America’s New Realism in the Middle East
Biden’s Saudi Trip Reflects an Acceptance of the Region as It Is
Not quite a decade ago, Arvid Pardo, Maltese delegate to the United Nations, startled much of the international community with his proposal that the United Nations declare the seabed and ocean floor "underlying the seas beyond the limits of present national jurisdiction" to be "the common heritage of mankind," and not subject to appropriation by any nation for its sole use. In the face of a steady increase of unilateral seaward encroachments by nation-states, Pardo's call-to-arms launched the international community as a late entry in the race for control of the oceans and their vast resources, a race between "the good of one" (the nation-state acting in its own selfish interests) and "the common good." To achieve the latter, he urged the United Nations to create a new kind of international agency to assume jurisdiction, as a trustee for all countries, over the seabed and to supervise exploitation of its resources-with the net financial benefits, which he hoped would be considerable, to be used primarily to promote the development of poor countries.1
Although Pardo's essentially internationalist approach was heralded by many as an idea whose time had come, and provided the initial impetus for the convening, in 1973, of the Third United Nations Conference on the Law of the Sea, it is by no means sure today who the winners in the race will be. Before turning our attention to how it stands, as the United Nations Conference reconvenes in New York, it is important to review how we got where we are today.
For most of recorded history there have been only two uses of the oceans that mattered: fishing and navigation. At a time when fishermen and most ships stayed close to the shoreline, the oceans and the supply of living resources beneath them seemed truly inexhaustible. Only with the advent of worldwide exploration in the sixteenth century and the flurry of colonial claims that followed did attention begin to be paid to the need for resolution of two conflicting philosophies of ocean use: national ownership (implicit in Spanish and Portuguese claims to the Gulf of Mexico and the entire Atlantic Ocean) and freedom of movement (important to the great trading companies such as The Dutch East India Company). Given the inability of any nation to enforce claims of ownership to whole oceans and the need for all the colonial powers to have free access to their overseas territories, it is perhaps not surprising that freedom of movement, as propounded in the writings of the Dutch jurist, Hugo Grotius, won out, and became the accepted starting point of modern ocean law.
Certainly what Grotius said at the time made good economic, as well as philosophic, sense: "The sea, since it is as incapable of being seized as the air, cannot have been attached to the possessions of any particular nation."2 In a word, there was plenty of ocean (and fish) for all. Interestingly enough, however, Grotius's philosophy of "freedom of the seas" also involved the concept of common ownership, res communis, an idea surely closely akin in principle to Pardo's "common heritage," enunciated three and one-half centuries later.
As customary law developed over the next three centuries, "freedom of the seas" came to mean that, except within an area extending three miles from the shoreline (the distance an eighteenth-century cannon could reach)-which came to be the "territorial sea" of the coastal power-the rest of the oceans were high seas, free, as a matter of law, to all except pirates. Even within the "territorial sea," vessels of other countries were recognized as having a right or privilege of passage provided they complied with the requirements of what came to be called "innocent passage" (passage "not prejudicial to the peace, good order or security of the coastal state"). Then with the steady increase in ocean commerce in the nineteenth century, freedom of the seas also came to be qualified by the concept of "reasonable use," basically respect for the rights of others.
But it was only in the twentieth century, with its discoveries of important resources and a sharp rise in all ocean uses generally, that accepted principles began to be eroded rapidly. Customary law, dependent on slow incremental growth, no longer could move fast enough to provide generally acceptable solutions to new problems. Traditional uses multiplied-the world harvest of fish grew from 16 million tons in 1950 to 69 million tons in 1974, merchant tonnage in the same period from 76 to 306 million gross registered tons. But in a very real sense the modern era in the political history of the oceans began with the discovery, prior to the end of World War II, of oil under the continental shelf off the coast of the United States.
In order to understand the political developments which have followed thereon, it is well to have in mind the geologic structure of the area. To outline it briefly: the continental shelf is that area of the underwater continental land mass lying immediately adjacent to the shoreline and generally extending out for a distance that can be as little as two and as much as 600 miles wide, with an average gradient of less than one-tenth of a degree, and the outer edge of which is usually found at a depth of between 130 and 200 meters. This continental shelf, together with a steeper area lying adjacent to it known as the continental slope (often as narrow as 20 miles in width and likely to drop at its outer edge to a depth of between 2,000 and 2,500 meters) and the continental rise (an area largely composed of continental sediment that has been transported down the slope through the ages and which merges gradually with the true ocean bottom known as the abyssal plain), make up the so-called continental margin. It is within the margin, as thus defined, that virtually all of the ocean's nonliving organic resources are thought to lie-oil and gas deposits of major significance. On the abyssal plain beyond that are inorganic manganese nodules, the commercial importance of which has come to the fore only within the past decade. Most recently, it has been these small burnt-baked-potato-like objects, containing manganese, nickel, copper and cobalt, that have intensified the conflict over the uses of the world's oceans.
