This issue contains timely and relevant articles on each of these important subjects - three articles relating to the seabed question, two on fisheries management problems, and one on pollution. In addition to the student contributions in the synopsis of recent developments in the law of the seas, student comments are also directed to three significant aspects of law of the sea issues, viz., the interests of land-locked states, the question of baselines for outlying archipelagos, and marine archaeology

Knight, H. Gary

English

University of San Diego

FOREWORDLaw of the Sea Negotiations 1971-1972--from Internationalism to NationalismH. GARY KNIGHT*If there exists a dominant theme which can be said to charac-terize the period between publication of the 1971 "Law of theSeas" issue of the San Diego Law Review and this current issue,it must be the dramatic trend away from international solutionsto problems of ocean resource development and conservation andtoward nationalistic solutions. This trend is evident in three majorareas of the current law of the sea ("LOS") negotiations-the sea-bed question (i.e., the question of the legal-economic regime togovern exploitation of non-living resources of the seabed and sub-soil beyond the limits of national jurisdiction), fisheries man-agement, and pollution control.This issue contains timely and relevant articles on each of theseimportant subjects-three articles relating to the seabed question,two on fisheries management problems, and one on pollution. Inaddition to the student contributions in the synopsis of recent* Campanile Charities Professor of Marine Resources Law, La. StateUniv. Law Center; Member, Advisory Committee on the Law of the Sea(U.S. Government Inter-Agency Law of the Sea Task Force); Coordinator,La. State Univ. Sea Grant Legal Program.May 1972 Vol. 9 No. 3developments in the law of the seas, student comments are alsodirected to three significant aspects of law of the sea issues, viz.,the interests of land-locked states, the question of baselines foroutlying archipelagoes, and marine archaeology.(1) THE SEABED QUESTION. Since publication of the lastissue of the San Diego Law Review devoted to the oceans, theUnited States Seabed Committee has met twice (July-August, 1971,and March, 1972), and the General Assembly has acted to expandthe membership of that Committee from 86 to 91 members, mostsignificantly adding the People's Republic of China, a factor whichhas as yet undisclosed ramifications. More "seabed regime" pro-posals have been submitted (see generally, "Recent Developmentsin the Law of the Seas III: A Synopsis," (Sovereignty-Seabed)pp. 665).As noted above, this issue contains three articles dealing withvarying aspects of the seabed question.In "The Council of an International Sea-Bed Authority" (p. 404),Professor Louis Sohn discusses the problems involved in structur-ing the decision making organ of an international oceans organ-ization so that (1) it will be politically acceptable to all interestsand yet (2) it will be operatively functional. If a nationalisticsolution to the seabed question is avoided and a meaningful inter-national regime adopted, this may well be the single most im-portant feature of the international machinery, for the decisionsmade by the "Council" will be the basis for all seabed operations.Professor Sohn goes beyond the proposal he originally preparedfor the United States' draft seabed treaty and proposes in his arti-cle suggestions for a still more representative Council, indicatinga number of alternative patterns. This work is thus a valuablecontribution to those who must identify the issues, consider thealternatives, and negotiate the regime to be adopted at the ThirdConference.In "The Concept of 'Common Heritage of Mankind': A Political,Moral or Legal Innovation?" (p. 390) Stephen Gorove indicatessome of the difficulties inherent in a much used term in the cur-rent LOS negotiations. Although most have tentatively concludedthat "common heritage of mankind" as applied to ocean resourcesimplies at least (1) non-appropriation of the area by nations orpersons, (2) international machinery to govern activities con-ducted in the area, and (3) some form of assistance to developingcountries from such activities, events occurring within the pastyear would seem to indicate that the desirable elements in thisconcept may not be a significant part (if any part at all) of the[voL. 9: 383, 1972] ForewordSAN DIEGO LAW REVIEWnew oceans regime likely to emerge from the 1973 Conference.Much support is now evident for an "economic resource zone" inwhich the coastal state (though acceeding to a 12 mile limit forthe breadth of the territorial sea) would possess exclusive or pref-erential rights to all living and non-living resources of the sea-bed, subsoil, and superjacent waters out to a maximum of 200miles from the baseline. Should this regime come about for ad-jacent areas, it is likely that the regime discussed by Francis Auburnin "The Deep Seabed Hard Mineral Resources Bill" (p. 491) wouldbe adopted for the area beyond 200 miles, thus creating either out-right national jurisdiction (to 200 miles) or flag-nation jurisdiction(beyond 200 miles) for the entire ocean. The Bill discussed byProfessor Auburn would permit deep seabed mining activities tobe carried out under national laws and envisions parallel legisla-tion in nations with advanced seabed mining technology (hearingson the Senate counterpart of the Bill will probably already havebeen held by the time this issue is published). Obviously, "commonheritage of mankind" comes off rather badly in this scenario. AsProfessor Auburn notes in concluding his article, "for the vastmajority of states who do not have the technological capabilitiesor capital to take part in mining, [the bill] offers no benefits fromthe area