How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
Current diplomatic fashion tempts us to label 1974 the Year of the Sea. Negotiators from nearly every country are about to assemble in Caracas to revise comprehensively the principles and rules that have guided ocean affairs for several hundred years. The convening gavel at the Law of the Sea Conference, however, will signal both the denouement of intensive pre-Conference diplomacy and the arrival of the new era of ocean politics. The fashioning of a new public order for the oceans, adaptive to technological, economic and political developments now emerging, can hardly be accomplished by one conference or wrapped up in a single treaty. This effort will occupy statesmen for most of the remainder of the century, for it has become deeply entangled with the chronic international problems of the post cold-war period: reconciling national security requirements with the need to contain the arms race; finding rational, just and peaceful ways of allocating the world's supply of energy, food, and industrial raw materials; searching for syntheses between the competing demands of economic development and ecological care; narrowing the economic and political gaps between the poor and the affluent peoples; and, in general, managing the growing ability of nations to affect one another for ill or for good.
Increasingly, what happens in and to the sea will affect broad public interests. What has thus far been the concern of a small circle of officials, experts and interested private parties will more and more impinge on basic American foreign policy concerns. If an effective public-interest constituency is to coalesce around U.S. ocean policy, it will need to know more about how maritime developments are stimulating new international competition in the ocean, what issues are likely to dominate the bargaining at the forthcoming Conference, and what premises ought to guide longer-range U.S. policies.
Three basic factors will shape the process and outcome of the forthcoming round of negotiations.
First, ocean resources and space, accessible to more nations and private interests than ever before, are increasing dramatically in value. The rush for oil and gas resources is extending farther from shore and descending to greater depths; 18 percent of 1972 world oil production came from beneath the ocean, and at latest count some 134 petroleum companies were exploring off the shores of 80 countries. Deep-ocean deposits of copper, nickel, cobalt and manganese, found most abundantly in depths of 12,000 to 20,000 feet, are the ocean entrepreneurs' newest potentially profitable resource; as many as 30 companies and several governments have reportedly invested hundreds of millions of dollars in the development of exotic technologies for scooping nodules containing these minerals from the ocean floor. The growth of worldwide coastal fishing capabilities, plus the global reach of the technologically sophisticated fishing fleets of a dozen countries, has resulted in a catch of 70 million tons annually-in some instances depleting stocks crucial to the income of many coastal communities and to the protein intake of some 1.5 billion people. Navies continue to intensify their use of ocean surfaces and depths for deploying strategic and conventional capabilities. Aircraft crowd over-ocean traffic corridors, while commercial shippers are filling the sea lanes with bigger and faster vessels, moving in much denser traffic patterns and carrying larger amounts of energy products, raw materials and other bulk cargoes. Meanwhile, as marine scientists bug the ocean with sensors and data-transmission platforms, aquatic and submersible construction technologies are stimulating planning for permanent research stations, power plants, deep-water ports, airports and entire cities at sea.
Second, these multiple uses of the ocean cast serious doubt on the assumption that the ocean's resources are inexhaustible and that its natural processes are invulnerable to harm from human intervention. In addition to the threat to the sea's living resources from overfishing, concern deepens about the effects of pollutants being pervasively introduced into ocean ecosystems. Many come from man's direct activities in the ocean-dumping wastes, pumping ballast from oil tankers, accidentally spilling oil. But the bulk of ocean pollution is land-based. Sewage treatment plants generate outfalls, rivers and estuaries empty seaward, and atmospheric circulation transports materials such as mercury, lead and DDT throughout ocean space. How serious is all this? How much worse will it get? Some scientists still remain untroubled. But most admit to great uncertainty, and worry that damage to the marine environment may create potentially severe strains on important local, regional and possibly even global ecosystems. These strains can only increase with continuing worldwide industrialization and population growth.
Third, much of man's expanding ocean activity is highly concentrated in relatively near-shore areas. The most political fuss concerns the submerged real estate that geologists call the "continental margins." These margins are the undersea extensions of the major land masses, reaching to depths as great as 5,000 meters and stretching many hundreds of miles from shore in some areas. The margins angle toward the ocean floor in three progressively deeper gradients known as continental shelves, slopes and rises. Most of the world's 118 coastal states have margins, with some major exceptions such as the western shores of North and South America where the seabed generally plummets to the deep ocean from a very narrow offshore rim.
Although comprising only about 25 percent of the world's total underwater terrain, these margins are of immense significance, particularly the inner regions of the shelves and slopes, for all coastal and maritime interests. Some 80 percent of all commercial fish swim there. Nearly all potential hydrocarbon resources are located in margin deposits, leaving only the nodules and highly migratory fish as commercially attractive resources beyond the margins. Military acoustical devices and other hardware are hidden on margins around the world. Moreover, with populations concentrating more and more in the narrow coastal belts of many countries, the public interest in offshore aesthetics and economic activities can be expected to rise steadily. Altogether the most accelerated growth, and with it the most acute controversy and conflict, will continue to concern these continental margins.