THE CONTINENTAL MARGIN IN DIAGRAMMATIC PROFILE AND PROPOSED JURISDICTIONAL ZONES
NOTE: Australia, Brazil, Canada, India, Japan, Mexico, New Zealand, Norway, U.K., U.S.S.R., U.S. and 37 other coastal states have continental margins that extend beyond 200 miles. The remaining 120 coastal states do not.
In 1945, however, it was the growing realization of the likely future importance of offshore oil to the United States which led to the first significant assertion of a national right in an area that had previously been considered international. In a unilateral proclamation of September 28, 1945, President Truman reserved to the United States the exclusive right to explore and exploit the mineral resources of its continental shelf, beyond the territorial sea.
Other unilateral declarations soon followed. Chile, Ecuador and Peru, notably, claimed seaward extensions of national jurisdiction to 200 miles. While these countries had only narrow continental margins with little likelihood of recoverable oil and gas deposits, their claims encompassed fishing grounds important to distant water fishermen from other countries, giving rise to international conflicts, including seizures of the U.S. tuna fleet, that have continued up to the present day.
The need to reconcile these and other newly asserted rights with existing international law led to the convening of the First United Nations Conference on the Law of the Sea in 1958. Four conventions were adopted: one (while failing to agree on a common distance) set a 12-mile maximum limit on the territorial sea; a second, on the "high seas," codified freedom of navigation, fishing, overflight and the laying of submarine cables and pipelines; a third, on fisheries, among other things permitted coastal states to regulate fisheries around their shores, even beyond a 12-mile limit; and a fourth provided for national exploration and exploitation of continental-shelf resources. This last convention contained a definition as important in its own right as the Truman proclamation which preceded it or the Pardo declaration which followed. In attempting to set an outer limit to the area in which nations could explore for mineral resources, it provided that states were to have sovereign rights to:
the seabed and subsoil of the submarine areas adjacent to the coast but outside of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas [emphasis added].
At the time few seriously contemplated that oil beyond 200 meters would ever be commercially retrievable. But that phrase provided a legal basis for nationalistic claims to the entirety of continental margins-margins that, in some cases (notably Australia, Brazil, Canada, India, Japan, Mexico, New Zealand, Norway, the United States and the U.S.S.R.), extend well beyond 200 miles from the coastline.
Important as these 1958 conventions were, they were not all-inclusive; they were never generally accepted by all nations; and in some cases they were outmoded almost by the time they were written. In 1960 the Second United Nations Conference on the Law of the Sea tried but again failed to establish universal agreement on the width of the territorial sea. And the march of new claims went on.
Between 1967, when Pardo spoke out, and 1973, the year of the formal opening of the Third United Nations Conference, the speed and frequency with which nations asserted unilateral claims into ocean space were almost dazzling, perhaps symptomatic of a recrudescence of nationalism generally throughout the world. During that period no less than 81 states asserted over 230 new jurisdictional claims of varying degrees of importance. Some, like Iceland's move to a 50-mile exclusive fishing zone (precipitating the first of the now famous "Cod Wars"), Brazil's assertion of a 200-mile territorial sea, and Canada's establishment of a 100-mile pollution control zone, precipitated immediate controversies with other states, whose conflicting ocean uses were thereby jeopardized.
However, certain general patterns did emerge. By the beginning of the Caracas session of the United Nations Conference in 1974, there was already a well-established trend toward an assumption that the territorial sea would have a breadth of 12 miles, that beyond it and out to 200 miles there would be an "economic zone" largely controlled by the coastal state, and that the area of common heritage would begin only at 200 miles, or possibly even beyond in the case of states with continental margins broader than that.
In that short space of time, much to his disgust, Arvid Pardo's common heritage had shrunk to 65 percent of ocean space. The remaining 35 percent-claimed in one way or another by the coastal states-now appears likely to contain virtually all oil and gas resources, 95 percent of the harvestable living resources, and even perhaps a significant proportion of the most highly politicized mineral resource, the so-called manganese nodules.
The Third United Nations Conference on the Law of the Sea is the largest international conference ever held. At its first substantive session in Caracas, there were over 2,000 delegates representing 143 jurisdictional entities, many of them relatively new countries with no prior experience in dealing with ocean issues, addressing an agenda of over 100 items that had to be disposed of if the Conference was to succeed in formulating a universally accepted body of law providing for the orderly growth of all ocean uses. To undertake its work the Conference divided itself into three separate formal negotiating groups: Committee I has dealt with the common heritage and the new international regime to be created; Committee II has focused on the territorial sea, the 200-mile zone and the high seas, involving itself with the status of islands, archipelagoes, fishing, navigation and related issues; Committee III has concentrated on scientific research and environmental issues.
