Knight, H. Gary

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A Reply to Deepsea\u27s Adventures: Grotius Revisited

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H. GARY KNIGHT*A Reply to "Deepsea's Adventures:Grotius Revisited'"tI find myself in disagreement with the conclusions of Mr. Biggs' article and Iwish to address some thoughts on two points raised in it: (1) the attitude ofdeveloping nations in the law of the sea negotiations, and (2) the apparent changeof U.S. Government position on the seabed mining issue.I. Developing Nations' Attitude In theLOS NegotiationsIn his now famous article, "The United States in Opposition," AmbassadorMoynihan points out quite lucidly the origins of the anti-development and anti-American bias of the vast majority of developing nations. He notes further theirpreoccupation with wealth redistribution as opposed to wealth creation.Although he did not specifically apply his thesis to the law of the sea negotiations,it is very much on point.What Deepsea Ventures, Inc. has done by its claim and by its anticipatedprogram of development is to create wealth. Wealth can only be created in aclimate of intellectual and capital freedom with miniilal restraint from govern-ment and bureaucracy. The amazing growth and development of Westernindustrial civilization is ample proof of this statement.The position of the developing countries in the law of the sea negotiations hasbeen one of opposition to development of deep seabed minerals or, in lieu thereof,in favor of establishing complete control over such activities. Control may beeffective for the policy of redistribution of wealth, but it is inimical to creation ofwealth. Thus, the fundamental difference in philosophy between the developedand developing countries turns on their perceptions of how we ought to go aboutdealing with the resources of this planet.As has been amply pointed out in the law of the sea debates, developingcountries tend to be adversely affected far more than developed countries by*Campanile Charities Professor of Marine Resources Law, Louisiana State University Law Center;member, Advisory Committee on the Law of the Sea (National Security Council Inter-Agency Law ofthe Sea Task Force).t9 INTERNATIONAL LAWYER 271 (April 1975) contained this article, authored by Gonzalo Biggs.. International Lawyer, Vol. 9, No. 4752 INTERNATIONAL LAWYERincreases in the prices of raw materials. Since the development of a new source ofminerals could provide a stabilizing influence against cartelized price rises for thecommodities contained in manganese nodules, it would seem economicallylogical for the developing countries to support the activities of Deepsea Ventures,not to oppose them. That they have not done so seems incredible, yet the sameapproach was manifested in the developing nations' support of the OPEC oilprice rise, which action hurt them far more seriously than it did the United States.Some possible reasons for this attitude were alluded to in an excellent articleentitled "Seizing Arab Oil" which appeared in the March, 1975, issue of Harper'sMagazine. It was suggested there that the non-representative character of mostdeveloping nations' governments to prefer to witness some slight discomfort onthe part of the United States rather than to alleviate starvation and oppression intheir own countries.What the developing countries must (but apparently do not) realize is that theirefforts in the law of the sea negotiations will not and cannot be permitted toimpede those measures of freedom in the seas necessary to develop the bounty ofthe oceans. The technology to mine deep seabed minerals is not so sophisticatedthat it cannot be developed or acquired by any developing country wishing toparticipate in mining activities. Likewise, there are nodules of sufficient value inso many areas of the world ocean that the lead taken by mining companies in theindustrialized nations need not prohibit later entry by the developing countries.It is apparent, then, that the developing nations' positior on deep seabedmining is ideologically motivated rather than being based on economic orpolitical reason. Just as the United States and the Soviet Union are attempting topursue more logical courses of economic cooperation, it behooves the developingnations to put aside their ideological attitudes toward wealth and to participate ina rational economic manner in the exploitation, enjoyment and distribution of allpossible new sources of raw materials.HI. Change In the United States Government'sPosition on Seabed MiningWith respect to Biggs' comment about a perceived change in American atti-tude between its 1970 election to pursue an international regime rather than totake a flag-nation approach, on the one hand, and its 1974 acquiesence in theright of Deepsea Ventures, Inc. to pursue exploitation of deep seabed mineral re-sources under existing international law, I would first observe that there has in myview been no change in position. United States Government representatives haverepeatedly stated in congressional testimony since 1970 that manganese nodulesare res nullius and that American citizens are as free as the citizens of any othernation to mine them. Our government did not earlier, and has not now inresponse to the Deepsea Ventures claim, assert that exclusive rights to suchresources can obtained under present international law.International Lawyer, Vol. 9, No. 4A Reply to "Deepsea's Adventures"However, it is more important in my opinion to note that (1) in 1970 the UnitedStates made an extremely generous offer to share with developing nations thewealth not only of the deep seabed but also of the continental margin and its richdeposits of petroleum and natural gas; (2) the United States executive branch hasactively opposed all efforts of Congress since 1970 to enact legislation authorizingthe mining of deep seabed minerals by American companies; and (3) the UnitedStates Government has, with remarkable restraint, pursued both these policies inthe face of foot-dragging tactics on the part of many developing nations and,worse, in face of the OPEC oil price rise and embargo outrages.Only after four years of patient and good faith negotiations, thwarted at everyturn by the insistence of developing nations on ideological positions which do notbenefit even their own people, did the United States respond to an actual miningclaim by recognizing the legitimate rights of its citizens to do what any otherindividual or nation in the world has a right to do-viz., to mine resources which,in international law, are recognized as res nullius, subject to title vesting in himwho first reduces them to his possession. Even at that, the United States Govern-ment continues to officially support the Law of the Sea Conference and its repre-sentatives have testified before Congress following the unsuccessful Caracas andGeneva sessions that it is in the national interest to do so. Only most reluctantlyhave government representatives indicated an intention to review earlier objec-tions to domestic seabed mining legislation pending the New York session of theLaw of the Sea Conference.In my view, the developing nations of the world are badly misjudging thecharacter of the American people and the responsiveness of their government tothat character. The United States, through an economic and political systemwhich is unmatched by any other in history, has achieved unparalled levels ofindividual liberty and material prosperity. The American people are patient andunderstanding, and their generosity throughout the world has beendemonstrated time and time again. But they will not indefinitely appease a groupof nations virtually none of which has a representative government, freedom ofthe press, or any significant measure of individual liberty. They will in the verynear future, I predict, use their political and economic structure to develop,under a free economic system, those resources which could be of benefit to allmankind. If the developing nations force the United States and other industrialadvanced nations into a selfish distribution of the benefits of ocean resourcedevelopment, they have only themselves to blame.International Lawyer, VoL 9, No. 4

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A Reply to Deepsea\u27s Adventures: Grotius Revisited

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