It could dama. i., copper and nickel
producers such as Zambia, Zaire, Canada as well.
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If U. S. policy were reversed to reflect ;these views, in our judgment, the concept of
the common heritage would be largely destroyed, and the real interests of the U. S.,
and of mankind generally, would suffer irretrievably. The coming Law of,the Sea
Conference might well be a fiasco.
Policies of some other nations reflect what appears to be a misguided judgment
of their national interests. This is particularly true of coastal nations,
both developing and developed. An exclusive economic zone out to 200 miles is
popular even though.most coastal nations would fare better under a system based
on substantial revenue sharing.
A 200 mile exclusive 'economic zone, even around small islands and with long, in-
clusive baselines,. accompanied by large ocean areas made territorial seas by
"the archipelago principle" would give coastal nations over seventy percent
of ocean territory and almost all of its vast wealth. The biggest gainers would
be developed nations with long coastlines and colonial or island possessions.
The United States, the Soviet Union, the United Kingdom, Canada, Australia,
France, Portugal, Japan and Denmark would end up with over half of the oceans'
resources. Other gainers would be Indonesia, Brazil, Mexico, Argentina, and
the Philippines. The 100 plus remaining nations, except a few, chiefly those
with rich offshore oil deposits, would be losers.
Such an "ocean colonial period" would widen the gap between rich and poor peoples.
It might well endanger the free use of the oceans by ship and plane, and for
enjoyment and scientific research. It would give inadequate protection to ocean
life and environment.
GOALS FOR THE LAW OF THE SEA CONFERENCE
A. Agreement by the end of 1975 on a new, just law of the sea.` The alternative
is dangerous, destructive, and "devil take the hindmost" ocean anarchy.
B. The agreement must not only be fair to developing nations, but must be viewed
by them as fair and just. Equity requires that they receive more than an equal
share from ocean resources, since developed nations have received more than an equal
share from land based resources.
1. There should be a contribution of a substantial share of lease and
royalty revenues from the coastal zones off developed countries for
international community purposes, and especially for developing nations.
2. It is important to manage the resources development of the deep oceans
so that substantial revenues shall go to developing countries, and
so that needed resources are available.
C. The agreement should establish a strong ocean authority, One good example
is worth a thousand arguments for world order.
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D. The a, must:, not ne -?e.ct the pz ' ? ?.i: n of tbs, ace. r _: ri onra~ent. it
should (1) establish control by the International Ocean Authority over pollution
from exploitation of resources in the deep oceans. (2) Set agreed standards
for control of land based sources of marine pollution (3) Provide that some
money from the fund for international community purposes be used for marine en-
vironmental research.: It could also be used to help developing nations indus-
trialize with minimum damage to the environment. (4) Require environmental
impact statements to be submitted by nations or others proposing actions which
would alter the marine environment. (5),provide means to enforce the
international conventions prohibiting dumping in the oceans of toxic or other
harmful materials.
E. The agreement should preserve the freedom of the seas.for navigation,
scientific' research, and enjoyment.
F. The agreement should provide for effective conservation of fish and
other marine life.-
G. The agreement should protect international community rights,in any
economic zone managed by coastal nations,,to protect other ocean uses;
protect the ocean environment; share revenue with the international
community; provide compulsory settlement of disputes; and bring im-
partial third party judgment to bear in cases involving investors and
coastal nations.
WHAT ARE THE PROSPECTS?
A just and effective ocean treaty can emerge from the Law of the Sea Conference
meeting in Caracas in 1974, and pro babl,y in Vienna in 1975
But unless the U. S. delegation provides positive leadership toward an agreement
that is seen by developing nations to be fair and equitable, this is unlikely.
Unless some major developed nations with rich coastal zones take similar positions,
agreement also is unlikely.
Finally, unless a number of developing nations also rise above what they now appear
to consider to be their national interests, a just and effective ocean, treaty
probably will not happen.
THERE IS WORK TO DO
United States citizens need to thank their government for its enlightened policy
so far, and see that its many strong points are not reversed. They also should
urge flexibility, particularly on the organization and powers of the International
Seabed Authority, to meet legitimate objections by developing nations.
Citizens of coastal nations need to decide what their national interests
really are, and to urge their governments to further their broad, long term interests.
Citizens of all countries need to impress upon their governments the importance of
grasping this opportunity to protect and use the oceans as "the common heritage of
mankind". A few people make ocean policy. A few people can make a difference.
If this happens in enough countries, the Conference can take "a giant step" for man.
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FOR FURS READING
T e Un%t'ed Nation and the Oceans, Louis B. Sonia; Commission to Study the Or. riln
of Peace, 6 UN Plaza, New York 10017 $1.50 June, 1973
Mangone, Gerard J.The United Nations, International Law, and the Bed of the Seas;
Washington, D. C.: Woodrow Wilson International Center for Schol..rss, Ocean Series 303,
January, 1972 81.00
To.Help Determine Your Nation's Offshore Minerals
Lewis, A. Barton, A Quantitative Comparison of Economic Zone Proposals,.Ocean Education
Project, 2L5 Ind St. N.E., Washington, D. C. 20002 50 cents
Suimnary Petroleum and Selected Mineral Statistics For 120 Countries, Including Offshore
Areas Geological Survey Professional.Paper d17 U. S. Department of the Interior
U. S. Government Printing Office
Economic Significance, In Terms of Sea Bed Mineral Resources, Of the Various Limits
Proposed for National Jurisdiction Report of the UST Secretary General A AC.138/87
Kanenas: Wide Limits and "Equitable" Distribution of Seabed Resources, Ocean Develoament
ntaa ation.i Lga Jam, 1973 Vol 1 Number 2, Crane, Russak & Company, Inc.
Brief Material Available from Ocean Education Project
Gerstle, Margaret L.. Background on Existing Law of the Sea and Seabed 25o
Shapley, Deborah, Ocean Technology: Race to Seabed Wealth Disturbs More Than Fish,
reprint from Science Magazine 25 May 1973 100
Anderson, Alan, Chaos at Sea reprint from Saturday Review World 11/6/73 100
includes interview with Arvid Pardo
U. S. Committee for the Oceans, The Manganese Nodule: What Is It? Why the Flap? 100
Schwebel, Stephen M, Who Shall Control the Seas andFor What Purposes? Reprint
from the Washington Post, November 6, 100,
Fischer, William F., Jr and Allen C. Whose Oceans? 100
Pardo, Arvid Address to the American Oceanic Organization; Reprinted by Senator Lee
Metcalf in the Congressional Record, November 9, 1973 entitled, The Man Who Started
It Ally
Please send stamped self addressed envelopes. Quantity prices available on request
OCEAN EDUCATION PROJECT
a .&NONE-
245 Second SA JQV WFFirOr keae 2003403/(O4):5OIA4RDP?O8 4NRW@M 2Oe02
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Appendix D
List of Subjects and Issues Relating to the Law of the Sea
Approved by the U.N. Seabed Committee
On August 18, 1972
1. International regime for the sea-bed
and, the ocean floor beyond national
jurisdiction
1.1 Nature and characteristics
1.2 International machinery:
structure, functions, powers
1.3 Economic implications
1.4 Equitable sharing of benefits
bearing in mind the special
interests and needs of the de.-
veloping countries, whether
coastal or landlocked
1:5 ? "definition and limits of the
aria f'
1.6 Use exclusively, for peaceful
purposes
2. Territorial sea
2.1 Nature and characteristics,
including. the question of the
unity or plurality of regimes
in the territorial sea
2.2 Historic waters
2.3 Limits
2,3.1 Question of the delimitation
of the territorial sea; various
aspects involved
2.3.2 Breadth of the territorial sea,
Global or regional criteria.