Unlike the First Law of the Sea Conference, at which negotiators began with a single negotiating text prepared in advance by the International Law Commission, it was only by the end of the second substantive session held in Geneva in the spring of 1975 that the three principal conference committee chairmen were able to reduce a wide variety of differing proposals into one three-part Informal Single Negotiating Text.3 The president of the Conference, in July 1975, added a separate text on Settlement of Disputes, drawing heavily on the work of a small but relatively effective informal working group that met both in Caracas and in Geneva.4 These texts have not yet in themselves been the subject of comprehensive negotiation-hence responses and salient issues can be predicted only generally.
The politics of the Conference are complex. In relation to the oceans, no two nations are alike-but all have a stake. Geography and material interest may cut across factors that otherwise might be important. Thus, from the first this Conference has been dominated by two basic and contradictory cleavages. One, with strong ideological overtones, tends to pit the developed countries against the poor nations of the world. Since the first UNCTAD conference in 1964, the latter have generally banded together in a loose yet formidable political alliance which, although its membership is now more than 100 nations, is still called the "Group of 77." At the Law of the Sea Conference, both the philosophy and goals of the Group of 77 have been most clearly expressed in the debate over exploitation of mineral resources of the deep seabed-the common heritage area.
The second basic cleavage has its roots in the hard realities of ocean geography and existing political boundaries. Some countries, both developed and developing, have long coastlines and broad margins while others are totally landlocked. That this second cleavage is no respecter of the ideological differences implicit in the first can be seen from the following anomaly: if, as expected, the conference adopts a 200-mile economic zone, of the 35 percent of total ocean space within the zone, almost one-third (including 50 percent of the area holding the most promise geologically for the discovery of underwater oil) will belong to the ten states already named, seven of which are developed: Australia, Canada, Japan, New Zealand, Norway, the Soviet Union and the United States.
It was this second cleavage that led the geographically disadvantaged countries at Geneva in 1975 to take an increasingly independent stand without regard to whether they were developing or developed.5 Geographically disadvantaged countries within the Group of 77, in particular, have questioned whether their interests in the 200-mile economic zone have been adequately protected in proposals put forward at the insistence of strongly nationalistic coastal states, whose ideological leadership has previously tended to dominate the Group. Quite possibly the ultimate success or failure of the conference will depend on which of the two cleavages-one ideological and one realistic-proves to be the deeper.
Against this background we can now turn to a detailed discussion of the major issues before the conference, keeping in mind the probable acceptance of: (1) a 12-mile territorial sea; (2) an "exclusive economic zone" extending 188 miles beyond that; and (3) the area beyond 200 miles, divided into its waters, which are likely to remain as "high seas," and the seabed and its resources (the "common heritage of mankind"), which will be subject to the jurisdiction and control of "the international regime to be established."
One of the principal issues before the Conference, given the framework just mentioned, is how to handle the management of navigation. One of the effects of agreement on a 12-mile territorial sea will be to include in the territorial waters of the adjacent coastal states some 116 straits heretofore recognized as international waterways (including the Straits of Dover, Gibraltar, Hormuz at the mouth of the Persian Gulf, and Malacca). Unless the Conference agrees to the contrary, international passage through such straits would then be subject to the traditional restrictions of "innocent passage."
The United States and the Soviet Union, and to a lesser extent the other developed countries with substantial merchant fleets if not navies, have insisted that in these new cases there should be a "right of transit passage, which shall not be impeded" (Single Negotiating Text, Part II, Article 38)-a new term of art implying considerably more freedom than would be possible under "innocent passage," although not the total freedom traditional on the high seas. At issue is not only the free passage of merchant vessels and warships, including submarines which in innocent passage must navigate on the surface, but also the unrestricted overflight of aircraft, a right that could become increasingly important if the American experience in resupplying Israel during the 1973 war (by overflights through the Straits of Gibraltar) is any indication.
As of now, it appears likely that most of the developing nations, even some of the more outspoken members of the Group of 77, will acquiesce in this new concept of "unimpeded transit"-in return for concessions from the developed world on other questions. Similarly, they seem likely to accept the parallel insistence of the major navigating countries that, in the economic zone, there should continue to be full "high seas" freedom of navigation for military vessels operating on the surface, or underwater, and for aircraft overflying the zone.
A troublesome issue remains to be worked out, however, between freedom of navigation, on the one hand, and protection of the marine environment, on the other. To the extent that nations, large and small, are dependent on freedom of merchant shipping to maintain their economic well-being, they are bound to be wary of controls established by other nations that could impose arbitrary limits, particularly on merchant traffic, even in the name of controlling pollution. On the other hand, the straits states, and to a lesser extent the coastal states with economic zones, have every reason to fear damage to their marine environment, and thus a legitimate interest in protecting themselves against it. The straits states will also continue to argue for more stringent provisions including one compensating them for damage caused by ships in transit, such as that resulting from the recent grounding in the Straits of Malacca of a tanker on its way from the Middle East to Japan. Given the growing realization by most states of their dependence on ocean commerce for their economic well-being, the final text is not likely to permit straits states to adopt more stringent standards than those resulting from international negotiation.
