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Viewing the military history of the use of the sea strictly from a technological standpoint, the most difficult initial task was to achieve mere survival in the sea environment, i.e., achieving seaworthiness. Next came the need to achieve a technological capability for waging elemental battle, followed by the more difficult task of achieving the ability to board and capture. The 15th century saw the introduction of ships capable of traversing the world's oceans, and the 16th century saw the introduction of cannon with which to impede or arrest flight. The 19th century was characterized by the introduction of steam and, as a result, the option of maneuver and the ironclad vessel with defensive armor.
In this development of surface seapower through the 19th century, the dominant legal problems were those of piracy, privateering and sovereignty over the world seas. Initially sovereignty on the seas was only a theoretical concept since the meager ability to exist on the sea provided a concomitant freedom of the seas. Nevertheless, the sovereignty concept was advanced by almost every major seapower. The new power appeared in the form of Spain and Portugal, and in 1493, Pope Alexander VI issued a bull establishing a papal demarcation line which divided the world's oceans between Spain and Portugal along a longitudinal meridian located 100 leagues west of the Cape Verde Islands.45
The technology of the 16th century was, however, available to many nations, and in this period the English, the Dutch and the French were engaged in attempts to control the seas. At the same time, the technological feasibility of arrest at sea, board, and capture made piracy an attractive vocation and more importantly, privateering was attempted as an instrument of national policy.
The test of sovereignty over the seas was to be challenged both logically and pragmatically for almost 5 centuries. The legal theories found their most eloquent exponent in the Mare Liberum treatise of Hugo de Groot, or Grotius, in 1609, and the competing treatise, Mare Clausum, of John Selden in 1618.46 The pragmatic test was in the form of privateering com
missions evolved into the more sophisticated
In the face of the multi-century empirical
The stability of free use of the sea resulting from new technology and mutually imposed constraints continued through the latter part of the 19th and early part of the 20th centuries until disestablished by the introduction of the submarine. Now this new technology had reintroduced a capability for attrition of merchant ships.
As with any technological innovation, the positive potential for use of the submarine as an extension of national seapower outweighed any concern for the long-term and uncontrolled attritive aspects of mutual possession of submarines by hostile powers. In many ways, in its initial formulation, the submarine dilemma was repetitive of the dilemma of privateering.
The disarmament trends experienced after World War I resulted in a development hiatus such that the submarine in the initial days of World War II was not significantly advanced The World War II submarine was essentially & surface ship which was shallowly submersible for short periods of opportunity.
The technological maturity of the military submarine has therefore been a post-World War II development and consequently its technologi cal and legal impact has not been fully tested
of the difficulties encountered by the Royal Navy in attempting
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45. Brazil's status as the only former Portugaese colony in South
America is a reminder of the importance Spain and Portugal
attached to this, in retrospect, rather grandioso partition. 46. In response to Grotius' bold attack on behalf of the Dutch West
Indies Company, William Welwood also defended the English claims in 1613 in De dominio maris. John Boroughs added his voice in their defense in 1633 in The Sovereignty of the British Seas Proped by Records, History, and the Municipal Laws of this Kingdom, and Paolo Sarpi defended the Venetian claims in 1676 in Del Dominio del Mare Adriatico. 1 Oppenheim, Interna. tional Law 584–87 (8th ed. Lauterpacht 1955).
add to the vertical dimension, the development of hull form and hydrodynamics to radically change speed and maneuverability, the development of precise inertial navigation to provide ballistic missile launch capability, the development of underwater launch techniques to expand the use of subsurface-to-air weaponry, the development of acoustical quieting and detection techniques to place the detection and evasion problem beyond the technological or resource capability of an antagonist, the development of nuclear power to provide continuous submergence limited only by endurance of the crew, the development of nuclear warheads multiplying by many orders of magnitude the destruction delivery capability, and the development of missile technology extending the range of weapon delivery to include all points on the land mass. This total set of developments has provided one of the most unique strategic systems the world has yet seen—a system with the ability to utilize the environment continuously for concealment and to extend an assured destruction potential to all points on the land mass. This strategic deterrent capability adds to the greatly increased capability of the attack submarine in its more conventional role. These total capabilities are so difficult to counter from a technical standpoint that there is a strong temptation to seek legal solutions to the dilemmas so raised. Proposed legal solutions have attempted to differentiate between surface operation and subsurface operation, which is supposedly a differentiation between free use of the sea and innocent use of the sea. One "differentiation" is embodied in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.48 Article 14, paragraph 6, requires submarines to transit on the surface of the sea when in territorial waters.
The extension of this principle to the high seas has appeared in a number of arms control proposals. However, as yet, the positive advantage of the submarine force as a deterrent has far outweighed any present benefit to be offered by such schemes.
