tion, transit and fishing rights in the immediate and adjacent areas in which the operation is being accomplished. The saturated diver is in a precarious position with respect to man-made perils. He cannot tolerate explosive detonations near his operating vicinity; nor can the saturated diver tolerate extensive pollution or interference by trawls or dragnets in the work areas. He will be chary of even normal merchant ship transit overhead because of the danger of jettisoned debris or because turbulence from the ship's screws might create hazards to the diving operation. On the other hand, hazards to the transiting ship may result from the sudden and unexpected arrival at the free surface of buoyant units used by the divers. Such arrival could be inadvertent or planned, depending upon the nature and variety of the operations-for example, emergency surfacing of transport vehicles, or surfacing of salvage or lift pontoons. Incompatibility of multiple uses of the vertical water column may extend over large areas (as in the case of an oil field), and for protracted periods of time. Under such circumstances, it may be questioned whether an exclusive use of the water column to the prohibition of other uses constitutes "unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea." 56 A controversy of this type has already resulted in the suspension of oil prospecting off the northeast coast of the United States because of the alleged destruction of fish resulting from the detonation of explosive charges employed in seismic exploration.

Another use for saturation diving could be for the establishment of sedentary fish farms. Less clearly protected under the Geneva Conventions would be installations on the seabed for aid in the harvest of free-swimming fish. It has been noted in the SEALAB II experiments that installations can serve as focal points for attracting fish populations. These, in turn, serve as an attraction for the predators of these fish and ultimately the predator's predators. Research on fish populations at the Oceanic Institute of Hawaii indicates that, under proper environments, predators can be pacified and, with the proper addition of nutrients to the areas in which the fish feed, an improved quality as well as quantity of fish yield can be obtained. In addition, observations by the Woods Hole Oceanographic Institution have indicated that natural forces in the form of currents or thermal gradients exist in the ocean which delimit the migration and travel of schools of fish. This and

56. Continental Shelf Convention, supra note 7, art. 5, par. 1.

other evidence suggests the use of SEALAB type installations for fish farming. Then, with the addition of suitable artificial controls of the environment, it ought to be possible to selectively control the type and variety of fish population. It is quite conceivable that porpoises can be trained for such purposes as the herding function. Their efficiency in the location and rescue of lost divers has been demonstrated in SEALAB II.

The future possibility of nations converting fish, normally classified as animals ferae naturae, to animals reduced to possession, in the sense of a rancher's herd of cattle, does not appear to have been contemplated as likely by the drafters of the 1958 Geneva Fishing Convention. If such conversions of large fish populations do someday occur there may well be a need to adopt rules not dissimilar to those required for demonstrating rights in cattle, sheep or other herds grazing on public lands.

It has also been demonstrated by the Naval Ordnance Test Station that it is clearly possible to train dolphins as animus revertendi (having the habit of returning to its owner). The extension of this doctrine to apply to trained dolphins used for military or commercial missions might someday be desirable.

Even if economics or technology does not lead to sophisticated farming techniques herein envisaged, the very existence of even a modest effort to improve the yield and quality of fish in a given area ought to confer some additional right in the harvest of such fish in the one making the investment. It would seem just that the fisherman who had made no such investment should not reap the benefit. Article 13 of the 1958 Geneva Fishing Convention, however, does not appear to confer such priorities. On the contrary, it requires "equal footing" for nonnationals.

57

A number of other missions, not of an exploitative character, which can be accomplished on the continental shelf are not normally prohibited to other nationals by the terms of the Continental Shelf Convention. These include scientific investigation, salvage and the recovery of lost objects. The first of these may involve cooperative research efforts between nationals or differing states. The latter two activities are more likely to involve competition and conflict. The question of jurisdiction could be raised for trying tort and criminal actions 57. See Continental Shelf Convention, supra note 7, art. 2, pars. 1 and 4, and art. 5, pars. 1 and 8; Report of the International Law Commission, Eighth Session, Official Records of the U.N. General Assembly, Eleventh Session, Supp. 9 at 42 (A/3159) (1956) (hereinafter Int'l Law Commission Report).

arising out of such conflict situations. This question has already been raised in the promulgation of the North Seas Installations Act of the Netherlands.58 This act unilaterally extends criminal jurisdiction to all "sea installations." Such installations include those erected on the continental shelf outside the territorial waters for purposes other than the exploitation of natural resources. It should be noted that the passage of the act was the chosen solution of a nation faced with a technological innovation inimical to its purposes, employed in a location apparently otherwise devoid of jurisdiction.

