of the regime or of its promoting nation, the United States. It might well involve types of extensive coercive action not permitted under contemporary international law in order to obain the compliance of non-signatory states.

These assumptions underlying the United States draft become all the more unpalatable when we may have legitimate doubts as to whether a requisite two thirds majority could be mustered behind its terms, or behind the terms of any general law of the sea convention, by 1974. Furthermore even if the proposed 1974 conference did produce a convention, years would still pass, as we know from the time lag after the 1958 Geneva Conventions on the Law of the Sea, before it could formally come into force. Accordingly, there is a need to put various proposals for regimes into perspective, and to view them against the background of the present general international law governing deep seabed mining activities, not only because this may well provide the basis of an interim regime, but also because it would determine the contours of possible international regimes which could come into existence in the absence of an international constituent convention or even in the absence of international regimes arising out of the interactions of reciprocating domestic regimes-for example that contemplated in the proposed Deep Seabed Hard Mineral Resources Act.3

II: INTERNATIONAL LAW AND RIGHTS OF POSSESSION

International law has developed only hazy concepts of possessory rights. On the one hand, the doctrine of occuption serves to justify the acquisition of masterless territory by states so that extensive tracts may be taken through acts which are not felt throughou he whole region, while on he other, that same doctrine is usually cited to limiting the taking of fish or animals only to those things which have been reduced to the taker's complete control. Thus in the Status of Eastern Greeland Case1 the Permanent Court of International Justice recognized that in thinly populated and in uninhabited areas very little in the nature of possessory control may be required. In that case Danish acts of sovereignty which had mainly been performed in the western and southern regions of Greenland were held to have been sufficient to have excluded Norway's claim from the northeastern coastal area of that vast plateau of ice. By contrast with this extensive view of occuppation when dealing with states" claims to acquire territory, the same doctrine, when applied to animals, fish or such inanimate objects as jewels, banknotes, or bundles, is seen by many as having far stricter requirements of effectiveness. This strictness is illustrated by the following quotation by Grotius from Plautus:

"[W]hen the slave says: The sea is certainly common to all persons', the fisherman agrees; but when the slave adds: "Then what is found in the common

2 For a criticism of the U.S. Draft from this standpoint see Jennings, The United States Draft Treaty on the International Seabed Area-Basic Principles, 20 Int'l & Comp. L.Q. 433 (1971) [hereinafter cited as "Jennings"]. Note id. at 453 where the author concludes his criticism of the U.S. Draft, after pointing out that its "paper universality" is of "doubtful pedigree" in the following terms: "There is surely more hope for an international regime that third States can, and indeed must, live with, or rather live alongside, than for one that third states, which to exploit what the present law regards as their exclusive resources, are almost compelled to defy; for in such a contest it is by no means clear that the novel international regime would prove the stronger."

The thrust of the article which follows is to investigate the contours of such a regime which would govern the relations of states, with respect to deep seabed resources, both anterior to the coming into being of a proposed treaty regime. It would also govern, after that point of time, the relations of states living "alongside" the treaty regime, both among themselves and with the states participating in that regime.

3 S. 2801, 92d Cong. 2d Sess., H.R. 13904 92d Cong. 2d Sess., now H.R. 9, 9rd Cong. 1st Sess.

4 [1933] P.C.I.J. Ser. A/B No. 53. See also, Clipperton Island Arbitration, 26 Am. J. Int'l L. 390 (1932); and Palmas Island Arbitration, 2 U.N.R.I.A.A. 829 (1928).

sea is common property,' he rightly objects, saying: 'But what my net and hooks have taken, is absolutely my own"."

5

Grotius also pointed out that while states and individuals are not permitted to assert dominion over the air and sea which are "common" or "public", such masterless things as wild animals, fish and birds may be reduced to possession "[f]or if any one seizes those things and assumed possession of them, they can become the objects of private ownership."