Turning from navigation to development and control of the ocean's nonliving resources, oil is a first priority. The reason is clear: although the temperature level of the discussions concerning oil seldom reaches the high intensity of those involving deep-sea ocean mining for manganese nodules, oil is by all odds the most important economic resource beneath the sea.
Of the approximately 20 billion barrels of oil produced all over the world in 1974, 20 percent came from offshore production, and this percentage is expected to double within the next few years. Of the more than 2,500 billion barrels of oil estimated to lie beneath the sea, the National Petroleum Council has estimated that 30 to 45 percent lies in those portions of the continental margin beyond depths of 200 meters.
One of the ironies of the Law of the Sea negotiations is that, as already noted, leadership within the Group of 77 has tended to reside in coastal states which have led the myopic nationalistic dash for as much control as possible within the proposed 200-mile economic zone, at the expense not only of their geographically disadvantaged neighbors in the Group of 77, but even of their own self-interest. One hears very little discussion about how much oil a very few developed countries with long coastlines and broad margins (Australia, Canada, the U.S.S.R. and the United States being the most important) will obtain as a result of the Conference.
In retrospect, it can be argued that the world in general would have been much better off to accept the U.S. proposal to the U.N. Seabed Committee in 1970, that beyond a depth of 200 meters and to the outer edge of the continental margin there should be an area known as a "trusteeship zone" administered by the coastal state both for itself and for the international community, with royalties to be paid into a new international fund. Although understandably opposed by other broad-margin states, which believed that the seabed resources of the continental margins were already vested in them by virtue of the 1958 continental shelf convention, the proposal was also rejected by the developing world, in no small part because it embodied the concept of "trusteeship," ideologically an anathema because of its "colonial" connotations.
Although the proposal, which appears to have been both generous and farsighted from an international perspective, was never formally withdrawn and should still be of special interest to the geographically disadvantaged states, the United States, mindful of its increasing energy requirements, has quietly abandoned it. There now seems little likelihood that it can or will be revived.6
Today the treaty seems almost certain to give coastal states "sovereign" rights to natural resources within their 200-mile economic zones. To this extent, the broad-margin states' interpretation of the key language from the 1958 convention appears to have won out. Because of opposition to a recognition of seabed margin rights beyond 200 miles, particularly on the part of African states, however, Article 69 in the Single Negotiating Text proposes "contributions in kind from the results of exploitation of oil and gas deposits that may be found within the continental margin of the coastal state but beyond the 200-mile limit," a concept reminiscent of the earlier U.S. proposal. However, from an economic point of view, the development of oil and gas resources in the outer continental margin is years, if not decades, away.
It is over questions relating to the exploitation of the hard mineral resources of the deep ocean bed, lying within the "common heritage of mankind," that the ideological cleavage really asserts itself. On one side are those countries that have, or soon will have, the necessary technology to exploit deep-seabed resources, including the United States, Great Britain, Japan, Germany, France, Belgium and the U.S.S.R. The clear preference of this group is for a carefully circumscribed "Authority," with what are deemed to be the essential protections for producers-right of access, security of tenure, and sanctity of contract-written into its constitution in order to justify the massive investments that will be required for full-scale production.
On the other side, the Group of 77, which for the most part had its way in the Single Negotiating Text for Committee I, wants a strong Authority with the right, as presently provided in the text, to exploit the seabed itself. The Authority would have not only a monopoly over exploitation but effective control of marketing and production as well, so that the prices and markets of present land-based producers among the Group of 77 would not be adversely affected.
In the opinion of most observers, unless there is substantial give on both sides on Committee I issues, the entire Conference is likely to end in failure. Three principal problems on which compromise must be found are: (1) the provision of adequate protection for land-based mineral producers from the possibly harmful economic consequences of sea-bed exploitation on their prices and markets; (2) the system of exploitation itself (who can exploit, under what conditions, what areas of the ocean bottom); and (3) the composition and powers of the main organs of a new Authority that is clearly going to be something considerably more than just the licensing agency that the United States had originally proposed.
Where might the avenues of compromise lie? As to economic consequences, painful as the thought may be to exponents of the traditional free enterprise philosophy, the answer may lie in commodity arrangements for the various classes of resources found on the deep seabed. The Authority could be given power to participate in the negotiations leading toward such agreements as well as in the agreements themselves. In the interim, or barring such commodity arrangements, the developing countries may insist that the Authority be empowered to set maximum production quotas each year in order to protect land-based producers. As to who may exploit the area, the most viable solution probably lies in the creation of two parallel and equal systems: one consisting of direct exploitation by the enterprise organ of the Authority, the second permitting joint ventures or other forms of contractual arrangements between the Authority and state parties, state enterprises and private corporations. Of these two compromises, the first would require some movement in the official U.S. position; the second, movement on the part of the Group of 77 since the second proposal is substantially the "banking system" already proposed at Geneva by the United States but rejected by the Group of 77.