Cumulatively, these three factors-rising value of ocean space and resources, awareness of ecological imperatives, and spatial concentration of ocean activities-are generating overwhelming pressures on all coastal states to consolidate control over the seabed and waters adjacent to their coasts. This push for national extensions seaward sharpens the historical collision between two grand doctrines of maritime order.
One of these traditional doctrines gives nations the right of dominion over the sea and its resources; the other insists that the sea be free of any dominion and open to use by all. Most states at one time or another have professed solemn allegiance to one or the other principle; in practice they have been applied with considerable fickleness by governments, as national interests in the ocean shifted.
Even in their original seventeenth-century formulations, the doctrines seem remarkably pertinent to aspects of today's clash between coastal and maritime interests. In the celebrated and historic controversy, the young Dutch lawyer Hugo Grotius took up the case for freedom of the seas, and the scholarly British jurist John Selden argued for the right of dominion. Grotius-philosophical, idealistic and theoretical-reached deep into Roman law to buttress his assertion that the ocean must be held free for common use. Nations may not exercise dominion because to do so would violate right reason, equity and nature. What he called the "boundless ocean" was indivisible, open and intangible. Its natural resources were infinite. Maritime freedom served the national interest, international public order and "the society of all humankind." (Today's ocean policy-makers will see much historical irony in the fact that Grotius' entry into the field of maritime law was triggered by a Dutch-Portuguese dispute over transit rights in the Strait of Malacca-one of the thorniest problems on the current agenda!) Grotius concluded that any contravention of free use of the seas, any denial of maritime liberty by one nation against another, was both unnecessary and morally unjustifiable, and could lawfully be countered by the use of force.
Selden-less concerned with abstractions, ideals and philosophy-argued his case more pragmatically on the strength of historical experience and the realities of state power and practice. For him the cardinal values were national safety and national self-interest. The right of dominion gave nations the right to exclude others from claimed portions of the sea, to prevent fishing, navigating, landing and "the taking of gems." Tolls and other restrictions of access could be imposed. He challenged Grotius' description of the sea: its resources were exhaustible, its space could be divided, its uses could be effectively controlled.
Both doctrines reflected the contemporary circumstances of their proponents: Grotius the advocate of sea-freedom on behalf of the Dutch East India Company's far-flung trading and navigation interests, Selden the defender of seas surrounding the British domain against foreign incursions. Grotius, we all know, had the future on his side. Freedom-of-the-seas principles provided generations of maritime powers with doctrinal support in diplomacy and legitimacy in international law. And when doctrinal authority alone could not secure open seas, seapower did so quite convincingly. Yet the seaward claims of coastal states have continued to be asserted. Even when narrow territorial seas were stable features of maritime life, special claims beyond were frequently pressed. In the eighteenth century Britain claimed extended zones for the capture of smugglers. Coastal states in the nineteenth century sought extended customs and sanitary boundaries.
Still and all, well into the early twentieth century most governments tended to endorse both freedom of the seas and the right of coastal states to establish, for their self-protection, narrow bands of territorial waters (traditionally as wide as the eighteenth-century cannon-shot distance of three miles from shore). Within just the last several decades, however, technological and political developments have begun to undermine the freedom-of-the-seas doctrine. The United States bears a major responsibility for starting the massive erosion with its claim after World War II to broad jurisdiction over continental-shelf oil resources beyond the territorial sea. In recent years the number, variety, and breadth of claims have increased dramatically. Their impact is large. The giant international resource industries that work in and under the seas face new coastal-state controls. The marine scientists, whose research may be suspect in the littoral states as beneficial to foreign commercial or military users, are losing the privileges of "free science" in the ocean. Navies and shippers are threatened with restrictions in preferred sea-land and communication lines. Moreover, since the limitations and penalties of gunboat diplomacy have become very high, coastal states can assume that in most cases their expansive claims are unlikely to provoke military responses.
It might seem as if Selden were winning out over Grotius. But in fact, neither traditional doctrine comes to grips with the fundamental revolution in man's spatial relationship to the sea. The ocean no longer can be conceived primarily as two-dimensional space defined by surface longitude and latitude. A third dimension, depth plus altitude, has acquired equal importance as uses proliferate in the air space above the water, the water column and the seabed. Finally, man and the sea's living resources move pervasively through these environments, creating a kind of "fourth dimension." Nor can the main questions for ocean diplomacy any longer revolve around how to preserve freedom of the seas. The larger task now facing the international community is to find ways of limiting free use of the ocean and national sovereignty over some of its parts to take into account the fact that the ocean has become a shared and finite world resource. Inherited doctrines and practices need to be supplanted. But to what ends and by what means are still-like the minerals of the seabed-up for grabs.
