The seas and oceans of the world have played an important part in the life of human societies since man first put out from shore, and have been, inevitably, the subject of strife and contention.
Many peoples throughout history have sought trade, fishing grounds, and political power on the seas. Newfoundland, for instance, Britain’s first overseas colony, was settled because of the rich fishing grounds of the Western Atlantic. The protection of fishing grounds to preserve a vital food resource dates back to medieval times among several European countries where such protection was a matter of public policy. In subsequent centuries, sea power was crucial in the wars that settled the political fate of Canada, of the American colonies, and, in the nineteenth century, of the emerging nations of Latin America. As nations expanded, the breadth and range of ocean use, and basic issues such as rights of passage, searches and seizures, and the limits of territorial waters, all had to be resolved before beneficial use could be assured.
Thus, by treaties going back to the beginning of the seventeenth century, and later in the form of clauses in bilateral or multilateral documents that ended hostilities, a body of law governing certain uses of the sea was evolved, recognized in varying degree by all nations. The Declaration of Paris in 1856, for instance, signed by most of the world powers (the United States being a notable exception), was a compromise solving the problem of the transport of goods at sea in neutral vessels during times of war. Separate treaties such as those between fishing and whaling nations proliferated. Rules covering naval warfare, territorial waters, and problems of national jurisdictions over vessels at sea have evolved from a basis of international cooperation which, though tested severely at times, has up to now served rather well.
Historically, conventions governing the traditional uses of the oceans were primarily designed to protect the users from each other. But now, as shortages of food and raw materials and the expanding potential of technological advances are combining to threaten the last of the world’s great unenclosed spaces, the oceans themselves are in need of protection. The questions that arise are urgent.
Who has the right to the fish—the factory ships that can harvest vast tracts of the ocean, or the local, land-based fishermen?
Who has the right to explore for the oil and the minerals—the countries who can afford it?
And who, finally, will be responsible for conserving the oceans and preventing irrevocable damage being done to an area that occupies five sevenths of the earth’s surface?
Fish has become a vital source of protein to all of us (as the effects of the 1972 crop failures showed), and existing regulations are incapable of controlling exploitation. One quarter of the world’s catch—17½ million metric tons (excluding whaling)—is brought in by the expeditionary fleets of the U.S.S.R. and Japan, using all the methods that modern technology can provide, including acoustical devices, electric fields, and suction pumps. These factory fleets are continually depleting the resources on which the local land-based industries survive. Coastal countries are claiming exclusive fishing rights over increasingly wider areas beyond their shores. By 1973 only 34 coastal states (out of a possible 115) adhered to the 1958 Geneva Conventions on Fishing and Conservation which limit their exclusive rights to within 12 nautical miles of their shores. Chile, Mexico, Nicaragua, and Peru, by the same date, were claiming rights up to 200 miles away. There is evidence that catches are falling: from 1956 to 1970 they grew at an average rate of 6 per cent a year; since 1970—although this may also reflect some cyclical factors—they have been dropping; overexploitation is already taking place.
Fish has been the traditional resource of the sea, but as technology improves and extends under pressure for ever more raw materials, the potential wealth beneath the oceans is becoming ever more apparent. At least 30 common minerals, or groups of minerals, are known to exist in the sea—world production of them came to over $7 billion in 1969. Of that amount, $6.1 billion came from oil and gas—15-18 per cent of total oil and natural gas production. Estimates prepared for the UN show that there may be 170 billion barrels of proven reserves of oil and 2.3 trillion barrels of exploitable resources beneath the sea—and these estimates are conservative. Almost 90 per cent of these resources are believed to occur within 200 miles from the shore. So far, oil has been exploited on the continental margin, but rigs capable of drilling in depths of over 300 meters have already been produced. It only remains for the price of oil and gas to rise sufficiently to cover the cost of the deep-sea oil recovery and for the technical aspects to be perfected. Since 1958, coastal countries have been allowed sovereign rights to control the exploitation of nonrenewable resources on their own continental shelves. But the definition of continental shelf is imprecise. The 1958 Geneva Convention fixed the outer limits either at where the water had a depth of 200 meters or at greater depths where it was technically practicable to extract resources, implying that if a country was able to drill deeper, it would be allowed to.
Beyond the continental shelf, lying on the ocean bed, are manganese nodules—small, metallic objects, typically consisting of 25 to 30 per cent manganese, 1.0 to 1.5 per cent nickel, 0.5 to 1.0 per cent copper, and 0.25 per cent cobalt. To meet the world’s current annual needs for manganese and cobalt from these nodules would only require mining an area less than 0.001 per cent of the total ocean bed. Over 30 major concerns are actively engaged in exploration, development, and equipment construction. Mining would require the technology to work at depths of 3,500 to 4,500 meters, but this is no longer an impossibility; the recovery of mineral resources from the seabed lies well within the foreseeable future. The UN Secretariat concluded in a recent document: “For deep ocean mining of manganese nodules, the major problem is no longer a technical one but foremost legal and political.”
