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Nevertheless, the ultimate problem of an outer limit to the continental shelf regime remains. In a literal sense, this problem can be approached from two sides. First, the leasing authorities of a coastal state have no definite idea how far out to sea they can continue to exercise jurisdiction over resources. However, the sharp incline of the continental slope makes this question less pressing than it may appear. The second problem is one facing those who are looking beyond the continental shelf regime to a separate and unique regime of the seabed and subsoil of the deep oceans. These people must know how far in they can go-in other words, how close to land a deep ocean regime can come without overlapping the regime of the continental shelf.

Of course, if the exploitability test is interpreted as having prospectively divided up the resources of the seabed and subsoil of all the oceans, then there is no deep ocean regime to worry about. However, if we assume that the regime of the continental shelf ends somewhere along the continental slope before the great ocean depths-at 500 meters or even at 2,500 meters-then the vast area of the seabed and subsoil beyond those depths is subject only to whatever customary law may now exist.

The deep oceans are, of course, not beyond the reach of the general principles of the international law of the sea. Nor is there a total absence of legal precedent regarding these areas. It should be remembered that Great Britain's claim to oyster beds under the high seas was first asserted in the last century. Although today such beds are clearly subject to the regime of the continental shelf, up until 1945 there would have been no reason to assume that the legal rules applicable at shallow depths, where the oyster beds lay, were any different from the rules applicable to the seabed and subsoil of the deep

oceans.

It is quite significant that Great Britain's claim on the basis of long and continuous occupation by the coastal sovereign was generally accepted by international lawyers.67 Indeed, Britain's arguments were more or less based on well-known legal concepts of prescriptive rights, concepts which are inherent in the related and now codified doctrine of historic bays. Whatever our attitudes toward this and similar precedents, it is clear that their unattenuated general application would be fraught with difficulties. Nevertheless, these precedents are being exam

67. See Colombos, op. cit. supra note 42, at 159-60. The Bey of Tunis asserted such jurisdiction over sponge beds under the high seas in the 19th century. Id. at 161.

ined in depth in order that their implications for the future may be better understood.

There is also the question of what protection can be afforded those who conduct exploitation activities in the deep oceans. Part of the answer lies in a basic principle of the customary law of the sea that every state has the right on the high seas to control and to protect activities under its flag or nationality. When an American-flag vessel ventures onto the high seas, it remains under United States control, and it certainly enjoys the full measure of United States protection. No one would venture to suggest that the United States has no legal right to prevent an attack on an American-flag merchant vessel on the high seas. The same protection may be afforded exploitation activities even if they are not conducted on a vessel.

Suggestions that deep ocean activities by private individuals or corporations are beyond the control or protection of any state are utterly without foundation. It is precisely the absence of territorial sovereignty on the high seas that gives the state of nationality its full measure of jurisdiction. There would be nothing shocking in an announcement that a state will protect the lawful deep ocean activities of its nationals.

A specific example, which applies these historic principles and which may have application by analogy, is found in the United States Statutes. The rather inauspicious example to which I am referring is the Guano Islands Act of 18 August 1856, which continues in force today.68 Section 1 of the Act provides:

Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peaceful possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States."

The Act gives to the discoverer the exclusive right of occupying such island for the purpose of obtaining guano.70 It provides further that offenses or crimes committed on such island shall be deemed to have been committed on the high seas, on board a merchant vessel belonging to the United States, and shall be punished according to the laws of the United States relating to such vessels." The President is authorized, at

68. 11 Stat. 119 (1856), 48 U.S.C. §§ 1411-19 (1964). 69. Id., 48 U.S.C. § 1411. The word "appertain" was again used by Congress in defining the term "outer Continental Shelf” in section 2 of the Outer Continental Shelf Lands Act. 67 Stat. 462 (1953), 43 U.S.C. § 1331 (1964).

70. 11 Stat. 119, 48 U.S.C. § 1414.

71. 11 Stat. 120, 48 U.S.C. § 1417; see 18 U.S.C. § 7(4) (1964).

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Meanwhile, a healthy and welcome debate on the future legal status of the oceans has begun. The idea of placing the seabed and subsoil of the deep oceans under international ownership and control is very appealing to some. Others would not go this far, but would create some sort of international registration or licensing mechanism. The proponents of such measures argue that some form of international ownership or control is necessary to resolve the conflicts that they feel will inevitably arise. They maintain that it is vital to resolve problems of conflicting use before they arise and before there are any vested economic interests in the deep oceans.

As we have tried to point out, however, the problem of conflicting use is not new to the high seas. As specific problems have arisen, specific solutions under international law have been devised to provide for an accommodation of interests. Lying behind these specific rules is the general rule of customary international law that one use of the high seas may not unreasonably interfere with other lawful uses."