ва

If a regime were established to govern the exploitation of seabed hard minerals along the lines of the primitive concept of possession which Grotius, some three and a half centuries ago, thought adequate to protect the rights of fishermen, there would be a free-for-all on the seabed which would be most, counterproductive for the industry. While it would appear that only four companies are currently interested in mining seabed resources, they could engage in races for choice sites and in attempts to exhaust them before their discovery from competitors. Such an uncontrolled state of affairs would bring in its train the further unedsirable effects of overcapitalization and cause wild market fluctuations and affect the world market price of the affected hard minerals, not only with respect to the ocean floor resource, but also with respect to land-based resources as well. Briefly, the problems and disasters of the West Texas oil fields of the early twenties could be repeated in terms of affected hard minerals.

Secondly, the acceptance of a primitive right of capture could put titles to minerals won from the floor of the deep ocean in jeopardy, since some states may consider one corporation to be the finder, and hence the "true owner", of minerals placed in commerce, while other states may recognize a prior right to those minerals as enuring to some other enterprise, leading to a situation of irreconcillable contradictions.

It is not necessary, at the present time, to accept Grotius's theory of possession, nor the "free-for-all" regime to which it gives rise. Possessory rights to deepsea floor minerals could be seen as stemming from another theory of possession. This might be viewed, possibly, as a rejection, in terms of general international law, of the limited notion of the acquisition of possessory rihts which the Grotian theory requires, or alternatively, as a special customary view of possessory rights over minerals in situ governing the mining industry in the absence of state, national, or international legislation. Should the latter view prevail, the special customary regime would then operate to exclude Grotius'sprinciple of possession for purposes of mining hard minerals from deep ocean floors, although it would still be held to prevail in all other aspects of the general international law governing the acquisition of moveable property.

A. A Reexamation of possession

In discussions of gaining possession, as distinct from establishing continuance in possession,' international law and domestic law systems have tended to focus, possibly unduly, on the relation of the possessor with a single item rather than with a collection or group. This, in turn, has led to the development of theses stressing the need for a specific, immediate and active control by the possessor

5 Grotius, Freedom of the Seas 29 (McGoffin transl. Carnegie Endowment for International Peace 1916) [hereinafter cited as "Grotius"].

6 Id.

Ba Two United States corporations are currently interested in mining hard minerals from the floor of the deep ocean, namely Tenneco Corporation and the Hughes Tool Company. One German and one Japanese company are in the process of formation, the latter with the generous support of very extensive government financing.

7 For this distinction see Holmes, the Common Law 215-16, 235 (35th Printing 1943) [hereinafter cited as "Holmes"].

over the object possessed. A reexamination of some of the cases from the Anglo-American common law, which have long agitated differences among lawyers, may illustrate, in terms of familiar subject matter, the misleading effects of that focus and that stress.

A note of caution, which may not be necessary, should be sounded ex abundantia cautela. The cases of the common law on possession are not discussed because of any pretended international authority that may be imputed to them. On the other hand, they do illustrate universal problems. Furthermore Mr. Justice Holmes tells us that while the "theory of possession has fallen into the hands of the philosophers," he claims for the common law "that it is important to show that a far more developed, more rational, and mightier body of law than the Roman, gives no sanction to either premise or conclusion as held by Kant and his successors.". Finally, we may follow the practice of jurisprudential writers when dealing with possession, of drawing on philosophers, civilians and common law sources without discrimination, except insofar as this may be demanded by the development of argument and the clarification of definitions.

10

We may now ask whether the focus of attention on the possession of a specific object and on the need for the direct exercise of power over that object is, indeed, called for by the cases usually cited in support. The well-known cases of Young v. Hitchens and Pierson v. Post have already been adverted to." It should be noted that counsel for the plaintiff in the former case argued that in the whaling industry for example appropriation was considered to be complete when "fairly proceeding towards accomplishment". At that point, the possessor's intent is clear and his control so manifest as to be entitled to protection. The Queen's Bench, however, relegated this thesis to situation where special custome govern. And this has become conventional wisdom. But is that wisdom congruent with the explanations usually offered for reconciling Bridges v. Hawkesworth 12 with McAvoy v. Medina? 13 In the former case a customer in a shop who, before the shop-keeper knew of it, picked up a pocket-book which had been dropped onto the floor of the public part of the shop by another customer, could keep it as against the shop-keeper. In the latter, a barber was held to have a better possessory right than the finder to a pocket-book which had been left on the barber's table. The usual explanation offered is "a distinction between things voluntarily placed on a table and things dropped onto the floor" 1 on the basis that the former indicates "an implied request to the shopkeeper to guard it".15 Kincaid v. Eaton was a suit for a reward offered by the owner of a pocket-book. The claimant had found it on a desk installed by