The deployment of strategic systems, such as the Fleet Ballistic Missile, to the limits of the territorial sea is permitted by the present law of the sea. At the same time, the law permits potential opponents to attempt to locate their antisubmarine forces in close and dangerous proximity to this submarine force. The design of the submersible to make this task technically infeasible is a major element in the design of the U.S. Navy's Fleet Ballistic Missile Submarine
System. To date, and in the foreseeable future, no threat to this aspect of system invulnerability can be seen on the horizon. The symmetric problem of protection of the United States against ballistic missile submarines of a potentially hostile power is consequently of the utmost technical difficulty for the antisubmarine warfare systems designer. This results in an ambivalent projection of the ultimate result in terms of submarine/antisubmarine technology. Fortunately, there is a marked asymmetry in the geopolitical/geologistic ability of presently identifiable, potentially hostile powers, which gives hope that the United States will be able to maintain the invulnerability of its strategic submersibles and, at the same time, be able to detect and counter any submarine threat, strategic or tactical.
If this technological condition is realized, and the projection of technology for the foreseeable future is that it will, then the best interests of the United States would be served by a continuance of the freedom of the seas doctrine, at least in the regions of the ocean in which these systems will operate.
Any projection of the law of the sea with respect to submersibles must take into account that future technology will add complications not now evident. Some changes of potential legal significance that can be anticipated may stem from the development of submersibles which can be classified under any combination of the following:
(3) designed to operate principally at very deep depths
(4) able to operate primarily at or on the bottom
(5) unpowered and serve as underwater barges or semimobile stations
(6) low-cost and thus available to a rapidly expanding number of users.
The first of these items has been generally overlooked in the extension of maritime law to cover submersibles. Indeed, to date, virtually all submarines on the high seas have been military submarines. Those few nonmilitary submersibles of significance-Trieste, Archimede, Aluminaut, Deep Star, Asherah, Soucoup, and Cubmarine, have, so far, been accompanied by surface ships and clearly identified during their operations at sea. This will not be true in the future.
The Grumman Aircraft Company is now constructing a submersible of substantial tonnage which will drift, untended by surface craft, in
48. Supra note 6.
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52. Compare art. 2, par. 1, with art. 5, par. 8 of the Continental the Atlantic Gulf Stream. The Aluminaut is al fine distinction has been made between sedentary ready capable of such operations. The U.S. Navy is building the nuclear-powered submarine,
and free-swimming fish with respect to their NR-1, for ocean engineering and research. The
habits during the harvestable period of their
life. Those that are “either immobile on or under Soviet Union is building the Benthos 300, a large semifixed submersible for scientific research,
the seabed, or are unable to move except in con
stant physical contact with the seabed, or the which does not require a surface tender. The soil” are resources of the shelf; those that are proliferation of such vehicles, until they consti not in contact are not.51 Some submersibles have tute a substantial percentage of the submersibles already been outfitted with wheels. Notable at sea, will create many unresolved and, as yet, among these is the Aluminaut which has conunforeseen problems. For example, the 1958 ducted an extensive tract on the coral bottom Geneva Convention on the High Seas stipulates off the coast of Florida. Little thought has been rights and duties which differentiate between a given to the question as to whether a research merchant vessel flying the flag of a recognized submersible of state "x" is "exploring the consovereign, a merchant ship which refuses to tinental shelf of state "y" when its wheels come show its flag, and warships which bear external in contact with the soil.52 The answer to this distinguishing marks.49 The extension of this question ultimately may either establish or deny law to submersibles would require a capability the rights of state "x" to employ its "bottom for identification of submersibles. It is difficult touching" research submersibles in the shelf to see how a "warship” which "encounters a areas of state “y.” 53 foreign merchant ship,” which happens to be a The rights and duties of submerged vehicles submarine, determines whether the subma with respect to installations for exploiting the rine is "flying a foreign flag or refusing to show resources of the seabed and the rights and duties its flag,” is “engaged in piracy,” or is “engaged of the seabed exploiters with respect to the in the slave trade." At the present time, the ap vehicle have yet to be adduced. This has not yet parent legal presumption is that all submersibles been determined in even a municipal context. At are warships having "complete immunity from present, the burdened party could be interpreted the jurisdiction of any state other than the 'Flag to be the exploiter of the seabed, if literal conState'.'