Six years of pre-Conference deliberations, during which dozens of governments have proposed treaty drafts, have left to the 1974 Conference all the toughest political questions: the seaward limits of coastal-state control; the rules to be applied within the coastal-state areas; the regime for the ocean areas beyond national jurisdiction; and two issues which cut across the first three-international revenue-sharing, and procedures for the settlement of ocean disputes.
(1) The issues of greatest potential economic consequence concern a coastal state's prerogatives beyond its sovereign "territorial sea," which most nations have extended or are willing to extend at least out to 12 miles. Beyond a 12-mile territorial sea, which will probably receive Conference endorsement, many coastal states now would like very extensive, very thorough and very discretionary national jurisdiction and control of adjacent waters and continental margins; and they want the Conference to legitimize broad seaward extensions. Developed and developing states alike now appear ready to accept some such formulation, but they clash over its scope and details.
The concept with the largest support, usually called the Patrimonial Sea or the Exclusive Economic Zone, would give coastal states exclusive control, short of full sovereignty, over all living and mineral resources out as far as 200 miles. Coastal states could exploit these resources or grant access to foreigners, perhaps in return for taxes or other benefits. Scientific research would be controlled, but international navigation rights would remain intact. A group of militant 200-milers-some ten countries, mostly in Latin America-are still holding out for full sovereignty. But the 1973 Algiers meeting of 76 nonaligned countries, the Organization of African Unity, and most of the Caribbean countries have endorsed some variant of the economic resource zone, which has been unreservedly backed by China. Many of these developing states are attempting to make the recognition of the broad zones the condition of their acceptance of a 12-mile outer limit to their territorial seas. The developed states urging 200-mile zones already include Australia and Norway, and the list is expected to grow.
The Soviet Union is proposing that coastal states exercise exclusive jurisdiction over mineral resources out to the point where their margins reach depths of 500 meters or out to 100 miles, whichever is greater. This solution favors countries with wide, relatively shallow margins-like the Soviet Union, whose margin area extends outward many hundreds of miles-but still leaves some margin resources around the world outside the exclusive control of coastal states.
Another variant, generally appealing to landlocked states and to coastal states whose offshore potential is limited, would keep national jurisdiction closer to shore, perhaps within a 40-mile exclusive zone, reserving a relatively large part of the margins for the international community. The 40-mile limit, according to recent U.N. studies, would leave some two-fifths of the world's estimated undersea hydrocarbons within control of coastal states, while the rest would remain in an international area.
The United States, with an eye on domestic pressures as well as international preferences, propounds a Coastal Seabed Economic Area within which coastal states could exercise full control over mineral resources, mainly oil and gas, as long as they respect stipulated international standards. The United States would also give the coastal states primary access and management rights, though not exclusive ones, over the fish off their shores-a position that does not meet with favor in the most powerful long-distance fishing countries, Russia and Japan. The coastal mineral resource zones might extend either to 200 miles or to the outward edge of continental margins-the latter variant favoring the ten states (mostly developed) with the broadest margins, who among themselves control some 56 percent of these oil-rich beds. The universal 200-mile-zone solutions would bring 35 percent of the entire ocean within national control (slightly more than half of which would go to six developed states and four developing ones).
(2) Ground rules governing the relations of coastal and maritime interests likely to come into conflict within the areas under coastal control probably present the most complicated questions; the crux of upcoming ocean negotiations will concern how to cope with the consequences of the substantial coastal expansion that is now probably inevitable. In the words of the American Ambassador to the Law of the Sea Conference, "We feel the international content of the [nationally controlled] area is in many ways almost more important than what its exact extent is. The gut issues for us are protecting other uses of the area. . . ."1
Foremost among these are navigational and military uses. The realization that a universal sovereign sea of 12 miles would transform more than 100 formerly international straits into territorial waters has evoked horror stories of bottlenecked straits clogging the lifelines of international oil and other commercial traffic, and upsetting military balances and naval strategies. In reality, only about a half-dozen straits have large geopolitical significance, and only a handful of "straits states" sit astride these more important sea corridors. Under the prevailing international principle of "innocent passage," straits states can oblige submarines to surface in transit, can exercise considerable leeway in deciding which traffic is "innocent," and can prohibit aerial overflights.