Open seas and oceans, semi-
closed seas and enclosed
seas
2.4 Innocent passage in the terri-
torial sea
2.5 Freedom of navigation and
overflight resulting .from the
question `of plurality of re-
gimes in the territorial sea
U.N. Doc. Supp. No. 21 (A/8721, pp. 4-8).
t To be considered in the light of the procedural
agreement as set out in paragraph 22 of the report
of the Gomtnittee (Official records of the General
Assembly, Twenty-Sixth Session, Supplement No.
21 fA/84211).
3. Contiguous zone
3.1
3.2
3.3
Nature and characteristics
Limits
Rights of coastal States with
regard to national security,
customs and fiscal control,
sanitation and immigration
regulations
Straits used for international naviga-
tion
4.1 I?finocent passage
4.2 'Other related matters includ-
fng the question of'the right
of transit'
Continental shelf
5.1 Nature and scope of the sov-
5.2
5.3
5.4
5.5
5.6
ereign rights of coastal States
over the continental shelf.
Duties of States
Outer limit of the continental
shelf: applicable criteria
Question of the delimitation
between States; various as-
pects involved
Natural resources of the con-
tinental shelf
Regime for waters superja-
cent to the continental shelf
Scientific research
6. Exclusive economic zone beyond the
territorial sea
6.1
6.2
6.3
Nature and characteristics,
including rights and jurisdic-
tion of coastal States in rela-
tion to resources, pollution
control`' and scientific re-
search' in the zone. Duties of
States
Resources of the zone
Freedom of navigation and
overflight
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6.4 Regional arrangements
6.5 Limits: applicable criteria
6.6 Fisheries
6.6.1 Exclusive fishery zone
6.6.2 Preferential rights of coastal
States
6.6.3 Management and conserva-
tion
6.6.4 Protection of coastal States'
fisheries in enclosed and
semi-enclosed seas
6.6.5 Regime of islands under for-
eign domination and control
in relation to zones of ex-
clusive fishing jurisdiction
6.7 Sea-bed within national juris-
diction
6.7.1 Nature and characteristics
6.7.2 Delineation between adja-
cent and opposite States
6.7.3 Sovereign rights over natural
resources
6.7.4 Limits: applicable criteria
6.8 Prevention and control of pol-
lution and other hazards to
the marine environment
6.8.1 Rights and responsibilities of
coastal States
6.9 Scientific research
7. Coastal State preferential rights or
other non-exclusive jurisdiction over
resources beyond the territorial sea
7.1 Nature, scope and character-
istics
7.2 Sea-bed resources
7.3 Fisheries
7.4 Prevention and control of pol-
lution and other hazards to
the marine environment
7.5 International co-operation in
the study and rational exploi-
tation of marine resources
7.6 Settlement of disputes
7.7 Other rights and obligations
8. High seas
8.1 Nature and characteristics
8.2 Rights and duties of States
8.3 Question of the freedoms of
54
the high seas and their regu-
lation
8.4 Management and conserva-
tion of living resources
8.5 Slavery, piracy, drugs
8.6 Hot pursuit
9. Land-locked countries
9.1 General Principles of the Law
of the Sea concerning the
land-locked countries
9.2 Rights and interests of land-
locked countries
9.2.1 Free access to and from the
sea: freedom of transit,
means and facilities for trans-
port and communications
9.2.2 Equality of treatment in the
ports of transit States
9.2.3 Free -access to the interna-
tional sea-bed area beyond
national jurisdiction
9.2.4 Participation in the interna-
tional regime, including the
machinery and the equitable
sharing in the benefits of the
area
9.3 Particular interests and needs
of developing land-locked
countries in the international
regime
9.4 Rights and interests of land-
locked countries in regard to
living resources of the sea
10. Rights and. interests of shelf-locked
States and States with narrow
shelves or short coastlines
10.1 International regime
10.2 Fisheries
10.3 Special interests and needs
of developing shelf-locked
States and States with nar-
row shelves or short coast-
lines
10.4 Free access to and from the
high seas
11. Rights and interests of States with
broad shelves
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12. Preservation of the marine environ-
ment
12.1 Sources of pollution and oth-
er hazards and measures to
combat them
12.2 Measures to preserve the eco-
logical balance of the marine
environment
12.3 Responsibility and liability
for damage to the marine en-
vironment and to the coastal
State
12.4 Rights and duties of coastal
States
12.5 International cooperation
13. Scientific research
13.1 Nature, characteristics and
objectives of scientific re-
search of the oceans
13.2 Access to scientific informa-
tion
13.3 International cooperation
14. Development and transfer of tech-
nology
14.1 Development of technologi-
cal capabilities of developing
countries
14.1.1 Sharing of knowledge and
technology between devel-
oped and developing coun-
tries
14.1.2 Training of personnel from
developing countries
14.1.3 Transfer of technology to de-
veloping countries
15. Regional arrangements
16. Archipelagos
17. Enclosed and semi-enclosed seas
18. Artificial islands and installations
19. Regime of islands :
(a) Islands under colonial depen-
dence or foreign domination or
control;
(b) Other related matters
20. Responsibility and liability for dam-
age resulting from the use of the
marine environment
21. Settlement of disputes
22. Peaceful uses of the ocean space;
zones of peace and security
23. Archaeological and historical trea-
sures on the sea-bed and ocean floor
beyond the limits of national juris-
diction
24. Transmission from the high seas
25. Enhancing the universal participa-
tion of States in multilateral conven-
tions relating to the law of the sea.
55
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Awutwi . REVIEW (WoTdd.), 6 November 1973,
pp. 16 and 19-21.
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picture of the world's oceans unimagined bled over the last twenty years, and pre-
_ even by professionals in the field. They dictions say it will double again in twenty-
are be$inninp' to see not oni'v ihat hard fivN vPnrc V.t in 1Q7(Y t'tii.? no.l
the Seabed
Advanced nations
would like to play
"winner take all," but
poorer countries are
also demanding a share
of the vast underwater
oil and mineral cache.
?1! By Alan Anderson
T he benign neglect of the sea floor is
coming to an end. Man has discov-
ered riches in the continental shelves and
abyssal plains, and he aims to get at
them. Until recently the 150 million
square miles that lie beneath the seas
had not yet received much attention
from man, aside from a rather persistent
habit of "deep-sixing" a fabulous variety
of human and industrial garbage, tangled
cables, wasted ships, and roughly a mil-
lion tons of unexploded ordnance. Now
at least part of the picture is changing
rapidly.
Since World War II the boom in
oceanography and a virtual revolution in
geological thinking have resulted in a
Alan Anderson writes about science
Time magazine.
minerals and petroleum abound under
the sea but also how they got there.
Knowing this, it is for the first time pos-
sible to search for undersea riches in
something more than a random fashion.