which the General Assembly holds to be the commonheritage of mankind."This nationalistic tendency is probably due to two factors, thoughit is difficult to tell which is dominant or, indeed, which may haveprecipitated the other. The first is the ascendant nationalism ofthe developing countries. Some tentative support from develop-ing nations for an international or "common heritage" approachin the oceans was indicated shortly after Dr. Pardo's initiativein the 1967 General Assembly where prognostications of greatwealth to be shared by developing countries were made. Asstudies indicated a reduced magnitude of benefits to be garneredfrom the development of ocean resources, the nationalistic elementbegan to emerge, and the developing nations are today in the fore-front of the drive for a 200 mile "economic resource zone."The second factor is the position of the United States' Depart-ment of Defense ("DOD"). DOD seeks maximum mobility inthe oceans through its proposals to limit the breadth of the terri-torial sea to 12 miles and revise the notion of "innocent passage"to provide for "free transit" through, under, and over interna-tional straights. Articles I and II, submitted by the United Statesdelegation to the July-August, 1971, meeting of the U. N. SeabedCommittee contain these proposals. Several "straits states," par-ticularly archipelago nations such as Malaysia, Indonesia, and thePhilippines, have adopted systems of straight baselines whichwould effectively bar or limit passage through their many straits.This important facet of the DOD position is discussed in a studentcomment by Michael A. Leversen, "The Problems of Delimitationsof Base Lines for Outlying Archipelagos."In order to secure its passage or transit objectives, DOD is pro-bably willing to grant to developing nations (who, it must beremembered, have the preponderant voting power at the 1973Conference) essentially whatever they desire, so long as it does notconflict with DOD's perceived needs of naval mobility. At first,of course, and as noted above, it was supposed the LDC's desiredan international regime, and this was offered in the form of theUnited States' Draft United Nations Convention on the Inter-national Seabed Area. Now, however, it appears that DOD(through the United States delegation) may offer acceptance ofthe 200 mile "economic resource zone" concept as the appropriatequid pro quo for the straights passage proposal.The role of the land-locked states in the nationalist-interna-tionalist posturing featured in the current LOS debates is also ofsome importance. In a student comment, "The Interests of Land-Locked States in Law of the Seas," Patrick Childs identifies manyof the interests of land-locked states and their position in the in-ternational law of the sea negotiations. One interesting possibilityis that these states, whom one would suppose to support an interna-tional regime for extraction of living and non-living ocean re-sources beyond relatively narrow national limits, may in fact optfor their coastal neighbors' point of view on broad economic re-source zones in return for long sought after transit privileges.(2) FISHERIES MANAGEMENT. The fishing problem, be-cause of the complex legal-political-biological-economic-socialfactors involved, is generally conceded to be the real "chess game"of the current LOS negotiations. Thomas A. Clingan, in "A SecondLook at United States Fisheries Management" (p. 432) suggeststhat we "try something new" in our domestic fisheries policy andadvances an imaginative proposal which contemplates the entirerange of fishery management and allocation problems, from theneed for international action down to activities at the state andlocal level. In an equally farsighted and imaginative article,"Bridging the Gap to International Fisheries Agreement: A Guide[VOL. 9: 383, 1972] ForewordSAN DIEGO LAW EVIEWfor Unilateral Action," (p. 454) Jon L. Jacobson points out that,similar to the "creeping nationalism" inherent in the seabed ques-tion, national assertions of jurisdiction over ocean space for fisheriespurposes "contributes to the creeping disintegration of an im-portant area of the earth's surface that might otherwise, if giventime, be set aside as the 'common heritage of mankind.'" Pro-fessor Jacobson, whose work, like that of Professor Clingan, ispartially supported by the National Sea Grant Program, offers aproposal for characterizing the inevitable national action in thisarea of ocean law so as not to prejudice the possibility for futuremeaningful international cooperative efforts, a laudable objectivein light of current trends in the LOS negotiations.There are several explicit goals in the United States proposalsfor both a seabed regime and an international fisheries regime.Among these are the protection of national security, the develop-ment of needed energy and food resources, the providing of as-sistance to developing countries, and the protection of the marineenvironment. However, the goal of developing workable interna-tional institutions to govern activities in ocean space may be, inthe long run, the most important result of the current LOS effort.If this is the case, much emphasis needs to be placed on the valueof such an international cooperative effort in terms of its effecton future world government, either as a base from which to builda new entity or as a model from which to draw revision ideas forthe United Nations. Thus, desires for rational biological, economic,or social solutions to the fisheries maze should perhaps not beallowed to totally eliminate the international community's vitalinterest in establishment of a viable system of international re-lations and cooperation. The contributions of Professors Clinganand Jacobson contain proposals geared to these long range ob-jectives.