Fearing these and further restrictions, the United States, the Soviet Union, the United Kingdom and France are insisting on internationally guaranteed free transit, qualified by necessary safety and navigation procedures. Indeed, the United States has conditioned its acceptance of a 12-mile limit on free transit rights. Russia, whose ocean-based military capabilities may well be more adversely affected by transit restrictions, is demanding free transit only through straits linking open seas, which would exclude, notably, the Straits of Tiran. Key Asian, Arab and European straits states and Asian archipelago countries are arguing that free transit could prejudice coastal interests in avoiding pollution and accidents in straits, and could threaten local military or general security interests. And they are insisting that they have no inclination or purpose in interfering with peaceful commercial traffic under reasonable safety conditions. Japan, less interested in military requirements of straits passage but vitally concerned about the straits through which nearly all of her imported oil passes, especially Malacca, has apparently not aligned herself closely with the superpowers on this issue, preferring instead to make unilateral approaches to states in the Pacific and the Persian Gulf to assure that her oil traffic is not interrupted.
Additionally, expanding coastal jurisdiction could inhibit the emplacement of anti-submarine detectors, as well as various kinds of military traffic through the coastal zones. No one talks about these concerns in detail in the ocean debates, but they are clearly behind the maritime powers' insistence that "other legitimate uses" of the ocean not be interfered with in expansive coastal zones. This clash of maritime military interests and new coastal-state assertions coincides with the widespread growth of interest in more comprehensive ocean demilitarization-as in the campaign to declare the Indian Ocean a "Zone of Peace," which has garnered general support from the region's littoral states and China.
The extension of coastal jurisdiction is also generating contention over marine pollution control in margin areas. Some developing coastal states, notably Kenya and Tanzania, are claiming that coastal states should possess blanket discretion to set and implement pollution controls in wide economic zones, and that no international standards ought to be imposed to limit coastal prerogatives or to inhibit economically productive offshore activity. It now seems fairly certain that coastal states will be given primary responsibilities for controlling pollution from seabed resource extraction on the margins, perhaps within overall international guidelines. There is still considerable disagreement, however, over who should set and enforce controls for vessel-based pollution.
The choices turn on how to allocate authority among coastal states, flag states with which vessels are registered, port states to which vessels are traveling, and international bodies with responsibility for dealing with pollution from ships. Maritime interests, among them the United States, tend to prefer uniform and universally accepted pollution standards that lend themselves to self-enforcement by shipping states and do not expose vessels to multiple pollution-control regimes off different countries' coasts. The United States would give standard-setting responsibility to the London-based U.N. International Maritime Consultative Organization (IMCO), but a number of governments, most prominently Canada, are dissatisfied with IMCO's past performance in the pollution-control field and its responsiveness to shipping interests rather than ecologically concerned coastal states. Each of these pollution-control issues is part of a larger debate about the locus of overall authority for marine environmental policy-whether it should be a new ocean agency, the United Nations Environment Program headed by Maurice Strong, or established U.N. specialized agencies like IMCO.
Lately moving closer to the center of political controversy are the activities of marine scientists. This issue draws together the accumulated resentments of the world's have-not nations toward the traditional dominance of the maritime arena by the technologically and scientifically advanced nations. The have-nots charge that "freedom of the seas" and "freedom of ocean science" are little more than self-serving slogans for those who benefit most from those freedoms. They single out the traditional support by navies for basic oceanography. And they point to the conspicuous links between ocean geology and the finding of minerals; between ocean biology and the catching of fish; and to the known attempts to disguise military intelligence ships as scientific research vessels (the Pueblo being a case in point). Most developing coastal states adhering to 200-mile or other extended zone concepts-once again with nudging from China-are insisting that no marine science research be conducted in these areas without their consent and, if possible, their participation. Some advanced coastal nations, too, want to regulate offshore research out to great distances. The maritime states are clearly on the defensive, with the United States and the Soviet Union now bargaining to keep basic oceanography relatively free of coastal-state consent requirements, and offering various assurances intended to persuade coastal states that their interests can be served by offshore scientific research. Some developed states are taking a different tack in accepting, but at the same time qualifying, the consent requirements of coastal states. China not only argues that coastal states should control research in their adjacent areas, but also calls for tight control by an international organization over all scientific research anywhere in the ocean.
(3) Whatever the scope and limits of coastal-state sovereignty that may be recognized, the international community must move on to settle the matter of how to deal with the ocean areas beyond national jurisdiction. But this issue no longer means what most ocean diplomats thought it did just a few years ago.
Ambassador Arvid Pardo of Malta, in putting the ocean problem on the U.N. agenda in 1967, saw a chance for the international community to get a meaningful institutional and financial grip on the productive regions of the ocean beyond what were then presumed to be relatively modest national areas. Pardo proposed that the common heritage of mankind in the ocean should begin beyond "the present" limits of national jurisdiction. But the 1970 General Assembly resolution endorsing the common heritage principle dropped these two words, and thereby perpetrated one of the more disingenuous sleights-of-language in diplomacy, since the "limits of national jurisdiction" were themselves being stretched.