There is, of course, a problem: Given
the ability to find these mineral riches,
and even to retrieve them, who is the
rightful owner? The technologically ad-
vanced nations would like to play win-
ner take all and, indeed, are uniquely
capable of exploiting seabed caches. On
the other hand, poorer nations are also
demanding a slice of the underwater pie,
promoting the notion that such wealth
is part of "the common heritage of man-
kind." They warn against attempts by the
sea powers at any sort of undersea rip-
off, speaking ominously of counter-
moves such as the restriction of fishing
and navigation rights. The United States
in particular has stirred up considerable
resentment because of the aggressive at-
titude-and action-taken by American
mining companies. In fact, a ship built
to secret specifications by Howard
Hughes set sail in August to begin ex-
perimental mining, presumably in the
Pacific Ocean, far in advance of any sort
of international agreement.
While other companies wait for legisla-
tion that would protect them against in-
tervention by other companies or other
countries, they are no less eager to begin
the harvest. It is not hard to understand
their impatience: High-grade mineral
resources are becoming scarce in this
country, as are petroleum reserves. "The
United States," insists Ian MacGregor,
chairman of American Metal Climax,
for Inc., "is turning into a minerals-poor na-
tion." Demand for hard minerals dou-
Assault barge-Howard Hughes is reported to be preparing this huge barge for
submersion to the ocean floor, where it will dig for copper, nickel, and manganese.
UPI
to pay $8.6 billion to foreign countries
for minerals and petroleum it could not
produce domestically. Hence the mining
industry is arguing strenuously that free
access to seabed resources would not only
assure a supply of strategically important
metals now controlled by foreign govern-
ments but would also correct a painful
balance of payments disadvantage.
In an effort to mitigate this new kind
of ugly Americana, the official policy. of
the country, as presented to the prelimi-
nary Law of the Sea Conference in Ge-
neva in August, is to create an interna-
tional regime to control mining through
the United Nations. Such a regime, ac-
cording to the plan, would tax mining op-
erations according to complex formulas.
Revenues could bring the United Na-
tions some $6 billion a year that could be
applied to keeping the peace, protecting
the environment, and aiding poor coun-
tries. Best of all, the United Nations
would no longer have to depend on vol-
untary contributions subject to the whim-
sey of changing governments. The pre-
maturely aging institution would gain
sorely needed power and stature.
Geologically, the stakes of this game
may conveniently be divided into two
categories: petroleum and hard minerals.
Petroleum is more familiar as a resource
problem, one that is being fanned by a
few Arab leaders who see our shortages
as the key to forcing change in American-
Mideast policy. According to a U.N.
report, some 2272 billion barrels of off-
shore oil may offer the most immediate
escape from this coercion.
More recently discovered is the wealth
now locked in an assortment of "hard"
minerals, particularly in potato-shaped
manganese nodules lying loose on the
bottom of most of the world's oceans.
Estimates of quantity vary wildly, from
90 to 1600 billion tons in the north Pa-
cific alone. So do ultimate recovery costs
and market values, although the best
guess seems to be that the nodules will
sell for something like $115 a ton. As
Larry Fabian of the Brookings Institu-
tion says, "There is really no hard eco-
nomics in this business yet."
Even soft economics seems to be
enough for the mining companies. Man-
ganese nodules were discovered during
the historic oceanographic expedition of
H. M. S. Challenger, 187:.1-76, but their
abundance was not appreciated until a
decade ago. In 1965 a book appeared
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called Mineral Resources of the Sea by
john Mero, which carried astounding re-
uurca -,(imates that inspired a number
of companies to gear up for what seemed
to be the coming sea-floor bonanza. Mero
has since become quite wealthy as a con-
sultant, and his early estimates have been
toned down a bit; but nodule is still a
magic word for marine technologists.
These golf-ball-sized blackish lumps may
be found from Scottish lochs to Lake
Michigan, but the mother lode seems to
be a 12-million-square-kilometer triangle
southeast of Hawaii, where they occur in
densities of two pounds per square foot.
Manganese nodules are thought to
form as precipitates around a "seed,"
such as a grain of rock, a bit of red clay, or
even a shark's tooth or whale's ear bone.
Although a single nodule may contain
more than thirty different metals, miners
are chiefly after the cobalt, nickel, cop-
per, and manganese, in that order. In the
case of the United States, this is easy to
understand: We import 92 percent of our
cobalt, 84 percent of our nickel, 98 per-
cent of our manganese, and, even though
we are the world's largest copper pro-
ducer, 19 percent of our copper. The first
three are in great demand by steelmakers
-cobalt and nickel for forming super-
alloys when blended with iron and man-
ganese for processing.
DESPITE THE DIFFICULTY of raking the
sea floor from three miles above, the job
may still be easier than land mining,
with its "railroads to nowhere" and other
transport problems. The prospects have
already whetted mining appetites not
only in the United States but also in
France, Germany, Japan, Canada, Aus-
tralia, and the Soviet Union; two dozen
other countries have shown interest. At
this point there seem to be enough nod-
ules for all. The prime resource area in
the Pacific is thought to be rich enough
to support 100 simultaneous mining op-
erations for 200 years-even though a
single mine, to be economical, would
have to comprise some 4000 square
miles, versus 100 on land.
The American effort to mine the sea
floor is being led by a handful of private
companies, particularly the Kennecott
Copper Corporation, Tenneco's Deepsea
Ventures, Inc., and Howard Hughes's
Summa Corporation. Together they have
invested about $100 million. Deepsea
has processed more than 100 tons of
nodules in a pilot plant in Virginia and
says that it could handle a million tons
a year by 1975 or 1976. The 618-foot
Manganese nodules-"A magic word for marine technologists . ."
vessel launched by Hughes in August is
said to be capable, in tandem with a 324-
foot submersible barge, of retrieving
some five tons of nodules a day from the
plains of the deep sea. The companies
are eager, like technological white
knights, to save the country from its
mineral woes. "We are ready," says N.
W. Freeman of Deepsea Ventures, "to
go commercial.",
There is one snag, however: The U.S.
government is unable, and unwilling, to
assure the mining companies that their
multimillion-dollar investments will be
safe. The American Mining Congress is
fighting hard for a bill introduced in both
houses of Congress that would give them
this assurance-and more. Under the
bill any "qualified" company could se-
cure a claim to blocks of ocean floor
40,000 kilometers square-an area
larger than Vermont and New Hamp-
shire combined-plus a commitment by
Uncle Sam to underwrite any losses dur-
ing the next forty years, all for only
$5000. The bill, introduced in the Senate
by Sen. Lee Metcalf of Montana and in
the House by Rep. Thomas Downing of
Virginia, so blatantly favors the mining
lobby that even Metcalf admits it is really
intended not so much for passage as to
spur the government into some kind of
action.
If such a giant land grab did get under
way, there would be global confusion, al-
most certainly accompanied by violence.
Metcalf concedes publicly that those na-
tions without marine technology would
be left high and dry. A natural reaction
on their part would be to start a land
grab of their own-most likely a claim
of a territorial jurisdiction of 200 miles
for fishing and navigation as well as
mineral rights. It is easy to visualize an
escalation of competing claims, infringe-
ment disputes, and the use of armed gun-
boats. Furthermore, a number of devel-
oping nations whose economies depend
on metal exports would suffer if world
markets were suddenly swelled by huge-
new sources. A mere handful of nodule
mining operations, for example, could
equal the current world production of co-
balt. A mineral-rich country such as
Zaire would certainly suffer.