struction is given Article 5, paragraph 1, in the Even if a technique for ascertaining the 1958 Convention on the Continental Shelf, identity of a "merchant" submarine is agreed which specifies: “The exploration of the conupon, many of these vehicles will be designed to tinental shelf and the exploitation of its natural operate away from the surface except in dire resources must not result in any unjustifiable emergency and will be designed to operate (as interference with navigation. It is hard to the Aluminaut) at great depths. It will be im imagine, however, that the presence of the practical or dangerous for them to surface vehicle would not impose a greater interference either for identification, or to demonstrate "in to the shelf installation than the installation to nocent passage." Thus, the differentiation of the vehicle. The situation is not unlike that of military and nonmilitary, submersibles, bellig aircraft which fly over some terrestrial installaerents, neutrals and noncombatants will be ex tion at low altitude. Unless such flight results as tremely difficult. Nor can it be anticipated that a necessary aspect of take-off or landing, the airall nonmilitary submersibles will be engaged in craft must fly at a sufficient height to avoid lawful activities. Small submersibles with long substantial interference with the enjoyment of submerged endurance, as might be provided if the real estate. It is not unreasonable to prea successful fuel cell is developed, would be ideal
sume that parallel regulations will someday be for illicit trade in drugs, alcohol and other high applied to the problem of undersea installations. cost-per-unit-cube items of regulated commerce. Article 5, paragraphs 2-8, of the same conven
The ability to operate at or near the bottom tion have taken the first step in this direction poses many potential problems, particularly in by authorizing the creation of safety zones international waters above the continental shelf. around continental shelf installations. This problem in another form has already been Not only will commercial submersibles opraised in connection with fishing rights. Here a erate on or above the continental shelf, but many
51. Continental Shelf Convention, supra note 7, art. 2, par 49. High Seas Convention, supra note 5, arts. 8 and 22. 50. Some awareness of the problems raised by this presumption was
See discussion supra at notes 30 and 36. indicated in the preparation of the articles on innocent passage
Shelf Convention, supra note 7. by the International Law Commission. See discussion infra at
53. Compare id. art. 5, par. 1 with art. 5, par. 8. notes 88 and 89.
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will be capable of operating at very deep depths and, as such, will be capable of exploring the deep ocean bottom and exploiting its natural resources. It has been amply clear in the literature that the Convention on the Continental Shelf did not contemplate the extension of sovereignty for the purpose of exploitation to the deepest parts of the sea.5+ If it had, the relatively trivial depth of 200 meters would assuredly not have appeared in its definition. How then will this growing undersea capability be turned to the benefit of the nation or social unit which owns the vehicle or vehicles capable of such exploitation?
It has been suggested by some that the problem of deep ocean mining is remote and that exploiters will be relatively few. The presumption here is the projected high cost for vehicles and equipment designed to operate on the ocean bottom. On the contrary, although they do not exist at present, it is contended that low-cost vehicles capable of exploitation are technologically feasible and will be realized within the next 2 decades. This projection is based on three fundamental premises: one, that deep submersibles of the future will operate independently of the free surface; two, that materials for deep submergence will ultimately be less expensive than material now in use for relatively shallow submersibles; and three, that free-flooded, deep ocean machinery will have been developed. It has come as a surprise to the uninitiated, and even to some professional naval architects, that at present the major investment cost of deep submersibles is in the surface ships and surface support systems now required for their operation. This is presently the case because, except for static pressure, the greatest forces and most dangerous dynamics are at or near the surface and its attendant wave system. At a few hundred feet below the surface, such forces as the "slamming” impact of the ship with the free surface, or the “slap” of waves breaking over the ship, or the impact due to relative movement of vehicle and mother ship disappear. When these factors are eliminated from design, the resultant simplicity and the elimination of heavy superstructure greatly reduce the cost of the submersible. When technology provides the submersible with long endurance through the fuel cell or chemically generated thermal energy, then it need only submerge and emerge in the sheltered waters of a harbor in the same manner as aircraft take off from and land on carefully designed airfields. The result
ing elimination of the need for surface support for the submersible will provide the greatest cost reduction in the system's operation.
The second great potential for rapid development of deep submergence capabilities lies in the materials used. Much has been said in the past about the promise of glass and ceramics for use as a low-cost hull material. Slow, but perceptible progress is being made in this field. The Corning Glass Company is, at present, fabricating 54-inch-diameter hemispheres whose ultimate use is intended by the Naval Ordnance Test Station. Conceptually, an extremely low-cost deep submersible could be constructed utilizing the propulsion principle embodied in the Convair experimental vehicle "Whisper," together with a glass, aluminum or ceramic hull. Such a vehicle is propelled like a glider commencing its trip in a slightly negatively buoyant condition and returning to the surface by release of weight or the expulsion of ballast. Glide paths of 15:1 are easily achieved and, as a consequence, transits in excess of 100 miles are possible in a single cycle.
The third reason for concluding that operations in the deep sea are soon to be within our reach is the development of free-flooding machinery. Such equipment has indeed been built and employed on such vehicles as the Bathyscaphes and other deep submersibles. It is, at present, expensive and unreliable. A costly development program, however, is being initiated for such machinery. At the conclusion of this program we should see a commercially available capability for tethered, unmanned vehicles capable of exploiting the deep sea.