14

8 Id. 216-19, 239, 245.

See, for two common law examples (one English and the other from New York), Young v. Hitchens, 6 Q.B. 606, 115 Eng. Rep. 228 (1844) (notwithstanding a verdict the other way, the Court of Queen's Bench decided that when pilchards were almost entirely surrounded by a net, with an opening occupied by boats stationed there to prevent the fish from escaping they were not reduced to possession as against a strenger who rowed through the opening and caught them with his own net); Pierson v. Post 3 Cai. R. 175 (N.Y. 1805) (action does not lie against a defendant who shot and killed, in full view of the plaintiff, a fox being pursued by the plaintiff, who had originally started and chased it); Buster v. Newkirk, 20 Johns. Cas. 75 (N.Y. 1822) (when plaintiff had wounded and chased a deer-discontinuing the hunt at nightfall, the next day he resumed the hunt to find defendant had killed and appropriated the wounded deer, Pierson v. Post, supra, was held to govern).

9 Holmes 206.

10 Id. 210.

11 Supra, note 8.

12 21 L.J.Q.B. 75 (1851).

13 11 Allen (Mass.) 548 (1886).

14 Holmes 222.

15 Id.

16 98 Mass. 139.

a bank for the use of its customers and located in the banking chamber outside the teller's counter. Holding that the case did not involve the finding of a lost article, the court said that "the occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left."" Holmes suggests that, possibly, since the bank was a proper depositary of the article, the decision can be explained as only deciding "that the pocket-book was not lost within the condition of the offer." 18

21

A number of cases show how possession can be gained, recognized and protected when the lawful possessor's attention is not focused on the object. While it may be true that in such cases as Elwes v. Brigg Gas Co.1 and South Staffordshire Water Co. v. Sharman 20 the landowners' success in repelling the claims of finders when the articles in contention were embedded in the soil of the land may be ascribed to a difference between the standards for protecting the continuance of possession from those which have to be satisfied for its acquisition, there are other cases in which an entity with a special, ambient, interest is seen as having some special or quasi-possessory claim. Thus in Hibbert v. McKiernan a golf club was said to have a "special property" in golf balls lost by players which excluded any claim to them by a finder. It may be tempting to explain this case, which is clearly distinguishable from both the Elwes and the Sharman cases on the grounds of the balls remaining on the surface of the land, the relative recentness of the loss, or the presumed relation of the club to the players (these being its members or their guests) on the basis of policy. Kocourek offered this type of an explanation when he suggested that the matter: is, in the last analysis, simply a question of policy, which unfortunately is heavily obscured by a wholly irrelevant discussion of possession.2 Tempting as the charms of such resorts as this to touch one of "policy" may be, it is to be feared that they merely darken counsel. The word "policy" itself becomes meaningless as a legal concept. For after we have said that policy determined the cases we still need to show what that policy is. If an answer to that question is given we have at least a clue to the legal values and he legal principles involved. If, on the other hand, we merely shrug our shoulders and say that we should not attempt to verbalize any reconciliation of these cases in analytical terms because "policy" dictated their individual holdings, we are faced by a frank explanation that the decisions reflect "palm tree justice" rather than legal principles.

The submission here is not that an individualizing policy of determining each case on whatever merits judges and juries may feel to be inherent in each situation provides the premise of judgment, but rather that lawyers and writers have overlooked other important factors. For example, the explanation of the golf club's "special property" in Hibbert v. McKiernan may lie in the special relation of the players (as members or guests) and the club. Again, the special relation of banker and customer may well provide the explanation of Kincaid v. Eaton.