(3) POLLUTION. In "Oil Pollution Problems Arising out ofExploitation of the Continental Shelf: The Santa Barbara Dis-aster," David A. Walmsley takes the reader away from the highrhetoric of militant environmentalists and militant industrialiststo the nuts and bolts problems of using the United States' legalsystem to secure redress for damages resulting from oil pollution atsea and to prohibit or regulate such activities in the future. Inobserving that the Santa Barbara diaster "adequately demonstratesthe legal system's incapacity, or at least its clumsiness, in handlingcatastrophic occurrences arising out of the exploitation of theouter Continental Shelf," Walmsley makes some suggestions aboutthe proper role of law in environmental protection.Obviously, this area is coming in for a good deal of attention atthe international level. Two issues seem to be of primary impor-tance at the present. First is the understandable lack of enthusiasmabout environmental protection on the part of developing nationswho view pollution as basically a "good" economic indicator be-cause it means development is occurring. Why, these nations ask,should they retard development for the sake of "quality of life"arguments by nations who have already achieved their technologicalgrowth at the cost of no small amount of pollution? Convincingthe developing world that it is in their long run economic and tech-nological interest to assist in curtailing destruction of the environ-ment, and particularly the marine environment, is likely to bea large task.The second issue concerns what international body or agencyis going to do what to whom? The Inter-Governmental MaritimeConsultative Organization (IMCO) is concerned with marinepollution originating from vessels, but because of its maritime in-dustry orientation the organization has difficult problems of ac-ceptance by the majority of developing states. The United NationsSeabed Committee is primarily concerned in its pollution activitieswith pollution originating from seabed and subsoil exploitationefforts. Even if both succeed in adopting strong anti-pollutionregimes, it remains the fact that only about 10% of all ocean pol-lution comes from these two sources and that the remaining 90%is from land based sources (i.e., air pollution fallout into the ocean,and drainage of adjacent land areas). The United Nations Con-ference on the Human Environment (Stockholm) has a "total en-vironment" perspective, but is likely to produce little more than aresolution suggesting that the 27th General Assembly create aninternational environmental protection organization.The issue is where to place the emphasis and what objectivesshould be given priority. Jacques Piccard pointed out the mindboggling inclusivity of the problem at the Pacem In Maribus IIConvocation on Malta last summer when he observed, after hear-ing much discussion on problems of pollution of the Mediterranean,that the problem of the Mediterranean could not be validly se-parated from the problem of pollution of the world ocean; that thelatter could not validly be separated from land and air pollution;that the latter could not validly be separated from the rate of tech-[VOL. 9: 383, 1972] ForewordSAN DIMGO LAW PEVIEWnological advancement; and that the latter could not validly beseparated from the rate of population growth. Thus, ultimately,the solution to ocean pollution must lie in a careful reexaminationof our entire conception about the role of man in the ecosystem andparticularly his numbers and his use of available resources. In theinterm, however, temporary palliatives must be sought, and theefforts of such bodies as IMCO and the United Nations SeabedCommittee are to be supported. If our present legal system isinadequate to cope with the problem, as Walmsley suggests, thenperhaps we ought to be more vigorous about revising it.(4) NON-EXTRACTIVE USES OF THE SEABED. An increas-ingly important aspect of ocean space use is the plethora of pro-posals for non-extractive use of the seabed and water column.These concepts include floating cities, giant port facilities, under-water parks and aquatic preserver, undersea resort facilities,floating airports-the list is limited only by one's imagination.Among these interests is that of marine archaeology, discussed ina student comment by Howard H. Shore, "Marine Archaeology andInternational Law: Background and Some Suggestions" (p. 668).The issue of non-extractive uses has been raised before the UnitedNations Seabed Committee by Belgium in connection with a pro-posal for a "superport" to be located some 27 kilometers off theBelgian coast, on its continental shelf. Serious jurisdictionalquestions have been raised in connection with the proposal, and itis clear that one desirable outcome (upon which there would prob-ably be substantial agreement) of the 1973 Conference would bean extension of the continental shelf doctrine to include, as withinthe exclusive purview of the coastal state, non-extractive uses ofthe seabed. Clearly, such an agreement would well contemplatethe marine archaeological issue as well.CONCLUSION. Whoever writes the forward for the 1973 "Lawof the Seas" issue of the San Diego Law Review, let us hope thathe will be able to report a turning back to basically internationalsolutions to ocean resource problems. Viewing that as unlikely,however, I believe that the contributions contained in this issuemay offer some of the most creative concepts yet in an effort totake "creeping nationalism" in stride and so handle it at the cur-rent LOS negotiations and in the 1973 Conference as not to for-ever prejudice the possibility of a meaningful international oceansregime.

Foreword: Law of the Sea Negotiations 1971-1972

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Foreword: Law of the Sea Negotiations 1971-1972

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