The international rules of the road are a classic example of establishing specific rules governing the possible conflicting use of the same area of the high seas within the framework of the general principle of reasonable accommodation of uses.75 In essence, the right of way accorded certain vessels or classes of vessels represents a limited designation of one use as paramount to another, for a limited time, in a limited area, and under specified conditions."

72. 11 Stat. 120, 48 U.S.C. § 1418.

76

73. See Statement by Mr. Rosenne (Israel), 6 Off. Rec., supra note 65, at 18.

74. See High Seas Convention, supra note 5, art. 2.

75. See International Regulations for Preventing Collisions at Sea, 1960, in force Sept. 1, 1965, 16 U.S.T. 794, T.I.A.S. 5813. 76. The object of the rules is to protect the lives and property of all with a minimum of inconvenience. No policy judgment concerning the inherent superiority of one use over another is involved. The rule that vessels not engaged in fishing must keep out of the way of vessels engaged in fishing can be justified on the grounds of relative convenience and not any inherent superiority of fishing over navigation. Id., rule 26, 16 U.S.T. at 808. The rule is, in any event, tempered by the qualification that it "shall not given to any vessel engaged in fishing the right of obstructing a fairway used by vessels other than fishing vessels." Ibid.

The accelerating construction in the high seas of fixed installations resting on the continental shelf and extending above the surface signals the emergence of a new class of oceanic user. While the conflicting uses contemplated by the rules of the road are primarily transitory, here a more or less permanent occupation of a given area by one user is involved. It is not surprising that the general rules of accommodation of users have been employed to cover this new situation.

The Convention on the Continental Shelf provides that shelf installations must not cause any "unjustifiable interference" with navigation, fishing or conservation." The rule is rendered quite specific by permitting the establishment of a 500-meter safety zone around installations which all ships must respect; 78 by requiring notice of construction and permanent means for warning of the presence of shelf installations; 79 and by prohibiting the establishment of installations or safety zones "where interference may be caused to the use of recognized sea lanes essential to international navigation." so The only detailed application of the "reasonableness" rule in this Convention is with respect to the conflict between two "permanent" uses-that is, the conflict between fixed installations and recognized sea lanes. It would appear-quite logically under the convenience test-that transitory uses must generally accommodate themselves to pre-existing permanent installations.

These specific rules regarding conflicting use arose in response to identifiable problems. The continental shelf is relatively shallow and the oil rigs in use were clearly obstructing the surface. By regarding navigation in recognized and essential sea lanes as a permanent pre-existing use, a meaningful accommodation of existing conflicts between different types of uses was reached.

It is vital to note that the Continental Shelf Convention did not sacrifice the hard-won freedom of the seas. The Convention does not accord the coastal state sovereignty over the adjacent continental shelf but only "sovereign rights" in its mineral and biological resources. The legal status of the superjacent waters as high seas is not affected by the extension of coastal state control over the shelf. What this means is that we have two different systems of jurisdictional organization coexisting in the same geographical column-one on top of the other. In the seabed

77. Continental Shelf Convention, supra note 7, art. 5, pars. 1 and 2. 78. Id., art. 5, pars. 2 and 3.

79. Id., art. 5, par. 5. 80. Id., art. 5, par. 6.

and subsoil, we have the regime of the continental shelf. This regime is similar to-but distinguishable from-the system of territorial jurisdiction which exists on land.81 Above the continental shelf, we have water and airspace which are still governed by nonterritorial principles of jurisdiction which have traditionally applied on the high seas. Thus, the Continental Shelf Convention adopted a functional approach. The coastal state was accorded jurisdiction only for the limited purpose of exploring the shelf and exploiting its resources. The coastal state was not given any other rights which are usually associated with territorial sovereignty. It is still too early to tell whether this system of functional jurisdiction will survive. We are both hopeful and optimistic that it will, for it preserves the historic uses of the high seas and at the same time meets the emerging need for a rational system of resource development.

At present we really do not know whether exploitation activities beneath the deep oceans will be self-sustaining or will require permanent surface support. As previously indicated, the Navy at this moment is attempting to liberate its deep oceans research operations from such sustained surface support. The few support vessels presently being stationed over deep oceans research activities certainly present no serious conflict-of-use problems. Indeed there are precise international navigation rules in being with respect to vessels which are not underway. Except perhaps with respect to the problem of dumping from the surface, it is not possible to predict at this time whether any significant conflict of use between deep ocean exploitation and surface operations will ever develop.