When a competitive international situation, such as any of those just hypothesized, or a competition involving only the nationals of one state occurs on the continental shelf, the presence of free divers in the saturated condition introduces new problems because of the introduction of new perils. It was initially pointed out that the modern admiralty law derived from the perils of transit at sea. The existence of perils to the saturated diver suggests the possible broadening

58. Act of 3 December 1964, translated at 60 A.J.I.L. 340 (1966).

38

ing, or conservation of living resources. Safety zones necessary for the protection of the installations may be maintained, and may extend a maximum of 500 meters around an installation.39 All ships must respect these zones. However, neither the installations nor their safety zones may be established if they interfere with the use of "recognized sea lanes essential to international navigation." 40 The importance of this provision is amply illustrated by the fact that there are already 21,000 structures associated with oil and gas exploitation in the Gulf of Mexico alone.

The Continental Shelf Convention is, prospectively, the most important of the four conventions adopted at Geneva, converting, as it has, unilateral state claims into a rather comprehensive codification of international law. As mentioned previously, Article 1 defines the con

38. Id., art. 5, par. 1. The need for this provision is apparent when it is considered that there are already shelf platforms in existence which cover more than 1 acre and extend 300 feet in the air. The problem of balancing the conflict between exploitation of the continental shelf and other uses, particularly that between oil and gas extraction and fishing, is becoming a matter of increasing public concern. See H.R. 11460, H.R. 11584, H.R. 11984, H.R. 11988, and H.R. 12007, 90th Cong., 1st Sess. (1967) (all concern the establishment of marine sanctuaries and would place a moratorium on development of the continental shelf in designated areas).

39. Continental Shelf Convention, supra note 7, art. 5, pars. 2 and 3. 40. Id., art. 5, par 6.

of many principles of admiralty in the foreseeable future. A few examples which might trigger such a result are as follows: the rights and duties for saving of life at sea, standards of care, availability of decompression facilities, duties to trespassers inadvertently saturated, and criminal jurisdiction.

In preparing the groundwork, the international lawyer should be conscious not only of the current trend of law, but of the physical realities being achieved by the new underseas technology. The examples of technology included in this paper point to the need to preserve the full freedom of the seas in the domain in which the strategic and tactical forces of the Navy have been traditionally deployed. At the same time, they indicate that within the next decades the seabed will increasingly acquire the nature of real property and the law must continue to grow to protect the investors therein. Such growth apparently competes with the trend of free-surface law. This apparent competition requires most careful and cautious attention to questions of jurisdiction on the seabed.

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tinental shelf as an area adjacent to the coast to a depth of 200 meters +1 or, beyond that limit, to the extent that the depth of the water permits exploitation of the natural resources. This is an open-ended definition-depth of 200 meters or depth of exploitability. Although the "exploitability" test does not meet the normal legal requirement of certainty, it does have the advantage of flexibility and makes the Convention applicable without change to future situations brought about by increasing success in exploring the oceans. Of course, this second criterion tends to make the scope of the Convention ambiguous and has already created heated discussions among international lawyers.

Although the Convention on the Continental Shelf does not solve all of the legal problems that will arise in the future exploitation of this area, it will certainly provide a sound foundation for the orderly development of the ocean's shelf resources. Considering the embryonic stage of ocean technology and the relative accessibility of shelf as opposed to deep ocean resources, it is reasonable to predict that increasingly numerous conflicts of uses will arise on and over the continental shelf. Thus, in a practical sense, the Convention codifies a system of order responsive to the needs of today.

41. 656 feet; 109.33 fathoms.

WE ARE ONLY beginning to realize the extent of the wealth of the oceans. There are estimates that the marine environment may eventually yield anywhere from 1 to 10 times the total resources available on land. But we do not yet know what means will be needed to tap that wealth most efficiently, and we know very little about how the ocean's resources are distributed throughout the world. In brief, short of our general interest in preventing conflicts or resolving them peacefully, in many respects we do not yet know what our national or international interests really are. However, notwithstanding the uncertainties of the future, it is possible to render several very generalized judgments regarding the future legal status of the oceans.

First, we know that one day it will be essential to agree on an outer limit for the extension of national jurisdiction under the regime of the continental shelf.59 Two eventualities are most likely. First, it could be generally agreed that the rules established by the Continental Shelf Convention, in spite of the exploitability test, have meaningful application only to areas not more than a few hundred miles from shore. On the other hand, the view could prevail that these

59. See Continental Shelf Convention, supra note 7, art. 1.

Convention rules should govern the exploitation of all of the seabed and subsoil of the world's oceans.