With the boundary decisions postponed, coastal states had a strong incentive to push claims to the richest, most fertile, and most productive seas and seabeds in order to make sure these were kept within national jurisdiction. The common heritage is now being shrunk to whatever might be left over after the coastal states finish taking what they regard as their just dues. What is left to the international community may still include most of the ocean space, but virtually no commercially exploitable oil and gas, and only a small proportion of the living marine resources.
There does remain, of course, the prospect of viable production of deep-ocean hard minerals, which many now see as the last opportunity to bring direct control of major ocean resources into the hands of the world community. But since the economic and technological question-marks about the profitability and international market impact of nodule mining are still very large, nearly everyone is trying to cover all future bets. Contention is sharpening among developed countries which will be in competition for the industrially important minerals, and between developed and developing states which see this deep-ocean issue as a test of mutual good faith in the negotiations.
Not surprisingly, there is a wide spectrum of institutional preferences for governing deep-ocean mining. Many countries of the Third World want decisions on deep seabed resources to be controllable by numerical majorities, while some developed states urge that preëminent authority rest in bodies with voting weighted to reflect technological capabilities and in groups of specialized experts. Developed states with potential for mining the deep ocean generally prefer an international organization that would license mining by corporations or state agencies, and that would apply nondiscriminatory criteria. The United States remains at the forefront of the licensing-only approach, and lately has proposed that any new ocean treaty must explicitly contain mining terms, leaving relatively little to the later discretion of the international political organs. The Soviet Union, after initial resistance to international regulation, has softened its objection to the principle of an international regime, while China backs strong and direct international controls. The developing countries, arguing that a licensing regime would skew ocean-mining benefits and access in favor of a few technologically capable countries, are marshaling a growing consensus behind the idea that an international agency might either engage in mining itself or set up profit-sharing joint ventures or service contracts with mining operators, and that it would control prices and production.
(4) The concept of international revenue-sharing will no doubt be endorsed by the Conference as a general principle, but the disagreements over its implementation are entangled with all the most sensitive issues. The landlocked countries (which include many-of the world's poorest states) and their brethren with unpromising offshore potential continue to be the most strongly self-interested in an international regime that distributes revenues, such as taxes or royalties from mining, otherwise totally inaccessible to them. Some rich states may be willing to share revenues from exploration and exploitation on their own margins, but support for this concept has diminished and is being linked to substantial concessions from poor coastal states on other issues. Developing states make it clear that they will expand their exclusive jurisdictions outward, but without any firm commitment to provide the revenue that they believe, on economic and moral grounds, should be transferred from rich to poor. Rich states are willing to consider revenue-sharing in connection with deep-ocean mining, but only if economic incentives and efficiency are not compromised in the process. There are growing threats-heard most often from private sources in the United States-that deep-ocean mining will inexorably move forward, agreed international regime or no, and that the international community might then end up with nothing.
(5) Finally, procedures for settling disputes take on special importance in today's ocean diplomacy simply because the continuing proliferation of ocean activities portends more disputes among more countries over more issues than ever before. Some advanced nations, notably the United States at this point, are responding to the inevitability of extended coastal-state jurisdiction seaward by insisting that all disputes between long-distance and coastal interests within those jurisdictions be subject to compulsory jurisdiction by a specialized tribunal.
The United States, not normally a friend of compulsory international jurisdiction, anticipates circumstances in which its nationals, especially its oil drillers and shippers, may be threatened by unilaterally imposed coastal-state restrictions. American negotiators now say that acceptance of compulsory jurisdiction is the cornerstone of the new arrangements being considered, and that most of their own proposals for future ocean policy would be absolutely unacceptable without compulsory jurisdiction. Thus the impression is conveyed that compulsory jurisdiction, like free transit, is a nonnegotiable demand.
The ocean bargaining now underway features and reinforces some of the patterns of international politics emerging in the world at large. We are referring particularly to the disintegration of the cold-war coalitions, the relative rise of non-security issues, the diversification of friendship and adversary relations, and the embittering tension between the have and have-not peoples.2
Nature itself has had the heaviest hand in aligning countries in the ocean debate. Obviously, it makes a considerable difference whether a country borders the ocean or is landlocked, whether its coastline is long or short, and whether its continental margin is rich or barren, broad or narrow. Technology's impact on a country's geological and biological inheritance is an increasingly weighty determinant. Ideological inclination runs a poor third, although the cohesion of the Third World remains an important factor. And alternative visions of a world community are hardly in the picture at all on the eve of the 1974 Conference.