Turning to the constitutional issues in structuring the Authority, perhaps the two most critical involve the likely composition (and thus the effective voting control) of the planned 36-member Council that will supervise exploitation, and the extent to which the Council's decisions can be controlled or overridden by the plenary Assembly, the "supreme policy-making organ of the Authority," in which every signatory to the treaty will have one vote. As to the composition of the Council itself, the area of compromise would seem to lie in the proper balance of two criteria: the first based on the principle of equitable geographical distribution and the second on the principle of special interest. If the arithmetic of this balance can be struck so as to provide the developing countries with slightly less than an effective majority of seats, while allocating enough seats to the industrialized countries to enable them to block decisions in the Council, a way out of the present impasse might be found. This would require the developing countries to negotiate with other groups. One thing seems clear: neither the Group of 77 nor the United States and the other developed countries are likely to go along with a treaty that gives the other grouping de facto control of the International Seabed Authority.
Although less contentious than deep-sea mining, the problems of the world's fisheries are among the most complex and also perhaps the furthest from rational solution of any set of issues now under consideration. The plain fact is that for fisheries an "exclusive economic zone" out to a 200-mile limit flies in the face of both economic and biologic reality. Schools of fish will, in any case, continue to roam where they will in search of food, influenced by factors such as the warmth of ocean currents and the density of plankton fields that have little if anything to do with national sovereignty or the arbitrary imposition of geographical zones.
While fishing is more important to countries like Japan (where one-half of all protein intake is harvested from the oceans), no country better demonstrates the dilemmas of arriving at a rational policy than the divergent fisheries interests within the United States itself.
American coastal fishermen, less efficient than their foreign competitors, are strong adherents of a fisheries zone-whether achieved by domestic legislation or by international treaty-that will provide them with preferential rights within 200 miles of the American shore. Unfortunately for policymakers, the interests of other U.S. fishermen, most particularly of tuna and shrimp but also of salmon, run almost directly counter. The American tuna-fishing fleet, one of the most efficient in the world, depends on access to wide-ranging tuna schools frequently found within 200 miles of the shores of other countries. Shrimp fishers, who account for almost 25 percent of the total U.S. catch in terms of dollar value, are also dependent on grounds within the 200-mile limits of Mexico, Guyana and Brazil.
U.S. salmon fishers have yet another problem. While considerable capital investment is involved in the maintenance of the rivers and streams in which salmon spawn, much of the adult life of the salmon is spent roaming the North Pacific Ocean before returning to its river of origin. Hence, salmon fishers favor the limitation of the salmon catch in the high seas beyond 200 miles as well as in the proposed 200-mile economic zone; only in this way can enough salmon be assured of returning to the near-coastal areas where the most economic harvest can take place, while still permitting an adequate number to return upstream to permit regeneration of the species.
With these divergent fishing interests, the United States has generally gone along with the worldwide trend toward a 200-mile exclusive economic zone insofar as it affects coastal fisheries. At the same time Washington has urged that the taking of salmon (and similar anadromous species that migrate up rivers from the sea to breed in fresh water) be regulated by the country of origin. Finally, it is the U.S. position that highly migratory species (with tuna as the foremost U.S. interest) should be controlled by international or, at the very least, regional commissions in which the United States would have substantial leverage.
The parallel negotiation of these three American areas of interest would in any event be a complex process. It may have been made somewhat more difficult by the recent action of the Congress in responding to the pleas of coastal fishermen and adopting legislation that would assert unilaterally an American right to control all fishing within a 200-mile zone. The plight of these coastal fishermen is serious; they can legitimately point to the substantial depletion of stocks such as haddock and flounder over the past decade, particularly by intensive Soviet and Japanese activity off American coasts.
Yet, if the 200-mile bill is signed into law-even though its effective date may be delayed, as the Senate has now provided, until mid-1977, and even though the international negotiations are apparently leading to exactly the same basic principles-the practical effect will probably be to weaken American bargaining leverage in other areas. Specifically, the United States may be less able to strengthen the presently inadequate provisions relating to regional cooperation for tuna. And adoption of an immediate U.S. 200-mile zone could upset the continued acceptance of the detailed-and for the United States relatively satisfactory-provisions for anadromous stocks that have already been the subject of painstaking negotiations.
Most seriously, U.S. adoption of the 200-mile zone will almost surely strengthen the hand of those states which want not only preferential fishing rights for coastal states but virtual sovereignty over all activities in the exclusive economic zone. From the standpoint of overall U.S. interest, as well as a more sensible international regime, the United States should be seeking to expand rather than contract the principle of optimum utilization of fish species within the 200-mile area, thus permitting other nations more reasonable rights of access to fish for stocks that are beyond the harvesting capacity of the coastal state. For the same reason, non-fish interests in the zone, including freedom of scientific research and even freedom of navigation itself, could be jeopardized.