Legally, the bill is on soft ground or
no ground at all. Unfortunately, the 1958
Geneva Convention on the Territorial
Sea did not really deal with the sea be-
yond depths of 200 meters; there was
then no idea that this region would ever
be useful or disputed. The first relevant
precedent was the 1970 U.N. resolution,
passed 108 to 0 in the General Assembly,
with fourteen Soviet-bloc abstentions,
that the deep seabed could not be appro-
priated by any nation. Last March ex-
Secretary of State Dean Rusk said that
the mining proposal was "sheer insanity,"
and Lyndon Johnson, when he was Pres-
ident, wrote: "Under no circumstances,
we believe, must we ever allow the pros-
pects of a rich harvest in mineral wealth
from the seabed to create a new form of
colonial competition among the maritime
nations." At present, the administration
is silent on the bill-a tactic viewed less
as tacit approval than as cagey willing-
ness to use it as a bargaining weapon in
Santiago.
The miners are fit to be tied at the de-
lay. The American Mining Congress, a
lobbying group, complains that the Pres-
ident promised three years ago some
form of interim legislation that would
allow U.S. companies to maintain their
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1'P cae and Politics
Je4gVO0go1mp PaIons of ea -floor spread-
C. H. Burgess, vice president for explora- increasingly scarce: freshwater. Finally, ing and continental drift have not been
i
L
on at Kennecott, warned a Senate corn-
mittee last year that firms needed "cer-
tain assurances of a legal regime" before
risking "large sums-$150-300 million
-for a commercial plant." An exchange
at the same hearing between Senator
Metcalf and T. S. Ary of the Mining
Congress revealed the sense of cama-
raderie and unreality that pervaded the
discussion:
AaY: If the United Nations Seabed
Committee continues at its present slow
rate, it is unlikely that a treaty will be
ratified in this decade, if ever, and cer-
tainly long after the immediate necessity
for a legal regime has passed.
METCALF: If you will pardon me, I
would say you should change that word
decade to centuries.
ARY: Our committee discussed that,
and we thought we should put decade in
there rather than until eternity.
METCALF: Well, you are more opti-
mistic than I am.
Alaskan Sen. Ted Stevens, a co-
sponsor of the bill, further cited the
OPEC and Chilean expropriations in re-
cent years to illustrate what he called
changing times. "We are living in a differ-
ent world today, one in which the less
developed nations are taking concerted
action to strengthen their economic posi-
tion and weaken ours."
While the nodules are the splashiest
ocean-mineral issue, law of the sea de-
baters are quarreling over scores of
others. Among hard minerals the biggest
money-maker by far is ordinary- gravel;
over 100 million dollars' worth is scooped
up each year for construction projects.
Whole industries depend on the dredg-
ing of tin ($41 million a year), limestone
($36 million), sulphur ($26 million),
diamonds ($4 million), iron sands ($4
million), and barium ore ($1 million).
The United States alone collects 20 mil-
lion tons of oyster shells each year to
make cement and fertilizer.. Rutile and
ilmenite yield costly titanium, widely
used in aerospace manufacturing.
In addition to dredging, more than 300
operations off sixty countries are earn-
ing over $400 million a year extracting
minerals directly from sea water, espe-
cially salt, bromine compounds, and
magnesium, and, to a smaller extent,
potassium, calcium, and deuterium-a
heavy form of hydrogen that someday
will provide a virtually inexhaustible
source of energy as the fuel for hydro-
gen-fusion reactors. More than 200
enterprising,,l usszans,.are_pursuing the lost nn oilmen-It has become appa"e.n...
age-old dream of gleaning gold from that petroleum, like hard minerals, can
salt water. Scientists at the Irkutsk In- be expected to occur along both diver-
stitute of Rare Metals report successful gent and convergent boundaries. In a
"It may indeed be many
years before nations can
agree whether to compete
for the riches of the sea in
traditional, warlike fashion
or to divide them peace-fully."
culturing of a fungus that extracts 98
percent of the gold from some sea-water
samples. Other scientists are skeptical of
this biological sleight of hand. Nor has
anyone found the key to better extrac-
tion through chemistry. One calculation
indicates that by chemical means it would
cost $50,000 to isolate the 200,000 dol-
lars' worth of.gold found in a cubic mile
of sea water.
THE MOST EXCITING NEWS for mineral
seekers these days, however, has come
straight out of basic geological research
during the last decade. Geologists have
demonstrated the astounding fact that
the earth's crust is not as rigid as sus-
pected but highly mobile, composed of a
series of sliding "plates," which are cre-
ated along oceanic ridges and consumed
in oceanic trenches. Most important, the
time lag between this discovery and its
practical application has been breath-
takingly short.. Even as oceanographers
were dredging up the muddy evidence
for the theory of sea-floor spreading, they
were hauling aboard the key to new min-
eral riches. Deep-sea drillers aboard the
Glomar Challenger and other research
ships have discovered that minerals tend
to concentrate along the lines where
earth crust is created (divergent boun-
daries) and consumed (convergent
boundaries). The most important find
so far are some hot brines at the bottom
of the Red Sea, rich in iron, manganese,
zinc, silver, copper, and gold. The Red
Sea is a "baby ocean," slowly widening
as molten rock from the earth's mantle
rises to create new sea floor along the
central seam. Three large pools along
this seam are thought to contain more
than. 50 million tons of metal, worth
some $2.5 billion. Economic metal lodes
may also be found along older divergent
plate boundaries, such as the Mid-Atlan-
tic ridge,
baby ocean, for example, organic mate-
rial from land is washed into the water.
As water evaporates, layers of salt pre-
cipitate. The ocean broadens (the Atlan-
tic was a baby ocean 100 to 200 million
years ago), and sediment slowly covers
the organic matter, which, by processes
still not well understood, turns into pe-
troleum. Drilling tests have already re-
vealed encouraging layers of salt and or-
ganic mud in the Red Sea, for example,
and on both sides of the Atlantic; petro-
leum has been found along the West Af-
rican coast, and oil reserves off the east-
ern United States are now thought to far
exceed those under Alaska's North Slope.
Convergent boundaries, where plates
grind together, are thought to be equally
rich, including such regions as the South
China Sea, the Sea of Okhotsk, the Ber-
ing Sea, the Philippines, and Japan.
Knowing all this, oil companies now
estimate that offshore petroleum reserves
are far greater than reserves on land. In
1956 only 1 percent of all our oil came
from offshore wells; now it's up to 18
percent and is expected to reach 30 per-
cent by 1995. The demand for offshore
drilling rigs is now so great that many
countries are unable to buy them. About
135 countries have prospects of discov-
ering offshore petroleum; half of these
are exploring, and half of these are al-
ready drilling.
The main problem offshore is that pro-
duction costs increase more rapidly than
depth. Expenses jump four times, for
example, as depth drops from 33 to 330
meters; at greater depths it may be pos-
sible to tap only giant oil fields. Fortu-
nately, of the 2272 billion barrels of
petroleum estimated by the United Na-
tions to exist offshore, some 1344 bb.-
over half-are buried in the continental
shelves. These shelves are basically
shallow-water extensions of the conti-
nents themselves, averaging forty-five
miles in width and dipping to about 200
meters in depth. Therefore, much of this
huge area is within commercial range
already; one well is now pumping from
a depth of 114 meters.