23

The slogan "special custom of the industry", has permitted courts to argue that cases falling outside the narrow limits usually envisioned for the acquisition of possession should be distinguished from those which they consider to reflect the necessary principles of possession in general. On the other hand, such a principle cannot be invoked to explain Hibbert v. McKiernan. And it would be less than satisfactory to assert, with Professors Dias and Hughes, that it merely reflects "the clear sentiment that dishonesty should not go un

17 11 Allen

18 Holmes 223.

19 33 Ch. D. 562 (1886) (a prehistoric boat embedded in the soil).

20 [1896] 2 Q.B. 44 (two rings buried in the mud of a pool).

21 [1948] 1 All. E.R. 860, [1948] 2 K.B. 142.

22 Kocourek. Jural Relations 389.

23 See, e.g. Young v. Hitchens, 6 Q.B. 606, 115 Eng. Rep. 228 (1844).

25

24

punished". Rather it points to the unsatisfactory restrictions of traditional theory and, going beyond McAvoy v. Medina and Kincaid v. Eaton, asserts that possession can be recognized as existing in a person who shows the intention and will to act as the possessor and also some exercise or diplay of such rights. The more liberal scope of possessory rights in the position stressed here emphasises a more inclusive rule that that to be found in the expressions of conventional wisdom. But it is necessary also to recall Holmes' apt illustration. "If", he wrote, "there were only one other man in the world, and he were safe under lock and key, the person having the key would not possess the swallows that flew over the prison."

B. Miner's rights

26

In the landmark case of Jennison v. Kirk Mr. Justice Field, a lawyer from California to whom the mining jurisprudence of that state and her neighbors was familiar, defined the rights of the miners to appropriate their discoveries. He said:

"In every district which [the miners] occupied they framed certain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provisions being made for different kinds of mining, and in drifts or tunnels. They all recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure all comers, within practicable limits, absolute equality of rights and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining, upon the public lands in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as the original owner, from whom time was to be traced." " This is an apt description of the rights of miners as they might appear to a Californian who may possibly be non-conversant with the practices and legal expectations of the European immigrants in the California gold fields. The rights of miners which these communities evolved did not spring, as many observers believe, fully articulated and "developed", from the turbulent mining districts. They have a long and unbroken history which can travel back to the Middle Ages, if not earlier. These customs have, for example, been long recognized as part of the Anglo-American common law," as well as of other legal systems. Thus the American Law of Mining tells us: "The strong influence of the common law on our mining law is apparent in many areas. The customs of the Derbyshire miners, as noted above, resemble the way in which we mark off lode locations, our exclusive surface rights of locators and even to some ex

24 Dias & Hughes, Jurisprudence 328 (1957).

25 This is an adaptation of the requirement, laid down by the Permanent Court of International Justice in the Legal Status of Eastern Greenland Case which asserted that a state claiming territorial possession must show "the intention and will to act as Sovereign and some exercise or display of such sovereignty", [1933] P.C.I.J. Ser. A/B, No. 53 at 46.

26 98 U.S. 453 (1878).

27 98 U.S. 453 458 (1878). See also Argonaut Mining Co. v. Kennedy Mining and Milling Co.. 131 Cal. 15, 63 Pac. 148, 150 (1900), aff'd 189 U.S. 1 (1903), where the Supreme Court of California tells us: "Some regulations as to mining claims sprung into existence naturally, in fact necessarily. First, so far as possible, each person was given a specified portion of the ground, which he could mine. Secondly, the allotment to each wes so limited that there should be no monopoly. So far as possible, all should have an equal chance. The right of the first possessor was preferred, but no matter was considered more important than the limitation upon the extent of the claims. And, thirdly, as a corollary from these two cardinal rules, the third follows: That each claimant shall mark plainly upon the surface of the earth the boundaries of his claim, that others may locate claims without interfering with him. . . .

21 American Law of Mining 2-6 (The Rocky Mountains Law Foundation ed. 1971) [hereinafter cited as "American Law of Mining"].

2 See Traynor J. in Ames v. Empire Star Mines Co., 17 Cal. 2d 213, 110 P. 2d 13 16, cert. den. 314 U.S. 651 (1941).