We know that we will ultimately need to resolve conflict-of-use problems on the seabed and subsoil of the deep oceans 60 beyond the continental shelf. In the event it is generally accepted that the regime of the continental shelf does not extend to depths significantly beyond 200 meters, it will be essential to examine and evaluate generally recognized principles of customary international law that may have meaningful application.

Finally, we know that in the foreseeable future we may need some rather specific rules governing deep submersibles and other undersea apparatus. Part III of this presentation provided some insight into the current and forthcoming developments regarding the ability of man to reach the ocean bottom, in submersibles or as a free swimmer, which make this problem of more than academic interest.

There is an underlying geological fact that,

60. The term "deep oceans" is used to describe the seabed and subsoil of the oceans seaward of the continental slope. However, legal rules applicable to the deep oceans would presumably apply to all areas beyond the regime of the continental shelf,

to a considerable degree, controls the order in which problems will arise. This is the fact that most major land areas in the world have a continental shelf. In other words, the water gets deeper quite gradually over large areas surrounding major land masses. The natural tendency is first to explore and exploit these shallow undersea areas which are near the coast prior to venturing into deeper waters. Recognition of this natural tendency is the underlying logic of the Convention on the Continental Shelf. The drafters of the Continental Shelf Convention were therefore concerned with problems connected with the seabed and subsoil lying immediately offshore at relatively shallow depths. However, the United Nations International Law Commission, which worked on the preparatory drafts, was faced with an extremely difficult choice regarding an outer limit.

In the first draft in 1951, the Commission did not set any fixed outer limit. Instead, only the "exploitability" test was used.61 In 1953, the International Law Commission reversed itself, and adopted as an outer limit the 200-meter depth curve, which roughly approximates the outer limit of the geological continental shelf. The fixed outer limit had the obvious advantage of precision.

However, three basic disadvantages to the 200-meter limit were soon perceived.

First, the geological continental shelf in certain parts of the world includes areas of depths greater than 200 meters.

Second, the convention would be outdated as soon as it became technologically possible to exploit resources at depths greater than 200 meters.

Third—and perhaps most important—there is a vast inequality in the distribution of continental shelf areas throughout the world. For example, the continental shelf off the west coast of the Americas-and particularly South America-is extremely narrow. In most of these west coast nations the 200-meter contour is within 10 to 50 miles of the coast, whereas it sometimes extends over 200 miles out to sea off Argentina and the east coast of the United States and Canada.

In 1956 the American states attempted to solve this problem at a regional conference. At an Inter-American Specialized Conference held in the Dominican Republic, it was agreed that

61. On 3 August 1952, the Government of Israel became the first to adopt this formulation in its Proclamation Concerning Submarine Areas. Laws and Regulations on the Regime of the High Seas (ST/LEG/SER. B/8) (U.N. Legislative Series, Supp. 1959, at 14).

the coastal state should have jurisdiction over the continental shelf

* to a depth of 200 meters or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the seabed and subsoil.

This formula was designed to place all coastal states on an equal footing. It is well to remember that it was the problem of unequal distribution which led to the formula adopted at the conference.62

The final draft adopted by the International Law Commission-the one that is found in Article 1 of the actual Convention-is based on the language adopted in the Dominican Republic. In essence, this language constitutes a return to the exploitability test, with the addition that a coastal state automatically acquires sovereign rights in the resources up to 200 meters, whatever its technological capability.

A literal reading of the exploitability test raises an extremely important question: Precisely where does the regime of the continental shelf terminate? Article 6 of the Convention provides that in the absence of agreement, if the same continental shelf is adjacent to the coasts of two or more states, the boundary is normally determined by drawing a line which is equidistant from the coast of each state. If the exploitability test is pressed to its logical extreme, it is possible to argue that the seabed and subsoil of all of the world's oceans have been potentially divided up by application of this median line principle.

Several arguments, however, can be made against this result. First, the Article 1 definition refers to submarine areas which are adjacent to the coast. Professors Myers McDougal and William T. Burke find in the word "adjacent" an imprecise but nevertheless firm conclusion that the continental shelf regime does not include all the vast areas of the deep oceans.

A second argument against the median line

62. Dr. Garcia-Amador, one of the most distinguished Latin American experts in the field, states unequivocally that the formula adopted in the Dominican Republic was designed to place all coastal states on an equal footing with respect to the submarine areas adjacent to their respective territories. Garcia-Amador, Exploitation and Conservation of the Resources of the Sea 107-08 (1959). Those who are suggesting the addition of a distance criterion to determine the outer limit of the continental shelf are basically concerned with the same problem of unequal distribution which led to the 1956 Inter-American formula.