Since the Torrey Canyon incident in 1967, protection of the marine environment has become a dramatic and vital concern of all nations in the world. The sharp increase of vessel-source pollution, whether stemming from intentional discharges or from unintentional oil spills, can best be understood by realizing that 25 years ago few if any cargo ships or tankers weighed more than 25,000 deadweight tons. By 1974, 508 of the world's tankers exceeded 200,000 tons and two were in the half-million-ton range.7
Unfortunately, much of the problem of marine pollution is beyond the scope of the Law of the Sea negotiations. Dramatic as the instances of vessel-source pollution have been, it remains true that four-fifths of all ocean pollution comes from land-based sources, not from ships. The best the Law of the Sea Conference can do is adopt the general principles set forth in the Single Negotiating Text, which ask nation-states to establish laws, coordinate policies and cooperate in establishing global rules and standards that will lead to a reduction of land-based pollution.8
As to vessel-source pollution, particularly that caused by oil, the problem, of course, is to strike the proper balance between the undeniable need of the world's oil-consuming countries (99 percent of Japanese petroleum is imported by ship) and the equally obvious need to protect the marine environment against possibly permanent damage. Since everyone, in principle, is in favor of the latter, the question tends to revolve around who should set the standards, who should enforce them and in what areas. Those states with a high interest in international commerce argue against coastal-state standard-setting. They prefer standards established by international agreement with enforcement left in the hands of the flag states for individual ships, coupled in some cases with recognition that port states may set and enforce higher standards for vessels voluntarily using their ports. Canada and other countries argue, with some merit, that international standard-setting-for the past 20 years the prerogative of the Intergovernmental Maritime Consultative Organization (IMCO)-has been too little and too late. IMCO, in which the maritime nations have a major voice, did in 1973 recommend a broad spectrum of new regulations (still to be ratified by the requisite number of member-states). These rules prohibit, for example, oil discharges by ships within 50 miles of the coast and set standards for vessel design, construction, equipment and manning. Enforcement is the problem, of course, since, even if they were able to, the countries harboring flags of convenience-notably Panama and Liberia-have not yet evidenced much desire to enforce even minimum standards.
It was this problem more than any other that led Canada, with only a small merchant fleet of its own and a large portion of its coastline situated in the Arctic areas (where oil spills are vastly more dangerous), to adopt on its own in 1970 legislation establishing a pollution control zone 100 miles from its coastline. While sympathetic with the objectives of the Canadians, major maritime nations, in particular the United States, fear that setting unilateral standards will lead not only to a proliferation of differing standards, but to arbitrary or discriminatory practices on the part of some states that could seriously hamper international commerce.
At present, the Single Negotiating Text tends to favor the maritime nation approach: it calls for international standard-setting (primarily by IMCO) with reliance for enforcement primarily on the flag state and with only supplemental enforcement rights accorded to the port state over vessels voluntarily in their ports and to coastal states over vessels within their territorial seas. In areas of severe climatic conditions or in areas where pollution is likely to be particularly damaging, coastal states are, however, permitted to establish special "nondiscriminatory laws and regulations for the protection of the marine environment."9 While the Committee III Single Negotiating Text, Part III, Article 20 (3.) does contemplate that coastal-states can enact "more effective" pollution control laws and regulations in respect to their territorial seas, provided that they shall not hamper "innocent passage," it is doubtful that the Text as a whole goes far enough to satisfy environmentalists in the United States who look to the national enactment of stringent pollution control measures as the best hope for salvation of the marine environment.
A catalog of ocean issues would be incomplete without reference to the problem of scientific research. This is an issue of particular importance to the Soviets and the Americans who, for military, economic, and pure scientific purposes, have been deeply involved in the conduct of scientific research over the past decades. The principle of "freedom of scientific research," like the principle of full utilization of fish species, runs directly counter to the already noted strong drive for national sovereignty in the 200-mile zone by the more militant countries of the developing world. Some of these countries suspect that oceanography is nothing more than the handmaiden of military domination and industrial exploitation. In the Law of the Sea negotiations, the question has boiled down to whether, within the 200-mile exclusive economic zone, research can be conducted only with the consent of the coastal nation (as presently provided by the Committee II Single Negotiating Text) or whether, as proposed by the United States, no consent should be required, provided that the researching nation gives advance notice to, permits participation by, and shares the fruits of its research with the coastal state in whose waters the research is undertaken.
Although otherwise in favor of freedom of scientific research, the Soviet Union has joined the developing world to the extent of proposing that coastal state consent be required for research "related to the exploration and exploitation of living and nonliving resources" in the 200-mile zone.10 The Committee III Single Negotiating Text attempts to strike some sort of a balance between these two views by distinguishing between research "of a fundamental nature" and research "related to the resources of the economic zone or continental shelf."11 In the case of the latter, coastal state consent is required.
Even if the dubious distinction between "fundamental" and "resource related" research is accepted, the revised text will put fetters on, rather than promote, scientific research. Such research clearly will be necessary if development of oceanic food potential is to be continued, for example. Pioneering work such as that undertaken by Soviet oceanographers which led to the extraction of protein from the almost unlimited schools of the planktonic krill found in the Antarctic Ocean could be seriously set back under the proposed agreement.
