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The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT Commander RICHARD L. SLATER, USN

Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402 Price 25 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

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APPENDIX: A. Treaty Relating to the Submarine Areas of the Gulf of Paria, 26 February 1942

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-THE FOURTH DIMENSION OF SEAPOWER

OCEAN TECHNOLOGY

AND INTERNATIONAL LAW*

PART I: INTRODUCTION

REAR ADMIRAL WILFRED A. HEARN, USN
Judge Advocate General of the Navy

WE LIVE ON a planet where, even today, seventy-five percent of the world's people never know the pleasure of a full stomach. A fundamental fact, which must be recognized, is that freedom, democracy, and perhaps even peace, are "luxuries" which hungry and desperate men often feel they cannot afford. History has demonstrated that such men are prone to accept anarchy at one extreme or tyranny at the other. If for no other reason than this practical consideration, the nations of the world cannot tolerate poverty and backwardness as a permanent state of existence.

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effectively in all the thousands of years since he began to move about. As a matter of fact, there are at the present time operationally inaccessible areas which lie not far beyond the surf line off the west coast of the United States.

Technology, however, is rapidly changing this situation. The scientific and academic communities are conducting many research and development projects aimed at increasing man's effectiveness beneath the ocean's surface. An increasing number of United States corporations are taking an active interest in undersea operations. They are developing tools and technology for extended operations on the continental shelf and new submersible vehicles capable of exploring the ocean floor at great depths. Nodules rich in manganese lying free on the deep ocean floor are only one example of the riches which are luring private industry to design these new and exotic deep submersibles.2

mercial Fisheries can now employ small fish, not normally used for human consumption, in the production of tasteless and odorless fish protein concentrates, about 85 percent protein, which are already a very promising dietary supplement. Id. at 10. 2. This presentation concerns primarily the resources of the seabed and subsoil of the oceans. It should be borne in mind, however, that sea water itself is an abundant but largely untapped source of minerals. See Chanslor, Treasure from the Sea, Science and the Sea 9 (U.S. Naval Oceanographic Office 1967).

It will come as no surprise that the Navy is playing a vital role in many of these new developments in oceanography. Scientific and technical research is being conducted on a broad spectrum to provide increased knowledge concerning the oceans and techniques for operating at great depths. As the Navy's oceanographer has observed, "Nearly every naval weapons system or technique requires extensive oceanographic data to aid in its developmental state. Polaris missiles, homing torpedoes, deepranging submarines, and antisubmarine warfare forces depend upon extensive knowledge of the depths to successfully complete their missions." There is nothing in the science and technology of oceanography which does not affect the Navy in some way. Advances in oceanography enhance the Navy's ability to safeguard our national security and, at the same time, enhance the capability of industry to explore and exploit the ocean's resources.

The Navy is also engaged in continuing research and study in an attempt to assist in the identification and formulation of viable principles of law which will clarify legal rights and obligations in this challenging environment. At the 1966 Annual Meeting of the American Bar Association, the Office of the Judge Advocate General addressed a presentation to the historic relationship between seapower and international law. This year's presentation focuses in greater depth on a particular aspect of this subject the relationship between the emergence of a new dimension to seapower and the emergence of new rules of international law in response to these new technological developments.

For many centuries "seapower" has been a three-dimensional concept.

In ancient times, as today, the seas were used to a significant extent for the purpose of trade, communications, and limited coastal fishing. These uses, which comprise the first dimension of seapower, date back not hundreds but thousands of years. Ancient maritime codes establishing standard navigation and trade practices existed as early as 1300 B.C.

The second dimension of seapower has for centuries involved the capability of a nation to use the oceans as a milieu for preserving its security and exercising its right of national selfdefense. The strategic and tactical importance of this second dimension of seapower has been repeatedly demonstrated from the Greco-Persian War in 480 B.C. to the present conflict in Vietnam. Indeed, it is commonly asserted that

the territorial sea concept arose out of recognition of the fact that a coastal state could legitimately claim a belt of seas up to the distance that its shore batteries could reach-in other words, out to the distance to which the coastal state could effectively exercise its right of security and self-preservation. In this age of intercontinental ballistic missiles, it is of course no longer meaningful to tie maximum effective territorial sea claims to the range of defensive weapons.*

During the period of discovery, from the 16th through the 19th centuries, seapower assumed a third dimension. During this period the entire world became accessible to the maritime powers for purposes of political expansion and colonization. Great empires such as those of Spain, Holland, Portugal, France, and Great Britain rose during this period through the application of seapower for political imperialism. Although the evils of colonialism are well-known today, the use of seapower for this purpose did result in the spread of western culture and civilization to much of the world and, in turn, formed the basis of much of the international political and legal system as we know it today.