The broad coalition supporting pervasive national control in wide offshore zones comprises not only most of the coastal states of the Third World but also some members of NATO (Canada, Norway, Iceland), plus Spain, Australia and New Zealand, as well as China, Albania, Yugoslavia and Cuba. The United States, the Soviet Union and France (joined by Japan on some issues) are coalition leaders of the states which want to preserve as much unrestricted maritime freedom as possible. The Soviet Union and Japan, while rivals over the fishing areas in the waters between them, both are long-distance fishing powers, and therefore find themselves aligned in Law of the Sea negotiations against coastal states claiming exclusive fishing zones. The United States is a less consistent coalition partner on this subject, being responsive to its own coastal fishing interests, as well as those of other coastal states with whom the United States is negotiating. When it comes to scientific exploration, the lineup tends to correlate quite consistently with the technological prowess of the countries, with the United States and the Soviet Union partners in championing freedom for ocean research-as they also represent the dominant interests in freedom of transit through international straits.
China, only recently a full-fledged participant in ocean politics with her admission to the United Nations, is scoring points by charging collusion between the superpowers and identifying with the coalition of have-nots. The Chinese lose no opportunity to take the podium as spokesmen for militant anti-maritime positions (exclusive jurisdiction out to 200 miles; stringent limitations on scientific exploration), and for substantial redistributions of income and political power (direct control by an international agency over the operations and revenues of deep-sea mining; majority dominance in ocean agencies). But China has found that the putative Third-World coalition is subject to fragmentation on the many issues that lie astride the split between the landlocked states (20 of which have a per capita GNP of less than $500) and the coastal states.
Altogether the world has come a very great distance since the Law of the Sea Conference of 1958-1960, when the United States viewed itself as the coalition leader for "free world" geopolitical and commercial interests in a narrow territorial sea, against the illegitimate effort of the "Soviet bloc" to extend coastal sovereignty to 12 miles. A pluralistic world where multiple and overlapping coalitions are formed on the basis of particular interests rather than ideology is probably safer than a world in which conflicts over particular interests are inflated into grand struggles over competing ways of life. Crosscutting coalitions of the kind now evident in ocean diplomacy are a cushion against total nation-to-nation or bloc-to-bloc hostility, and provide disincentives to the reliance on military force.
But whereas the complex intersection of interests in the ocean may be conducive to a stability of sorts by helping to contain conflicts below the level of major interstate hostility, the lack of concepts and mechanisms for attending to the continuing tasks of allocation of resources and resolution of disputes does not augur well for a stable international order over the long run. And a rampant pluralism portends a failure to conserve the resources and ecological health of the sea.
Thus the basic directions of ocean diplomacy are disturbing. Nations are greedily extending their assertions of jurisdiction seaward when even on land the system of sovereign states seems to be out of kilter with the increasing ability of politically separated peoples to affect each other's health and welfare. The preparatory period for the 1974 Law of the Sea Conference has been used by many states to grab while the grabbing's good. The prospects appear dim that the Conference will produce the coherence in policy and institutions called for by the comprehensive and interconnected character of ocean problems; nor can one be optimistic that the agreements reached will be sufficiently responsive to the continuing changes in use and knowledge of the sea.
Those countries that have seen their preferred outcomes steadily lose support during the lengthy pre-Conference negotiations now seem to be approaching the Conference convinced that international consensus can only damage their interests. And the polarization of maritime haves and have-nots shows every sign of intensifying as the Conference nears, leaving both groups skeptical about the value of the multilateral negotiating process and the concessions it requires.
To be sure, even with a complete breakdown in the negotiations we will not be at the edge of the apocalypse. Conflicts of interests still might be accommodated temporarily on a bilateral or limited multilateral basis. Yet, sometime before the end of the century the need for a more coherent global regime for the ocean is bound to become more acute, and the international community will have to try again. Things may need to get worse before they get better.
The United States-because of its prominence in maritime politics-must accept its share of responsibility for the unpromising state of ocean diplomacy. It has been several years since the American government offered an elaborate seabed resource treaty to internationalize the margins in part (making coastal states "trustees" for the world community) and to fully internationalize the deep ocean. Since then, the Byzantine maneuverings of the key players in U.S. domestic ocean politics have severely undermined the core premises of the original American draft treaty.3 Not without blame are the oil interests with their warnings that the Administration's announced policy endangered American energy security, and their demands for ironclad international guarantees to protect their offshore operations from coastal-state controls; the domestic coastal fishing interests with their insistence on protection against the incursions of foreign fishing fleets; the scientists who had neither the political clout nor the easily demonstrable identification with national economic objectives, but who decided that it was time to make themselves heard in the name of science; the hard-mineral mining industries with their arguments that internationalization of the deep ocean would threaten their corporate well-being and their competitive position vis-à-vis mining interests in other advanced countries; and the shipping interests with their anxieties over coastal-state interference in their navigation routes.