Assuming the remote possibility that a conflict between two exploiters of the deep ocean floor were to arise in the immediate future, it is clear that such a controversy would be governed by international law. At the very least, the principle of freedom of the seas would apply. It has been accepted by seafaring nations for centuries that freedom of the high seas shall be exercised with a reasonable regard to the inter

81. In this initial attempt to deal with the seabed and subsoil under the high seas, the international community did not strictly apply either the res nullius or the res communis notions which have classically been put forth as the theoretical bases for the principle of freedom of the seas. Exclusive control by one state for its own benefit is inconsistent with a res communis concept. While such control by a single state upon effective occupation is consistent with a res nullius concept, Article 2 of the Continental Shelf Convention specifically states that the rights of the coastal state over the continental shelf do not depend on either effective or notional occupation. The exploitability test in Article 1 is only superficially similar to the more familiar test of effective occupation. Under Article 1, exploitation has the effect of vesting rights not in the flag state but in the coastal state.

ests of other states in their exercise of the freedom of the seas.

It would seem that reasonable prudence would require us to wait until the implications of the continental shelf experiment are better understood before plunging into literally uncharted seas. This is particularly true because no conflict-of-use problems regarding deep ocean exploitation are likely to arise at great ocean depths for quite some time. This is not to suggest that we sit by indefinitely and, for want of facing up to the problem, passively accept the extension of the continental shelf regime to the middle of the oceans. What is suggested is that, with the remote but possible exception of a few seamounts, actual oceanic activities will not force us to make a final decision for a while. In the meantime we can give careful consideration to all the options, some of which are: coastal state control by extension of the continental shelf regime, coastal state administration without exclusive exploration and exploitation rights, national control under principles of effective occupation, complete control by an international sovereignty, limited international regulation by an existing or new international agency, or a combination of these.82

It is all too easy to be cavalier about a new deep ocean regime. Most of the seabed in question is covered by a mile or more of water. At first blush, it is not unlike talking about who will own the resources of the moon. Working in the high pressures at deep ocean depths is as much of a challenge to our ingenuity as working in the vacuum of space. As Commander Scott Carpenter has already revealed, our aquanauts require the same measure of skill, courage and determination as our astronauts.

But, the oceans are not outer space. And they are not Antarctica. They lie here at our feet. They are and have been for thousands of years essential to the communications, security, and well-being of most, if not all, of the people of the world. The fact that they are becoming even more important to all of us means that we should be more, not less, cautious about arriving at precipitous conclusions based on nothing more than preconceived assumptions. 82. Some proponents of international control have argued that monies accruing to the controlling international agency should be used as an independent source of revenue for the United Nations. It is noted that so long as there is no confiscatory or discriminatory "taxation," the distribution of revenues has no bearing as such on the right to exploit resources. Establishing a revenue base for the United Nations is not inherently inconsistent with either a national or international system for controlling deep ocean resources. Consideration of the wisdom of such proposals concerning revenues raises serious questions better suited to a broad discussion of national and international policies than to this discussion of the law of the sea.

PART V

PRINCIPLES OF

INTERNATIONAL LEGAL DEVELOPMENT

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

THERE IS AN unspoken sense of fraternity that binds all men of all nations together on the sea. This is reflected, incidentally, in the positive rule of international law requiring all to render all possible assistance in the event of emergency.83 In practice it has never been the absence of territorial sovereignty on the seas that has caused conflict, but rather the unjustifiable and unacceptable assertion of such sovereignty. At the very least, this should give us pause in considering the creation of a new legal regime before it has been convincingly demonstrated that the present regime does not meet our current needs. As Professor Griffin has observed, "The lesson of centuries of legal history is that law cannot be prefabricated in abstract codification." 84

We are indeed fortunate that the President, the Vice President, and the Congress itself are fully aware of the enormity and importance of the challenge presented by the oceans. Just last year, Congress declared it to be the policy of the United States

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Under this mandate, a Cabinet-level council 86 and a commission of experts 87 have been created for 18 months to conduct studies and develop the national oceanographic program.

As a result, there is intensive study of these problems going on in and out of government. Ideas are being developed and discussed. Exchanges between lawyers and scientists have become common. All of this activity will provide us with a much better understanding of what our immediate and long-term goals should be.