The vastness of the ocean suggests that interaction and conflicting uses between such vehicles or competition for resources would be minimal. It is the nature of man, however, to congregate competitively at the site of another's success. This is so because of the reduction, no matter how slight, in the cost of initial discovery and survey and the reduction of the probability that the venture will be completely unsuccessful. This human behavioral aspect has been observed on dry land in the mining of gold and the prospecting for oil and uranium. It has already been observed at sea in the catching of fish. It may therefore be anticipated that the identification of an important mineral resource in the deep ocean or the known location of an object of interest (e.g., sunken ship, lost space capsule or re-entrant satellite) will result in congregation of competing entities.
Such congregation and interaction raise many other legal problems associated with
54. See intra Part IV.
ownership, reduction to possession, rules of the road, safety, escape and rescue.
With respect to rules of the road, safety, escape and rescue, the statutory authority for defining, promulgating and policing national or international regulations has not yet been determined. At present, Coast Guard certification of submersibles relates only to their behavior as surface ships.55 The U.S. Navy has developed a safety certification procedure to be employed on submersibles built by or for the United States Navy or which will be leased by the Navy. Such a policy ignores a large subset of commercial vehicles. Efforts are indeed proceeding to eliminate this deficiency. The American Bureau of Shipping, for example, is devising a construction standard to be employed in design and construction of submersibles, and proposals for remedial legislation for commercial regulation of submarine safety certification and rescue are in draft preparation.
In summary, the projection of deep ocean technology is such that, in the period beyond 1980, we may expect a significant proliferation of nonmilitary submersibles and low-cost equipment capable of operating throughout the water column at or on the bottom and capable of exploiting the seabed or the resources of the seabed.
As indicated above, the law of the sea, as it appears to have developed with respect to submersibles, makes an apparent presumption that submersibles can only be regarded as military vehicles. Adaptation of current rules of law related to nonmilitary surface craft may be unfeasible in application to nonmilitary submersibles. This is partly because of the technologically dissimilar nature of their functions and, particularly, because resolution of the rights and duties of submersibles will be dependent on the resolution of the more general right to enjoy the seabed and its resources.
The potential legal problems raised by the new class of submersibles may be matched by the legal challenges which could be raised by the introduction of man as a free swimmer to depths as great as 1,000 feet. This extension of man's capability results from the technique of saturation diving. This technique involves compressing the diver in an artificial atmosphere, usually a mixture of oxygen, nitrogen, and helium, within a chamber, until the ambient pressure reaches a level equal to the pressure of the water at the depth at which the diver is to operate and then maintaining the diver at the pressure for 48
hours, the time required for the dissolved gases in the diver's body fluids and tissues to reach an equilibrium. Once "saturated," the diver may make excursions of limited extent and duration to deeper depths, but may not make excursions safely to shallower water without a long and carefully controlled decompression. The capability to do useful and protracted work on the ocean bed requires, in addition, the technological capability to heat the swimmer or diver while he is in the water, a dry habitation or transfer chamber which he can occupy during nonworking hours under pressure, and appropriate tools and transport vehicles.
The physiological feasibility of such longterm human habitation on the ocean bottom was established by the Navy's SEALAB II experiment last year. Three teams of 10 men spent 15 consecutive days on the ocean bottom at the depth of 200 feet. One of the aquanauts spent 30 days consecutively at that depth and one spent 30 days cumulatively in two intervals of 15 days, separated by a 15-day interval.
SEALAB III will take place at a depth of 450 feet in the vicinity of San Clemente Island. Parallel efforts are being conducted by JacquesYves Cousteau in France and by Ocean Systems, Incorporated, and Westinghouse in the United States. Limited commercial exploitation of the concept of saturation diving has taken place on the East Coast and in the Gulf of Mexico. The success of these ventures points toward the extensive use of saturation diving for a wide variety of purposes.
It is now clear that a saturation diving capability will exist at depths greater than 200 meters and will be at least as great as 1,000 feet.
But, that is a possibility for tomorrow. Missions which today clearly fall within the exploration of the seabed and exploitation of its resources include: the use of saturated divers for the installation, inspection and repair of well heads for the extraction of oil, gas, or sulphur; the inspection, installation and repair of bottom installations for communication, navigation and geodesy; and the installation, inspection and construction of most platforms which extend above the free surface having a beneficial use to the coastal state.
While these activities are under the exclusive protection, control and jurisdiction of the coastal state, a number of legal problems will arise that do not, as yet, appear to have been resolved. One problem is certain to arise from the fact that it is not technologically feasible to conduct saturated diving operations on the hottom without serious impairment of the naviga
55. See 70 Stat. 151-54 (1956), 46 U.S.C. 89 390-390g (1964).