63. McDougal & Burke, The Public Order of the Oceans 685-89 (1962). However, the word “adjacent" could also be interpreted as merely establishing the fact that the submarine areas over which a state has sovereign rights must commence at its own coast. From a purely mathematical point of view, the adjacency of one surface or object with another is not dependent upon the area or volume of either.

theory is that the extreme result which would occur by applying it could not have been intended. For example, if median lines were drawn, certain small and relatively insignificant Pacific islands-many still under European rule would acquire huge portions of the world's seabed and subsoil. Indeed, if a median line principle were used to divide the oceans of the world, the best theoretical situation for making an extensive claim would be that of an isolated island located at a great distance from the nearest land on all sides.

The third argument against such an application of the median line principle is that the term "continental shelf" was intentionally retained. In this respect, the International Law Commission, which drafted the Convention, explicitly stated that although some deviation from the geological meaning of the term "continental shelf" was justified, the term should not be replaced by the more general term "submarine areas." The commission felt that the term "submarine areas," used without further explanation, would not give a sufficient indication of the "nature of the areas in question." 64

The fourth argument is that the records of the 1958 conference do not reveal that the framers of the Convention intended to divide up all submarine areas of the world.65 The multifarious practical as well as legal problems connected with such a division were simply not addressed at all. They were left for another day. It would therefore seem that the legislative history we have concerning the effect of the "exploitability” test is inconsistent with the theory that the regime of the continental shelf extends to a median line in the deep oceans.

This question is not entirely academic. The Interior Department, on the basis of the exploitability test, has already granted exploration permits for areas at depths exceeding 1,500 meters. It has granted oil and gas leases for areas at depths up to 500 meters, and has granted phosphate leases even beyond that.

64. Int'l Law Commission Report, supra note 57, at 42. Since the physical composition and location of the areas in question as "seabed and subsoil of the submarine areas adjacent to the coast but outside of the area of the territorial sea" was already identified in the definition, the "nature of the areas in question” is a rather clear reference to the seaward extent of these areas. 65. However, opponents of the exploitability test did point out that this could be the logical result of the language used. See Statement by Mr. Samad (Pakistan), 6 Official Records, U.N. Conference on Law of the Sea 19 (A/Conf.13/42) (1958) (hereinafter Off. Rec.); Statement by Mr. Fattal (Lebanon), id. at 38; see also Statement by Miss Whiteman (U.S.A.), id. at 19.

However, in an operational sense the questions still lie largely in the future. The only extensive mineral exploitation being conducted at this time is offshore oil drilling. The deepest producing well we have is at a depth of 285 feet, which is less than halfway down to even the 200-meter line. Where hard minerals are concerned, we have not yet even begun any significant mining from the seabed in depths approaching 200 meters. We can assume that any such mining will be conducted only at shallow depths at least for the immediate future.

Furthermore, the very geography of the continental shelf and its slope contains inherent limitations on our activities in the near future. After the 200-meter mark, the slope of the seabed generally becomes markedly steeper. This is reflected by the fact that the percentage of the earth's surface represented by submarine areas at a depth of 0 to 200 meters-about 8 percent is approximately the same as the percentage of the earth's surface lying at a depth of from 200 to 2,000 meters. It will be quite some time before economic exploitation at such depths becomes, as we say, "cost effective." We measure our effectiveness in feet when in the deep oceans we are confronted with miles.

This was the real genius of the Continental Shelf Convention. It solved most of the problems at hand and, by adopting the exploitability test, assured that no major revision would be needed for quite some time. Any international disputes are likely to occur in the near future with respect to areas at relatively shallow depths near a coast. The median and equidistant line principles were specifically drafted as solutions to such problems. Since most of the legal principles with respect to the demarcation of such boundaries have been established, international disputes on these questions fortunately acquire more of a technical than a political flavor. Thus, although there is some dispute as to the applicable principles, it is not at all surprising that Germany and Denmark, and Germany and the Netherlands, have recently agreed to submit questions regarding the location of their respective continental shelf boundaries to the International Court of Justice.66

66. Special agreements of February 2, 1967 submitting the dispute were notified to the Court on February 20, 1967. Letter of submission and text of Danish-German agreement are translated in 6 International Legal Materials, supra note 4, at 391. On August 21, 1967, the Registry of the International Court of Justice announced that the Federal Republic of Germany had filed its memorials in each of the North Sea continental shelf cases, and that the counter memorials of Denmark and the Netherlands are to be filed by February 20, 1968.