No less severe is the battering that the American stance has suffered on the international scene during these same years. U.S. ocean policy has taken enough twists and turns to offer almost every foreign critic a ready target. At first, the United States unequivocally resisted the very idea of a general and comprehensive law-of-the-sea conference-an attitude it shared with the Soviet Union. Then, after the furious period of domestic bargaining that produced the 1970 Nixon policy, the United States, in announcing that policy, identified itself with the internationalist notions of common heritage associated with the new perception of the ocean as a vast treasurehouse of still unappropriated wealth. International reaction to the American démarche was not, as many policy-makers seem to have expected, a rush of praise and gratitude, but a series of stinging criticisms. Former colonial nations bristled at the reincarnation of the "trusteeship" notion. The 1970 U.S draft treaty was portrayed as at best a naive attempt to place a tidy international organizational structure on top of the chaotic and contentious arena of international ocean politics; and at worst a cynical attempt by the Department of Defense to buy off coastal developing states whose assertiveness might hamper naval mobility. More charitably, the 1970 American policy initiative can be viewed as a gesture that conceded few real interests while rhetorically aligning the national interests with universal order. Recently, international criticism has intensified as American negotiating positions have shifted and hardened-partly to accommodate the demands of various domestic interests, and partly perhaps in a characteristic "bargaining-chip" strategy.
Not all of the policy adjustments that U.S. ocean negotiators have made on behalf of domestic interests can be faulted, and not all of the international criticism of U.S. policy positions has been fair. But it is clear that the United States needs badly to reconstitute a working domestic consensus for an ocean policy that serves an enlightened national interest and a broad conception of world community needs. Each special bureaucratic and private interest must not be free to define the national interest as its own. Nor should international policies be judged or defended merely on the basis of how much can be got for how little given.
The problem for nearly a decade now has not been primarily the pressures of domestic interests, the naive generosity of the familiar brand of American internationalism that surfaced in the 1970 ocean treaty, or the common hypocrisy of politicians. Rather, American ocean policy-makers have simply failed to be grand enough-both in their definition of international objectives for the ocean, and in their strategies for generating domestic and international support for new policies. Being only halfway committed to only half a loaf is probably the surest way to end up with less than a quarter.
Being grand enough requires a consistent eye on the essential implications for world order inherent in the debate over the ocean's future. President Nixon, in his 1971 State of the World message-the first to prominently mention U.S. ocean policy-gave at least rhetorical content to the proposition that there is what he called a "world interest" to be served in the ocean. It is time to retrieve the spirit of this declaration and to give it direction and substance.
The cornerstone of these world order objectives should be a clear determination to promote international ocean policies and institutional arrangements that, whatever else they may do, serve to steadily increase mutual accountability among ocean users whenever they affect each other directly and whenever they affect the ocean on which they depend in common. It will not do for the United States merely to pledge a principle of mutual accountability. It must exemplify that principle in specific actions at and beyond the Conference, and must aim at having in place by this century's end a set of international structures to maintain it. A grandiose institutional blueprint is still premature. But it is not too early for the United States to commit itself to an evolving political process where it must accommodate to others, where it must share the real power of decision with others, and where it must settle for making moderate demands in return for moderate satisfactions.
The present U.S. effort to lock up even the finer details of a deep-ocean mining regime in an ocean treaty can only be regarded by others as an attempt to insulate an American-preferred mining regime from future challenge. Attempts to keep ocean environmental decisions in forums dominated by maritime powers will be interpreted by others as a device to deprive them of a voice on environmental policy in present or future institutions where their weight can be felt. U.S. enthusiasm for compulsory international dispute settlement can appear narrowly self-serving if conditions and terms are attached favoring the kinds of interests the United States expects to be under adjudication. And a persistent U.S. policy of subjecting virtually all politically and economically important ocean decisions to weighted-voting arrangements favoring the technological powers is easily portrayed as a transparent means of excluding other countries from a meaningful voice in decisions affecting them. To be sure, the United States is not alone in seeking to preserve advanced-country preëminence in ocean institutions. But an uncompromising pursuit of this objective by the United States would be impolitic, for it would stiffen Third-World reliance on the sheer weight of their numbers as a diplomatic weapon.
The second essential element of an enlightened American ocean policy must be the recognition that no resolution of conflicting international interests and perspectives is possible except via measures that bring economic justice to users of the ocean, even at some relative sacrifice to the rich states able to benefit directly from ocean-resource development. The ocean debate began as a colossal exercise in economic politics fueled by the suspicion throughout the Third World that their slice of the pie almost certainly would be lost without deliberate international decisions in their favor. Even though both developing and developed nations must share some onus for the carving up of the common heritage, this fact should not lead to the conclusion that the rich are thereby divested of special obligations.