One of the few initially encouraging trends that developed in the Law of the Sea negotiations was the surprising degree of progress made at the outset toward agreed procedures for third-party adjudication of disputes arising under the new treaty. At one time or another representatives from 60-odd countries participated in an informal working group. The work of this group finally resulted in an Informal Single Negotiating Text containing 18 articles with several annexes establishing procedures for arbitration and conciliation, calling for a special Law of the Sea Tribunal to decide upon matters in dispute, and further providing that "the parties to the dispute shall be bound by the decisions of the Tribunal made in accordance with this chapter."12 Alternately, disputes may be submitted either to an arbitration panel or to the International Court of Justice, if previously designated by both parties to the dispute.
While Washington has publicly stated that inclusion of comprehensive compulsory dispute settlement procedures in the final treaty will be essential to U.S. agreement, a number of countries, particularly from the developing world, may not yet have focused fully on the dispute settlement procedures as such; their ultimate disposition thus remains in some doubt. The same drive for total sovereignty in the 200-mile economic zone, already noted, led a number of developing coastal states at Geneva to attempt to exclude any dispute concerning the zone from binding third-party settlement procedures. Should this attempt be renewed in later negotiating sessions of the conference, the ultimate success of the conference would be threatened.
The Committee I Single Negotiating Text also provides for a special Tribunal for the proposed International Seabed Authority to adjudicate disputes involving the international area. How this Tribunal relates to the Law of the Sea Tribunal provided in the Single Negotiating Text on Settlement of Disputes remains to be resolved.
As well as demonstrating the great complexity of the issues involved in the negotiations thus far, the foregoing analysis indicates the strong coastal-state bias evident throughout much of the Single Negotiating Text, particularly in the provisions regarding the exclusive economic zone.
From a strictly internationalist point of view (if there remains such a perspective in today's world), two trends are particularly lamentable. Probably the most important is the likely circumscription of scientific research, regardless of the final wording that may emerge from the negotiations. Already oceanographers such as Paul Fye, Director of the Woods Hole Oceanographic Institute, can cite numerous examples of pure scientific work which was either not undertaken or left incomplete for lack of coastal-state clearance. This has resulted in loss, not only to the quest for increased knowledge but, in many cases, to the long-term interests of the very coastal state which for one reason or another had withheld consent for the undertaking.
Particularly invidious is the provision in Part II of the Single Negotiating Text requiring coastal-state consent for scientific research within its 200-mile zone. While Article 49 does provide that such consent shall not normally be withheld in the case of pure scientific research, experience with a similar provision in the 1958 continental shelf convention has been anything but encouraging. This is particularly unfortunate since oceanographers estimate that as much as 75 percent of the important research for the rest of this century needs to be conducted within the areas over the continental margins. It is here that most of the important living and non-living resources are to be found and where the problems of pollution will be the hardest to control.
A second trend is what has happened to the principle of "full utilization" of fish species to provide the maximum protein to feed the world's hungry. While it is true that this principle has found its way into Article 51 of the Single Negotiating Text, it has been placed under three serious impediments. First, through a substitution of "optimum" for "full" utilization, the door has been opened to the introduction of extraneous factors in the very definition of the principle itself. "Optimum" to the coastal state may mean something far less than "full" to the rest of the world. Second, not only is the coastal state given the right to determine its own capacity to harvest living resources, but the obligation to give other states access to the surplus is made subject to "all relevant factors, including . . . the significance of the renewable resources of the area to the economy of the coastal state concerned and its other national interests" [emphasis added].13
Finally, even if one can surmount these obstacles, the coastal state is given express permission to adopt regulations that may include the licensing of fishing, fishermen, fishing vessels and equipment; requiring the landing of any or all of the catch in ports of the coastal state; and "requirements for training personnel and transfer of fisheries' technology including enhancement of the coastal states' capability of undertaking fisheries research."14
The net effect of the foregoing, good intentions to the contrary, is to provide the coastal state with so many handles to avoid meaningful implementation of the principle of full utilization as to render that principle effectively worthless if that is what the coastal state wishes to do. The situation would become even worse if, as already noted, coastal states are successful in eliminating the application of peaceful dispute settlement procedures to the economic zones-even to disputes arising from an abuse of rights or duties otherwise imposed by the convention on coastal states.
It should be noted, however, that even in the exclusive economic zone (which by its very terms correctly implies the extent to which control over resources has been accorded to the coastal state), international freedom of air, surface and subsurface navigation seems likely to survive relatively unscathed.