Such an ongoing black-gold rush
makes it especially urgent that nations
define seabed ownership rights. By the
mid-Seventies oil drilling will pass fishing
as the number-one oceanic revenue
2oApproved For Release 2001/03/04: CIA-RDP80BO1495R00080012000?iP6/73
? SR/World
Approved For ft ease 2001/03/04: CIA-RDP801495R000800120002-9
=?nrner, Governments as well as private
companies want the spoils: A single lure
in the Santa Barbara Channel brought
the Department of the Interior $600 mil-
lion in revenue several years ago. Tre-
mendous pressure to exploit oceanic oil
is building up as Middle Eastern leaders
claim more control of their oil fields and
Alaskan wells remain capped. Because so
many of the potential petroleum pools lie
in areas of! dispute, extraction without an
international treaty would result in argu-
ments over pollution as well as wealth.
Unless some agreement is reached, the
world is certain to see armed clashes as
the energy crisis worsens. Venezuela
and Colombia, for example, have more
than once come close to blows over off-
shore oil near their common border.
Idealists see the hard-and-soft mineral
quarrel as the ultimate opportunity for
the application of international law.
Others foresee a new age of neocolonial
lawlessness of the type that led to the
cynical division of Africa in the nine-
teenth century. The only workable course
at present seems to be some sort of world-
wide controlling regime. The United
States Oceans Policy, announced by Pres-
ident Nixon in 1970, advocates creation
of an International Seabed Area-cover-
ing everything deeper than 200 meters-
controlled by an International Seabed
Resources Authority with real power to
license mining operations, arbitrate
rievanc
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up to $1000 A TENNESSEE BUCKEYE was Jack Daniel's
a day for pollution or other violations.
Perhaps the most radical feature of lucky piece, and he credited it with much of his
this plan is a complex formula to dis-
tribute profits among all nations, based whiskey's success.
on population and per capita income.
For example, of a hypothetical revenue Some of us still carry buckeyes in the hollow today.
of $500 million that might be gathered by
the end of this decade, Somalia ($61 per But we set more store in charcoal mellowing, the
capita income) would get $384,500;
Ceylon ($159 income) would get old method of gentling every drop through 12 feet
$1
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000; and Brazil ($381 income)
,
,
would get $42,567,500. of hard maple charcoal before
.
Between us and an agreeable ocean aging. More than anything,
regime lies legal chaos. As John Dom-
broski writes in the Cornell Law Review, charcoal mellowing accounts _ CHARCOAL
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warring factions seekinR different wals.
Given the uncertain state of things, the No matter what b
chummy cynicism of Mr. Ary and Sen-
ator Metcalf may not be unrealistic after Mr. Jack used to say about BY DROP
all. It may indeed be many years before
nations can agree whether to compete for those buckeyes of his.
the riches of the sea in. traditional, war-
like fashion or to divide them peace- Tennessee Whiskey ? 90 Proof - Distilled and Bottled by Jack Daniel Distillery
fully. Approved For R61 se 200 +m9o4 "olApRt3P884304 R00ORC[Olr2W02-9
Recognized by the United States Government as a National Historic Place.
SR/World ? 11/6/73
SATURDAY REVIEW (World), 6 November 1973
A proveh5For Releasew2001/03/04: CIA-1
DP80B01496iWWO0AK2G'G02-ands. The
concept of res communis first appeared
CHAOS AT SEA
Ardent internationalists are saying
that without new rules governing use
of the seas, armed conflict is inevitable.
SATURDAY REVIEW/WORLD begins in
this issue a series of articles focusing
on three problem areas that so far defy
international solution: the mining of
the seabed, ocean pollution, and the
thorny issue of world fishing rights.
Below, science writer Alan Anderson
introduces the general subject, inter-
views Malta's Arvid Pardo, and ex-
plores "the rape of the seabed."
M Man traditionally has regarded the
sea as vast, mysterious, and wet.
No one questions its wetness, but the size
and mystery of it all seem to be evaporat-
ing. Aquanauts have discovered that they
can live like fishes on the sea floor for
months at a time, and deep-diving sub-
mersibles routinely explore the abyssal
plains. As man overcrowds and over-
exploits dry land, nations already are be-
ginning to bruise elbows in their rush to
corner marine food supplies, natural re-
sources, and sheer space. Governments
are quarreling over fishing grounds,
rights of passage, mineral resources, pol-
lution control, and scientific exploration.
The world finds itself threatened by
this tangle of problems with sobering
suddenness. As recently as 1958 the Ge-
neva Convention on the Territorial Sea
failed to recognize how rapidly man
would expand his domain offshore. The
alert was not really sounded until 1967,
when a genial but determined diplomat
from Malta named Arvid Pardo pro-
claimed that "the known resources of the
seabed are far greater than the resources
known to exist on land." In a 3i-hour
speech to the General Assembly, Pardo,
who was Malta's ambassador to the
United Nations from 1964 until 1971,
argued persuasively that ocean technol-
ogy was outstripping ocean politics at a
dangerous rate. His words were greeted
at first by skepticism bordering on suspi-
cion (why was he bringing this up now?),
but he was dead serious. Within a few
months Pardo was being called "father
of the seabed" and had succeeded in in-
troducing the idea that a new age was
dawning. More specifically, he warned
that man would quickly have to formu-
late new rules for uses of the ocean if he
was to avoid widespread warfare.
The direct result of Pardo's speech was
the creation of an ad hoc U.N. commit-
tee, which in 1969 became a permanent
committee to study peaceful uses of the
sea. Most important, the United Nations
was persuaded to hold a Law of the Sea
Conference in 1973 aimed at writing an
international treaty. Last summer ninety-
two nations spent two months in Geneva,
thrashing through a maelstrom of pro-
posals, counterproposals, and just plain
objections; the committee, expected to
swell to 150 members, hopes to hold its
substantive session in Santiago next year.
Aside from the fact that this is the big-
gest committee in U.N. history, the
points of view represented seem almost
impossibly diverse. Among the 130 coun-
tries generally considered to make up the
world community, 29 are completely
landlocked, 51 have small coastlines, 25
have small-to-moderate coasts, and most
of the 25 that have extensive coastlines
are already affluent. Those with long sea
frontage naturally would like to extend
dominion seaward, while landlocked
countries would prefer a strong interna-
tional agency to assure even distribution
of sea wealth.
Legally, the sea is a quagmire. Do the
oceans and their wealth belong to every-
one (res communis) or to no one (res
nullius)? Most people say neither, but the
proportions remain to be worked out.
Modern nations can no longer be as high-
handed as were Spain and Portugal in
1494 when they divided the world's
oceans equally along a north-south line
in 1608, when Dutch jurist Hugo Grotius
argued that the sea, like the air, is not
subject to appropriation. However, by
1700, men were making a distinction be-
tween "high seas" and "territorial seas,"
and in the nineteenth century the latter
limit was defined by the three-mile range
of a cannon, the extent of land-based
control by weapons.