The United States, just within the past year or two, has moved demonstrably away from a precise formulation of international revenue-sharing policies, although the commitment in principle is still there. There may yet be some chance that major revenues can be realized for the world community even if coastal jurisdictions are extended wholesale. The United States can help by showing that it regards revenue-sharing for international-community purposes as a desirable end in itself, and not merely as a bargaining lever. It is time to press urgently and concretely for arrangements to share very substantial revenues from oil and gas exploitation on the continental margins. Offshore oil can make the real difference in near-term international returns from the ocean. Resource experts know this; politicians and diplomats have carefully tended to avoid it. Moreover, revenue-sharing schemes can be devised to place the proportionately greater obligations on the richest oil producing countries. As for the much less certain revenue prospects from any future deep-ocean mining of hard minerals, deliberate steps must now be taken to keep these prospects alive and to accept the need for a deep-ocean regulatory regime held as legitimate by the bulk of the international community. Surely the miners must have proper incentives, but it is up to political leadership to preserve a future cut for the world community.
The third ingredient in a larger American ocean strategy would be to serve the world interest by thrusting the neglected issues of ocean environmental protection to the forefront of the diplomatic agenda and to the top of the U.S. list of priorities in the years immediately ahead. To be credible, a commitment to deal comprehensively with the problem of ocean degradation must radically challenge the now-orthodox notion that the ocean is divided into national and international turf. The political logic behind this notion as it applies now to economic and security policies in the ocean probably cannot be sustained successfully for very long. Applied to environmental policies, such logic is clearly indefensible in view of the ecologically unified and four-dimensional nature of the ocean earlier described. The environmental reach of the international community in marine affairs will have to extend-as Maurice Strong has recognized-far enough to pierce the artificial boundaries of "national jurisdiction," up to and onto the land from which so much ocean pollution comes.4
A departure from prevailing nationalist concepts in the field of marine ecology will by no means eliminate the need to debate and continually refine the meaning of environmental preservation and how to implement it. Nor will it reduce the clashes of national and special interests over the nature of the regime to manage the commons, or the usefulness of less-than-global solutions to many ecological problems of the oceans. But ocean diplomatists have not yet begun to take these challenges seriously; they seem instead only to be drifting into ecological irresponsibility.
In its unfolding ocean diplomacy, the United States must face two realities: it will not get all that it wants, and it will have to coöperate intensively with many other nations in order to get what it can. The first reality suggests that the United States must carry to any ocean negotiations a clear-headed conviction of what is essential to achieve and what is merely convenient. While the United States is currently advancing and defending some very important national interests in their most unvarnished and absolute forms, none of them is rightly to be regarded as a vital interest immune from adjustment. This includes the very sticky issue of straits, for maritime military and strategic considerations do not require a universal legal right of the kind being sought-and given the political realities of the ocean debate it is quixotic to put everything on the line for this issue. On this question as well as on a host of others, reasonable adjustment to the interests of others is more likely to increase than to decrease the net overall political and economic return to this nation. And if sooner or later a truly coöperative approach to ocean management will have to be made, why not begin now?
If, as we believe, the priority task of the upcoming round of ocean diplomacy is to begin building a working political community among ocean users, then a successful Conference must be defined not merely as one that reaches agreement, but one that reaches the right kind of agreement. This Conference must leave future ocean negotiators with a legacy of accommodation and mutual trust in ocean affairs, not a residue of bitterness left by confrontationist diplomacy. If a general "constitution" for the ocean is to result, it must be one that is flexible and durable enough to garner the support of all major segments of the international community. A working political community requires not only a treaty laden with rights and obligations, but also a political framework of incentives that encourage joint policy-making, consultations, and collective action at appropriate levels during the decades immediately ahead.
We do not urge this approach for the United States because we think America alone can assure the success of the Law of the Sea Conference. These negotiations may fail in key respects no matter what the United States does. We urge it rather as a longer-range approach for American ocean diplomacy, and as a necessary counter, particularly within the United States, to the nationalistic and parochial pressures being catalyzed by the Conference. A country with the maritime strength and interests of the United States has little to lose by adopting an internationally responsive and less narrowly self-interested approach toward building a more peaceful and just world order. The challenge is to combine a healthy pursuit of U.S. interests in an orderly, durable ocean regime with a consistent vision of how this nation must use and restrain its power in a progressively interdependent world.
1 John R. Stevenson, "Some Likely Outcomes From the Next Law of the Sea Conference," J. Seward Johnson Lectures in Marine Policy, Woods Hole Oceanographic Institution, May 2, 1973.
2 See Seyom Brown, "The Changing Essence of Power," Foreign Affairs, January 1973.
3 See Ann Hollick, "Seabeds Make Strange Politics," Foreign Policy, Winter 1972-73.
4 See Maurice Strong, "One Year After Stockholm," Foreign Affairs, July 1973.