But now seapower is assuming a fourth, and

3. The emergence of a general understanding among maritime powers from the 17th century onward that the seas were free and open to all states was accompanied by the strategically necessary concomitant doctrine that the free seas did not extend to the shoreline of the coastal state. Under the well-known "cannon shot rule," the free seas ended at the point where shore-based cannon could reach-commonly believed to be 1 marine league (3 nautical miles) at the time that the modern territorial sea concept was taking shape. Such a theory of the territorial sea was not necessarily inconsistent with Grotius' reasoning in support of freedom of the seas. Grotius wrote, "All property is grounded upon occupstion which requires that movables shall be seized and immovable things will be enclosed; whatever therefore cannot be so seized or enclosed is incapable of being made a subject of property. The vagrant waters of the ocean are thus necessarily free.” If shore batteries could reach 3 miles with reasonable accuracy, it could be argued that there was a militarily effective permanent "seizure" or "enclosure" of the seas within 3 miles of the coast. 4. The overwhelming majority of coastal states now claim territorial seas of 3 miles (32 states), 6 miles (16 states), 12 miles (35 states), or other distances between 3 and 12 miles (8 states). The Santiago Declaration of August 18, 1952, which is relied upon by certain Latin American states claiming sovereignty or resource control out to 200 miles, is based on an appeal to the special interest of the coastal state and its people in the natural resources of such a zone. No argument concerning range of weapons or security is presented at all in the declaration. Declaracion Sobre Zone Maritima, translated in U.S. Naval War College, International Law Situation and Documents 1956, at 265-67 (1957). The declaration's emphasis is reflected by Argentine Law No. 17,094 of December 29, 1966, which declares Argentine "sovereignty" over the sea adjacent to the coast to a distance of 200 miles, but which nevertheless states that “freedom of navigation and air navigation is not affected by the provisions of the present law," 6 American Society of International Law, International Legal Materials 663 (1967).

perhaps its most important, dimension. This dimension involves the capability of a nation to extract the great food and mineral resources from the oceanic environment. It is estimated that in the next decade over 25 percent of the world's production of oil will be derived from offshore installations. Modern drilling rigs and platforms are fast becoming industrial towns at sea. Some are complete with helicopter landing pads and living spaces. The science of oceanography, in its broadest sense, is the key that will unlock the door to this new dimension of seapower.

The four 1958 Geneva Conventions on the Law of the Sea are the most important single source of the contemporary international law of the sea. The High Seas 5 and Territorial Sea" Conventions are basically codifications of wellestablished, pre-existing customary law. It is not surprising that these two conventions deal almost exclusively with the use of the seas for communications. The Continental Shelf Convention, on the other hand, contains a relatively new body of rules concerning the exploration and exploitation of resources of the seabed and subsoil of the continental shelf. Furthermore, in the fourth convention-the Fishing Convention -a significant number of maritime nations have agreed to take new initiative to adopt, or to cooperate with other states in adopting, such conservation measures as may be necessary for the protection of the living resources of the sea.

The Fishing Convention, which became effective in 1966, defines "conservation" as "the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products." " New and sophisticated fishing techniques make it more vital than ever that the abundant schools of fish in the oceans today not be foolishly and needlessly destroyed for want of adequate international conservation measures. This is the goal of the Fishing Convention which, although in force, as yet lacks

5. Convention on the High Seas, April 29, 1958, in force Sept. 30, 1962, 13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82 (hereinafter High Seas Convention).

6. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, in force Sept. 10, 1964, 15 U.S.T. 1606, T.I.A.S. 5639, 516 U.N.T.S. 205 (hereinafter Territorial Sea Convention). 7. Convention on the Continental Shelf, April 29, 1958, in force June 10, 1964, 15 U.S.T. 471, T.I.A.S. 5578, 499 U.N.T.S. 311 (hereinafter Continental Shelf Convention). (Appendix C, infra.) 8. Convention on Fishing and Conservation of the Living Resources of the High Seas, April 29, 1958, in force March 20, 1966, 17 U.S.T. 138, T.I.A.S. 5969 (hereinafter Fishing Convention). 9. Id., art. 2.

the adherence of many important fishing nations whose cooperation is essential.

It is important to bear in mind that the new rules dealing with the "fourth dimension" were developed out of a growing recognition of the importance of the oceans as a source of food and mineral resources. The United States itself depends today upon foreign sources for many of its prime industrial necessities. Our industry requires 77 materials characterized as strategic. Fewer than 12 of these are produced in adequate quantities within our national boundaries.

Just as important, the codified rules regarding ocean resources were developed only after problems were sufficiently identified to insure that the rules would be generally reflective of the needs and desires of the bulk of maritime nations. The rapid emergence of rules governing the conservation of fish resources and the continental shelf offers strong support for the view that international law is a servant of man, and can, if necessary, develop rapidly in response to his needs.

The question arises as to why the Navy is concerned with the entire spectrum of new oceanic activities, many of which will be primarily of a nonmilitary, commercial nature. The reasons for this interest are twofold. First, these operations may interfere with or restrict the free movement of naval vessels on and under the high seas. It is essential, therefore, to examine the respective legal rights of all users in order to develop methods of accommodation and cooperation. The second reason for the Navy's interest is that it may not be long before some citizen or corporation will ask for United States protection of a resource extraction operation in an area of the high seas on, or even beyond, the continental shelf. The Navy will certainly play an important role in affording the protection that may be legally and reasonably granted in such a case.

We often forget that 70 percent of our globe is covered by water. The continental shelfwhich is at relatively shallow depths-lies under only a small portion of this gigantic area. The rest of the seabed is covered by up to 7 miles of water. Although we are still only at the threshold of tapping the resources of the seabed and subsoil of the deep oceans beyond the continental shelf, it is foreseeable that the current spirit of scientific cooperation and accommodation may, in the future, give way to real conflicts among users. Members of the legal profession must prepare themselves to resolve or, if possible, avoid these conflicts by a meaningful extension of the rule of law to the ocean depths.

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