Modern legal confusion dates from the
1945 Truman Proclamation. This vague
doctrine asserted territorial rights to the
limit of the. continental shelf. Unfortu-
nately, the shelf was not only ill-defined
but also geologically capricious: For ex-
ample, while Peru has practically no
shelf, Siberia presides over 800 miles of
shallow-and potentially mineral rich-
undersea terrain. Thus by 1952 Peru,
Chile, and Ecuador, all practically shelf-
less, had announced total sovereignty
over a belt within 200 miles of shore.
Such claims are obviously impractical in
the cases of island groups and seas such
as the Mediterranean and Caribbean..
Hence some sort of compromise must be
reached, perhaps involving a 12-mile
"territorial sea" and a 200-mile "patri-
monial sea." The former would be a zone
of near-complete control; for example,
foreign submarines would be granted free
passage only while they are surfaced.
The latter zone would involve primarily
fishing and mineral rights.
Within this issue is the ticklish ques-
tion of rights of passage through the
world's 116 major navigable straits.
Naval powers like the United States,
Russia, and Japan will sacrifice almost
anything to obtain guaranteed passage
for tankers, freighters, and warships. If
controlling nations closed only three key
straits in Southeast Asia, for example
(Makassar, Malacca, and Torres), raw
materials for Japan would have to pass
all the way around Tasmania--a dis-
placement that would force dramatic
changes in the value of the yen and ulti-
mately in the entire world monetary bal-
ance.
The other question that must be re-
solved is the nature of the controlling
regime. Most of the developing and land-
locked nations;, want a strong .interna-
tional agency that will prevent industrial
states from taking control. Developed na-
tions want a freer band, with individual
states holding licenses to mineral and
hydrocarbon rights. The answer could be
a "cosmo-corporation'' along the lines-of
Intelsat, the international consortium of
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Approved For Fleas
eighty-two nations that regulates com-
mercial satellite use.
Many observers are pessimistic about
the ability of the Law of the Sea Con-
ference to reach agreement on such basic
issues, especially since some less-devel-
oped but :mineral-rich countries would
rather negotiate bilaterally. "If I were an
LDC and didn't have access yet to my
own mineral resources, what would I do
at a conference like that?" asks one econ-
omist. "I'd stonewall it." Nonetheless,
U.N. officers hope that once the two big
questions of territorial sovereignty and
the international regime can be worked
out, the smaller details will quickly fall
into place. Dr. Pardo, who worked in the
United Nations since its formation in
1945 and is now at the Woodrow Wilson
International Center for Scholars in
Washington, agreed to summarize his
feelings about the conference-and the
issues-for SATURDAY REVIEW/WORLD:
"I think most people are finally real-
izing that we are involved in a revolution
in our uses of ocean space. In the face of
this revolution, traditional law of the sea
has almost totally collapsed. That is why
in 1967 1 began to push the idea that the
seabed be considered the common heri-
tage of mankind and that an interna-
tional organization be set up to adminis-
ter the uses of the sea. The resources
should be developed to benefit all men,
and the financial benefits used primarily
for the developing countries.
"Let me say that I was thought a total
madman when I made the speech. They
said I was indulging in science fiction,
that estimates of mineral wealth on the
sea floor were immense exaggerations,
and that nothing would happen for dec-
ades that would require the attention
of the United Nations. Well, the ocean
policy that the United States presented
in 1970 turned out to be a fairly close
elaboration of what I had said in 1967.
"Even this concept is no longer viable.
One can't consider the seabed separately
from the rest of ocean space. We are run-
ning out of room on land. I see a trend of
transferring human activity into the
oceans-both to avoid congestion along
the coasts and to relieve pollution, Cities
are being planned off Hawaii and in the
North Sea. The Dutch, the Belgians, the
have a port or a refinery, why not small
industry? Why not nuclear power plants?
Why not housing for the people who
work at these facilities? The whole thing
grows like Topsy once it starts. The mili-
tary will want submarine bases in under-
sea mountainsides. We will be tempted to
change the weather, divert ocean cur-
rents. Russia and Canada both intend
to divert huge rivers that now flow north-
ward: What will this do to the climate?
These schemes are frighteningly danger-
ous but perfectly legal now.
"The present law is based upon two
concepts: sovereignty and freedom.
There is national sovereignty in terri-
torial waters, freedom beyond. We also
have various zones for fisheries, security,
mining. There is no consensus on limits;
so every state has been doing what it
wishes. There must be an agreement that
we can't have total sovereignty, for that
would mean total chaos. Nor can we
have total freedom, for the same reason.
"What I would like is a new interna-
tional agency to sort out these questions.
It should not be part of the United Na-
tions, for it would then sink into the
swamp of what the United Nations has
become. Nor should it be a rival to the
United Nations. It must be a parallel
agency, founded on different founda-
tions. We are no longer in 1945. We are
getting on to 1975, and the world has
changed. We cannot have an interna-
tional system based upon the system of
one nation, one vote. The way things
stand, you can get a voting majority at
the U.N. from states that represent ten
percent of the world's population; you
Japanese are already moving toward off- can get a two-thirds majority with states
shore facilities. The Dutch want an arti- representing less than fourteen percent of
ficial island to recycle wastes. They also the population. This is ridiculous.
say, instead of re-doing the port of Rot- "The agency would have three cate-
terdam for supertankers, why not have gories of member states, all of which
495R000800120002-9
dred thousand. First, states that have
more than one hundred million popula-
tion or meet six of nine criteria, such as
length of coastline, catch of fish, and vol-
ume of merchant shipping. Second, all
other coastal states. Third, landlocked
countries. A decision by the agency
would require a majority in two of the
three categories. Everybody would have
one vote, but they would have to express
it in the category in which they belong.
"The regime should be concerned with
all problems associated with the sea. It
should establish international standards
for the use of the sea, whether within or
outside national jurisdiction. The outside
area should be administered for the bene-
fit of the international community as a
whole, taking into particular account the
needs of poor countries. The system
should take on such tasks as pollution
monitoring, fisheries management, and
the settlement of disputes. Someday we
will need another agency like it to deal
with outer space.
"Whatever kind of regime the United
Nations adopts, the details will have to be
worked out in Santiago. By the standards
of the United Nations, we made fantastic
progress over the summer in Geneva
compared with last year. There's been a
fantastic amount of movement, of put-
ting out draft treaties. What has not
started yet is serious negotiating, which
is understandable. You don't get govern-
ments to focus on this question on a
high political level until they have to.
"Once the conference starts, we shall
really have to move. Next year we shall
complete, at best, consideration of the al-
ternative draft treaties. The crunch will
come in the second half of '75 or the
beginning of '76. If there is no agreement
by'76, the conference will fail. Why? Be-
cause technology will not wait. By then,
manganese nodules, for example, will
have become big business.
"If the conference fails, there will be
not only the obvious short-term chaos,
such as nodule filching and the Iceland
fishing dispute, but also rather serious
long-term implications for the world
community. They will become apparent
after ten or fifteen years, not more. Once
states have a technology, especially a
powerful technology, they will go ahead
and use it and the devil take the hind-
most. That is the way the world has al-
ways operated. If there is no regime for
controlling that technology, the rich will
get richer. The developing countries, the
ones without the technology, will, as
a deep-water port offshore? Once you must have a population over one hun- usual, be the ones to suffer."