In the deep-ocean area, evaluation from an internationalist perspective becomes more complex, for here traditional international freedoms (which amount to first-come, first served) conflict not with national but with international control. While it is true that problems of the deep-ocean area, with their overlay of the major ideological differences that divide the developed from the developing world, may be the most difficult to resolve, this is also the area of greatest long-term promise. If the negotiations do result in a generally acceptable treaty containing provisions for the joint sharing of resources of the ocean bed, a major contribution will have been made not only in terms of the orderly development of ocean resources but in the establishment of a prototype that will suggest solutions for other seemingly intractable areas of potential international conflict. Luckily there are pragmatic forces that may lead to such a compromise. When all is said and done, the developed world in particular needs the mineral resources and the developing world the revenues, small as they are likely to be at the outset.
Three questions remain to be asked: What is the prognosis for the emergence of any treaty in the near future? Even if enacted, is it likely to be desirable? And finally, what is likely to transpire if the process fails? No one of these questions can be considered in isolation from the others. For one thing, even if the international negotiating process were to collapse tomorrow, the Single Negotiating Text would have left a heavy imprint on the subsequent development of ocean law.
What then is the prognosis? With a Single Negotiating Text finally in hand, there is at least a reasonable chance that the negotiators will, if two substantive sessions are indeed held during 1976, arrive at a final text within the next 15 months that will be generally acceptable to most states. Even though final ratification of an agreed text will be likely to take years in any case (and serious problems may arise during such a ratification period), the achievement of an agreed final text would be a very great one.
Does such a text now seem possible? For one thing, unless substantial progress is made in 1976, the attempt to stem the flow of further major unilateral encroachments is likely to prove impossible.
Secondly, while the treaty will satisfy no state entirely, it is likely to contain something of major importance to everybody that would not be assured to them in the absence of a comprehensive treaty. Coastal states do get their exclusive economic zones, the great powers their rights of unimpeded transit through straits, and if deep-sea issues are resolved, the developing countries will not only have an organization in which they will clearly have a major voice, but the promise of important financial returns as well. From this perspective at least, the conference leaders are wise to push for a comprehensive treaty, or none at all.
If it proves impossible to arrive at substantial agreement on major portions of this comprehensive treaty in the next 15 months, the situation will probably unravel-particularly since, without substantial agreement on the whole, it seems unlikely that agreement on any portion of the subparts will be reached in mini-conventions as was the case in 1958. The conference has been costly both in terms of money and manpower, particularly to the developing countries; many are likely to decide that, should the present momentum be lost, they had better get what they can on their own or through regional agreements.
While some Americans have argued that the United States, with its advanced technology, lengthy coastlines and broad margins, has little to lose should the conference fail, even this is questionable. A representative of one of the American companies that has taken a lead in the development of deep-sea mining technology said to me at the close of the Caracas session that, while the conditions of exploitation were indeed important to the mining companies, what they needed above all was relative certainty about the conditions under which they would operate. Thus, almost any resolution of the debate over conditions of exploitation would be preferable to the chaos that might otherwise result, even though no treaty might be to the advantage of U.S. mining firms in the short run.
A similar overriding desire on the part of other delegations for certainty as opposed to chaos is likely to be the strongest single factor contributing to the ultimate success of the conference. If no treaty at all emerges, we are likely to witness not only the increasing assertion of national claims, but also increasing conflicts among claimants, as both the number of ocean uses and the number of users increase. Then indeed we will see more of what has already been aptly called, by Lord Ritchie Calder, "the biggest smash and grab since the European powers at the Berlin Conference in 1885 carved up black Africa."
1 Note verbale to Secretary-General U Thant, United Nations General Assembly Doc. A/6695, 22nd Session, August 18, 1967.
2 Mare Liberum, 1605, trans. Ralph Van Deman Magoffin, London: Oxford University Press, 1916.
3 United Nations Third Conference on the Law of the Sea Informal Single Negotiating Text (A/CONF.62/WP.8), Parts I, II and III, May 7, 1975. For a comprehensive analysis of the single negotiating text, see John R. Stevenson and Bernard H. Oxman, "The Third United Nations Conference of the Law of the Sea: The 1975 Geneva Session," The American Journal of International Law, October 1975.
4 United Nations Third Conference on the Law of the Sea Informal Single Negotiating Text (Settlement of Disputes-A/CONF.62/WP.9), Part IV, July 21, 1975.
5 Thirty landlocked countries, ranging from Austria, in the developed world, to Zambia in the Group of 77, have no economic zones at all, and an additional 20, such as Belgium, Singapore and Zaïre, have only limited zones. Under conference rules, these "geographically disadvantaged" states together have a blocking third of the votes at the Conference.
7 Noël Mostert's Supership (Knopf, 1974) provides a fascinating account of life aboard a tanker in the 200,000-ton range and of the problems inherent in large tanker operation.
8 Single Negotiating Text, Part III, Article 16.
9 Single Negotiating Text, Part III, Article 20(5).
10 United Nations Law of the Sea Conference Doc. A/CONF.62/C.3/L.26, April 3, 1975.
11 Single Negotiating Text, Part III, Article 18.
12 Single Negotiating Text, Part IV.
13 Single Negotiating Text, Part II, Article 51(3).
14 Single Negotiating Text, Part II, Article 51(4).