Scientists at home and abroad are approaching the oceans with unprecedented resources at their disposal and in unprecedented numbers. What they learn will be of benefit to all mankind-not only because we will know more about our planet, but because new knowledge will bring man even closer to controlling his environment and using it for his own benefit. As lawyers, we should support this scientific effort with such legal research and advice as may be necessary. But the scientists must remain in the forefront. If they have legal problems which require solution, we should provide such solutions as

85. Marine Resources and Engineering Development Act of 1966, 80 Stat. 203 (1966), 33 U.S.C. § 1101 (Supp. II, 1965-66).

86. The National Council on Marine Resources and Engineering Development, whose statutory members are the Vice President (Chairman); the Secretaries of State; the Navy; the Interior; Commerce; Health, Education, and Welfare; and Transportation; the Chairman of the Atomic Energy Commission; and the Director of the National Science Foundation. 80 Stat. 204, as amended, 33 U.S.C. § 1102.

87. Commission on Marine Science, Engineering, and Resources. 80 Stat. 205, as amended, 33 U.S.C. § 1104.

quickly as possible. However, in doing this, we should be very careful not to put legal obstacles in the way of future scientific developments.

There is a host of new scientific devices on the horizon which may raise new legal problems. Among these are the exotic new deep submersibles described earlier. One aspect of the new technology which has interesting legal implications is that some of the submersibles will not be able to navigate on the surface. This raises a problem with regard to their passage through the territorial sea, since submarines in innocent passage are required to navigate on the surface.88 What this means of course is that consent of the coastal state may be required before such a deep submersible can enter that state's territorial sea.

It is significant that the provision in the Territorial Sea Convention requiring submarines to navigate on the surface in the territorial sea was deliberately moved from the draft article on warships to the draft article applicable to all ships for the specific purpose of including nonmilitary submarines within the rule.89 If the mood of the 1958 Geneva Conference is any guide, it is likely that most states would be reluctant to permit any submersibles to enter their territorial sea submerged without prior consent.90 Even if there is a consent requirement for such deep submersibles, and even if this includes international straits, it is unlikely that deep submersible operations will be affected for quite some time to come.

The international law of the sea is not at present a legal environment hostile to scientific research. If anything, it is more favorable to the scientist than is the system of territorial jurisdiction which exists on land. On and in the waters of the high seas-and above them-the world's scientists are in essence free to roam at will. The same is clearly true of the seabed and subsoil beyond what remains a relatively narrow continental shelf.

In fact, a close examination of the Continental Shelf Convention and its background reveals a deliberate attempt by the nations of the world to keep the oceans open to scientists. The problem of resolving conflicts of uses has already been discussed. It has been pointed out that the Continental Shelf Convention by and large applies the customary test of reasonable accom

88. Territorial Sea Convention, supra note 6, art. 14, par. 6. 89. Int'l Law Commission Report, supra note 57, at 19.

90. The author (then Captain Hearn) was an advisor on the U.S. delegation to the 1958 U.N. Conference on the Law of the Sea.

modation or, in the Convention's language, "unjustifiable interference." There is one very significant exception. The Continental Shelf Convention expressly states that the exploration and exploitation of the continental shelf must not "result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication." " This particular language is found in an amendment drafted by Denmark.92 The Danish delegate stated that the word "unjustifiable" used to qualify the word "interference" was deliberately omitted because "interference with scientific research, unlike interference with navigation, fishing or the conservation of living resources, could not, in his opinion, be justified in any circumstances." 93 In this provision, the world's scientists received an unprecedented legal recognition not only of their right to conduct research on the high seas, but of the very special protection which they should be accorded because of the universal benefits to be derived from their work.

94

There is a stricter provision in effect for scientific research which concerns and is conducted on the continental shelf itself, for which the consent of the coastal state is required. However, the Convention specifies that the coastal state shall not normally withhold its consent.95 What this means is that the coastal state bears the legal burden of justifying a denial of consent. We should bear in mind that this provision applies directly to activities on the very seabed and subsoil in which the coastal state enjoys sovereign rights of exploration and exploitation.96

Only during the recent International Geophysical Year did the world's scientists enjoy anything approaching such a favorable legal and political climate on dry land. Indeed our extremely successful experience with the International Geophysical Year suggests that great benefits might be derived from establishing a permanent mechanism for international cooperation in oceanographic projects—perhaps under the auspices of the United Nations or one of its specialized agencies, such as the Inter-Governmental Oceanographic Commission.

We can already identify some scientific projects which would benefit from such cooperation.

91. Continental Shelf Convention, supra note 7, art. 5, par. 1 (emphasis added).

92. U.N. Doc. A/Conf.13/C.4/L.49 (1958), 6 Off. Rec., supra note 65, at 139.

93. Statement by Mr. Sorensen, Fourth Committee, 28th Meeting. April 1, 1958, 6 Off. Rec., supra note 65, at 82.

94. Continental Shelf Convention, supra note 7, art. 5, par. 8. 95. Ibid.

96. Id., art. 2, par. 1.

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