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A Law of the
Sea Conference:
Who. Needs It?
Mr. Friedheim is a staff member of the
Center for Naval Analyses and a con-
sultant to the SAIS Ocean Policy Project.
His article has been excerpted from the
forthcoming "International Relations and
the Future of Ocean Space," Studies in
International Affairs No. 10, Institute of
International Studies, The University of
South Carolina.
THE WORLD community has put vir-
tually all of its eggs in one basket.
With the exception of some associated
problems such as pollution, solutions
to which will be negotiated in other
fora, the world community is relying
940ly upon a single, indefinite., uni-
versal law-making conference to re-
solve the multiple problems of the in-
creased uses of the sea. Should the
conference not take place or should
it fail, we may experience the anarchy
on the sea that the headline writers
are so fond of evoking.'
1
E ARE AT the United Nations for
the third time on law of the sea
matters. If we are to give ourselves
the maximum chance for concluding
a ITN Law of the Sea Conference suc-
cessfully, we must understand the po-
litical nature of the UN system. We
must not forget that the UN General
Assembly is a political forum in which
states and groups of states attempt
to foster and protect what they see
as their interests. We may be attempt-
ing to create law at the UN Law of
the Sea Conference, but the problems
that arise are more a result of clash-
ing national wills on policy than of
contrasting legal philosophies. We must
recognize that at the heart of the de-
bate on the law of the sea is the ques-
tion of allocation-allocation of the
ocean's areas and permissible uses be-
tween contending parties that consider
notions of "jurisdiction," "control," or
"freedom" not as theoretical ab-
stractions, but as concepts that en-
hance their short-run interests or pro-
vide them some tactical maneuver
room.
A second factor in assessing the UN
SAIS (School of Advanced International
studies) Review, Vol. 17, No. 1,
Fall 1972., pp. 41-47.
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as a negotiating forum is a recognition
of how its General Assembly, or Gen-
eral Assembly-sponsored conference,
is skewed in favor of the developing.
There is now a permanent majority
of states from the Third World in the
General Assembly. In theory, if the
developing can maintain sufficient
discipline to marshal their votes, they
could ram through the Assembly any
resolution they pleased, however prej-
udicial to the minority of developing
states. In other words, they are in a
position to be rampantly majoritarian.
At least three further observations
can be drawn from this fact. First,
the issues that will be seriously negoti-
ated at the United Nations are those
that are salient to the majority. Second,
we will always be under the threat of
the exercise of majoritarianism. Third,
we cannot expect a majority to be
interested in developing rules for the
ocean divorced from extra-oceanic
considerations.
If it is necessary to have issues on
any UN agenda salient to the develop-
ing majority, it is necessary that we
consider the question of whether the
law of the sea per se is salient to the
majority. The answer is that the law
of the sea as we know it is only in-
directly relevant to the developing
states. It is the ocean users-the de-
veloped-who claim an imperative
need for known rules of transiting on,
over, and under the ocean, who need
laws to state with precision what the
rules of the game are in ocean exploi-
tation, who are concerned with ocean
science both as a source of useful in-
formation and as a source of scientific
truth, and who, because they are both
the major offenders and major poten-
tial victims, wish to bring man's deg-
radation of his environment under
control.
While some developing states have
substantial ocean interests (the West.
Coast Latin Americans in fishing, some
African and Middle Eastern states in
offshore oil), most are primarily con-
cerned with the problems arising out
of their own underdevelopment. Thus
there are two foci to the ocean con-
cerns of the developing states. The
first is the hope that they might harness
the resources of the oceans to over-
come their grave disadvantages. The
second is the knowledge that they
can prevent the developed from using
the oceans to widen the gap between
developed and developing.
The idea of extracting revenue is
still alive, and the hope of many de-
veloping states to create ocean ex-
ploration and exploitation capabilities
is becoming one of the major themes
of the debate. Such aspirations ought
to be viewed sympathetically by the
developed, not only because it is the
"right" thing to do but because unless
the developing find some salient issues
in the debate over the uses of the
sea, they will anticipate no profit from
the conference decisions. Thus, they
will have no incentive to be coopera-
tive.
Unfortunately another focus of some
of the developing states cannot be
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viewed so benevolently by the de-
veloped: that is, the possibility of
blocking or slowing down the access
of the developed to ocean uses and
resources. It is understandable that
such a course would be tempting to the
developing; but such action would re-
duce ocean problems to a mere sur-
rogate for the main issues of the de-
veloped-developing conflict. This is
not to say that there is no reality to
developing fears that, left unchecked,
the developed will use access to ocean
areas and resources to benefit only
themselves, and will thereby widen the
discrepancies between the two sets
of states. But to handle the problem
in this manner is clearly to play a zero-
sum game. Obviously only in a voting
sense can the developing win. As a
consequence all would lose. We have
completed the circle and have thereby
returned to the problem of majori-
tarianism.
The temptation must be strong for
the current developing majority to try
to break the many deadlocked issues
in UN negotiations simply by insisting
upon their own way. But thus far, the
developing have not, as often pre-
dicted, "abused" their position. But
we must understand that the threat
will be constantly present when the
issues under negotiation are important
to both groups.
Another characteristic of UN
politics relates to the type of issues
which, if consensus is not achieved,
are likely to be forced to a vote.
Many of the most contentious issues
which could be brought to a vote in
the Law of the Sea Conference are
highly "visible" issues with a large
symbolic content. Especially touchy
are those issues which deal with
aspects of territoriality. For example,
if "freedom of ocean science," which
in the minds of most developed-state
audiences has a positive connotation,
correlates very highly with control of
territory in the minds of representa-
tives of many developing states, we
ought to be warned that such a con-
cept will have a difficult time gaining
a requisite majority if brought to a
vote?
When issues are symbolic, there is
a tendency for states to be rigid in
their voting. And what is being de-
bated at the Seabed Committee are
exactly those concepts by which states
define themselves. Despite statements
by the developing that Western-derived
international law is unjust, they find
some aspects of that law highly rele-
vant to their present status and future
aspirations. Many of the developing
are "new" states just setting their
borders and creating "nations." Thus
they find concepts of sovereignty and
territoriality highly salient and will
vote for the symbols which help to
reinforce their seeming independence.
And so they must, for no regime
would survive long if it voted con-
trary to the national myth. On oc-
casion, American diplomats (who
have frequently used the same theme
in past UN negotiations) are reminded
that the United States is not the only
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state which must respond to public
opinion.
In summary, we are not going to
get sensible solutioru to ocean prob-
lems if we force symbolic issues to a
vote. Such advice would be a pre-
scription to disaster.
Negotiating ocean use problems at
the United Nations also tends to uni-
versalize problems, many of which
might better be handled at a bilateral
or regional level. For many ocean use
problems are area-specific, or, if bio-
logical, stock-specific. For example,
environmental degradation is a general
problem but turns out to be more
severe where there is an enclosed or
semi-enclosed sea rather than an open
ocean. The measures needed to deal
adequately with the problem will very
likely differ from region to region. Un-
fortunately many of these regional or
local needs are swept aside in the
search for a formula that a great
variety of states could support.
Many ocean use problems are area-
specific in another sense-they are
political regional problems. Much of
the turmoil in the contemporary law
of the sea is a result of the Latin
American 200-mile claims. They have
made no secret of the fact that their
quarrel is with the United States. That
is, it is a regional or hemispheric prob-
lem which-if the U.S. had paid seri-
ous attention in the 1950's and 1960's
as some students of the controversy
claim3-we might have settled years
ago by recognizing that these were
essentially resource and not territorial
claims. It appears to many observers
that the U.S. preferred to bring the
problem to the UN in the hope of
using the totality of states to force a
retreat by an aberrant regional group.
I do not think it has worked that way.
Indeed, it has had rather the opposite
effect of transforming a regional into
a universal problem. It has forced the
Latin Americans to lobby vigorously
for their position among the develop-
ing in general. It has made them try
to sell the 200-mile zone as the only
possible salvation of the developing
states vis-a-vis the rapacious de-
veloped. If they succeed in selling
this position to the developing we
will have a serious problem indeed.
This will not be merely a voting prob-
lem; it will be a problem of conflict
in the real world.
Observers of UN politics are aware
that not all of the trade-offs and deals
are made on the particular items on an
agenda. But too often Western dele-
gations to special UN-sponsored con-
ferences have prepared for the issues
on the agenda of that conference and
little else. Indeed, they are usually au-
thorized to bargain only on the items
on the formal agenda. In other words
they may consider trading an orange
for an orange rather than an orange
for an apple. This appears to have
been the case in the instructions of
the U.S. delegation to the UN Con-
ference on the Human Environment.
If the same pattern prevails in the
instructions of the U.S. delegation to
the Law of the Sea Conference, it
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would be a pity, because it does not
reflect the necessities of the bargain-
ing environment. The developing states
are not primarily interested in develop-
ing a set of rules for ocean use per se.
What they want is an apple for an
orange-a concession by the U.S. on
development assistance, more attention
on the part of the U.S. to the plans
of UNCTAD (the United Nations
Conference on Trade, Aid, and De-
velopment), or lower developed tariffs
on developing products. Until the de-
veloped understand that they must
make concessions on subjects unre-
lated, or only peripherally related, to
the law of the sea in return for de-
veloping concessions on the law of
the sea, we can expect little progress.
BELIEVE that, if viewed in per-
spective, lack of substantive progress
at the last several law of the sea
negotiating sessions may not neces-
sarily point toward a disaster in the
law of the sea. The stalemate gives
all participants with important interests
at stake time to back away from the
extreme positions that they have so
bravely announced on the floor of
the Assembly or Committee. Many
states-of greatly varying persuasions
-doubtless would be grateful not to
have to push their symbols to a vote.
The time we will gain by not trying
to push a law of the sea conference to
the voting stage in 1973 will also pro-
vide us time for a number of other
important tasks.
First among them is the task of
seeking solutions to ocean use prob-
lems by means other than a universal
UN-sponsored law-making conference.
I mean this in two ways depending
upon the circumstances. The first is
a rival medium for solving ocean use
problems; the second is a supplement
to the UN proceedings.
One reason for the impasse is that
many of the participants did not under-
stand the alternatives in case of a
breakdown in the law of the sea
negotiations. The explanation for this,
I suspect, is that the developed never
really considered an alternative to
UN bargaining on a transnational,
regional, or interested parties basis.
Therefore they did not communicate
to the developing that they thought
they had an alternative in case of
failure or intransigence.
The developing have not neglected
such specialized conferences, with the
Latin Americans meeting on law of
the sea matters at Lima, Peru, and
Montevideo, Uruguay; the Asian-
African Legal Consultative Commit-
tee meeting at Colombo, Ceylon; and
the heads of non-aligned countries
meeting at Lusaka, Zambia. If the Law
of the Sea Conference does not con-
vene, or fails, many of the develop-
ing will try to enforce as law the
positions they decided on at such meet-
ings.
The developed should do no less,
if only to demonstrate what would
occur if there is no effort to reach
compromise at Geneva. Moreover,
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given the technical resources available
to the developed (as a whole or as
subsets of the whole), specialized con-
ferences can take the lead in drawing
up draft conventions which could
then be presented either as documents
the participating states alone would
agree to or as the basis for further
bargaining between the participating
and non-participating states.
The second reason to look to
regional, user, or specialized confer-
ence means of coping with new ocean
use problems is that, even if the Law
of the Sea Conference succeeds be-
yond our expectations, it cannot deal
with all the relevant problems. It can-
not, first, because of the sheer com-
plexity of the issues, and second, be-
cause some problems are a result of
local or regional physical or biological
anomalies which should be dealt with
on a less-than-universal level. Many
inter-governmental organizations have
interests in the oceans and have made
important contributions to their better
use.4 They should be more frequently
used, improved, and strengthened.
Moreover, there is a warren of trans-
national non-governmental organiza-
tions interested in the oceans, whose
services have been and can continue
to be called upon to solve ocean prob-
lems. Too often we neglect that which
is not dramatic or instantaneous.
We will also make wise use of the
time provided by the stalemate if we
spend some of it reexamining the
fundamental issues of ocean use. As
ocean uses increase, the old con-
ceptual framework of freedom of the
seas will become increasingly in-
adequate. It is no longer sufficient to
assume that any ocean user can do
as he pleases as long as he does not
interfere with the rights of others, be-
cause we know how interrelated are
the activities on the oceans and how
comparatively fragile the ocean is.
We can congest straits, we can pollute
offshore waters, and we can over-
harvest fish stocks.
In short we must deal with the
problems arising out of the common
property nature of the ocean. At the
same time we cannot merely assume
that the answer is to extend national
jurisdiction out to some mid-ocean
median point where one state's "terri-
tory" will meet that of another state
whose land territory begins on the
other side of the ocean. If we merely
reduce ocean territory to national
property, we will have "balkanized"
the oceans, probably destroyed the
basis of world commerce (with each
coastal state tempted to charge a toll
for transit of its "territory"), and set
the stage for naval clashes akin to
those of the great age of sail de-
scribed by Mahan in The Influence of
Seapower on History.
In other words, some aspects of
"freedom of the seas" are still relevant
to the rational use of the oceans. Some-
how we must balance off the re-
strictions necessitated by greater use
with the freedoms that would allow
us to use the.oceans without excessive
costs and administrative burdens. We
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are still awaiting a new operational
concept for characterizing the per-
missible ocean uses of the future.
i James P. Brown, "Anarchy at Sea,"
New York Times, April 10, 1972.
2 Robert L. Friedheim and Joseph B.
Kadane, "Ocean Science in the UN Polit-
ical Arena," Journal of Maritime Law
and Commerce 3:3 (April 1972), pp.
473-502.
3 David C. Loring, "The United States-
Peruvian `Fisheries' Dispute," Stanford
Law Review 23:3 (February 1971), pp.
391-453; Barry B. L. Auguste, The Con-
tinental Shelf: The Practice and Policy
of the Latin American States, with Spe-
cial Reference to Chile, Ecuador and
Peru (Geneva: DROZ, 1960).
4 Robert L. Friedheim, "International
Organizations and the Uses of the
Oceans," in Multinational Cooperation:
Economic, Social and Scientific Devel-
opment, edited by R. J. Jordan (New
York: Oxford University Press, 1972),
pp. 223-281.
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