These nodules are the best known of the mineral resources of the sea; but there are others. The metalliferous muds and brines recently discovered in the Red Sea contain concentrations of heavy metals, such as iron, zinc, copper, lead, silver, and gold, of a possible total value of $2 billion to $5 billion. Yet it is the manganese nodules that lie at the heart of both the controversy and the promise concerning ocean resources. The controversy over who shall exploit the nodules, and for whose benefit, coincides with fears of natural resource shortages, either physical or artificial, and dissatisfaction, especially among the developing countries, with the traditional arrangements for revenue sharing in mineral “enclave” projects. The nodules issue is thus an extension of the broader one of natural resource development.
The problem of waste
One of the most pressing problems regarding the sea today concerns not its resources, but its conservation. There are limits to the amount of waste that can be absorbed by the oceans. Already, fish catches in the Baltic and the Caspian seas have decreased by 90 per cent during the past 40 years. An International Convention on the Dumping of Wastes at Sea was signed by 90 states in 1972 to restrict dumping toxic wastes beyond the continental shelves. It is not yet ratified, and even when it is, who will police it? With exploration and mining at sea increasing, so, in all probability, will the amount of waste.
Routine bilge and ballast operations by general shipping, as well as leakages and major spills by oil carriers, pose a serious and ever-present threat to marine life. Although major spills are the most spectacular violations occurring, once cleaned up, the sea does seem to recover; there are few traces left today of the Torrey Canyon disaster. The real threat over the long run comes from constant spillage in confined areas—the waters become too bruised to breathe and to recover—and life slowly dies. The Cape of Good Hope region has been suffering this kind of steady abuse since the closing of the Suez Canal, from the concomitant increase in shipping around the Cape, and the vulnerability of very large crude carriers to the heavy seas in that area. Urgent research is needed into the ecological balances of sea life, and how they are affected by pollution. As scientific knowledge stands now, we do not know how much damage the oceans can survive.
Other ocean uses
The diverse uses of ocean space, though many of them age-old, are the subject of fresh controversy since this very space stands to be carved up politically under any form of new agreement. The extension of territorial waters to 12 miles, for example, would transform 116 straits (many of them on major trade routes) into national arteries. Military uses, no matter how controversial, are not open to discussion. In the case of transportation, trade and costs are at stake; the principle of free passage is inviolable unless we wish to disrupt world trade. Scientific research in the oceans, as in space, has a history of cooperation and regulation; the basic principle to be safeguarded here is that of an “open-door” policy concerning the sharing of the knowledge acquired.
Dealing with this range of problems to every country’s satisfaction is a difficult and probably impossible task. The diverse uses of the oceans interlock, interrelate, and interconnect. Waste disposal, for example, interferes with fishing and recreation; mining may upset ocean ecology; shipping may increase the hazard of pollution. Geography and geomorphology do not lend themselves to precise measurement nor to the establishment of visible or identifiable boundaries meeting uniform criteria. The depth and breadth of the continental shelf—which has always figured prominently in new definitions of zones subject to political or economic control—cannot be ascertained with equal confidence in every case. Since geological formation varies, the area of the seabed up to various proposed limits of national jurisdiction, whether 12 or 200 miles, is disproportionate to coastal length. Nor can countries be categorized neatly by interest groups, since their positions are shaped by a variety of factors such as development level, geography, pattern of consumption, trade and output, political and economic alliances—and expectations.
Background to the conference
The oceans contain enormous resources of energy, food, and raw materials. Judiciously exploited, these resources can make a significant difference to man’s survival and the quality of his life in an overpopulated world. Some operational framework for safeguarding the interests of all nations must clearly be formulated to prevent those nations who possess the technology and can afford the research and exploitation from obtaining the wealth for themselves. The UN, in its Resolution, called for the conference to be held in Caracas to: “Deal with the establishment of an equitable regime—including an international machinery for the area and the resources of the seabed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, a precise definition of the area, and a broad range of related issues….”
This conference represented the culmination of long-standing efforts. The First Conference on the Law of the Sea, held in Geneva in 1958, led to the adoption of four conventions, embodying such principles as the freedom of the high seas, rights of innocent passage through territorial waters and international straits, rights of vessels of all states to fish the high seas, the rights of coastal states on the continental shelf, the rights of landlocked states concerning access to the sea, and comprehensive provisions for settling fishing disputes and conservation matters through the offices of an independent commission. They have been ratified by less than half of the nations of the world.
In 1960, a Second Conference was called to deal with two principal problems left unresolved—the breadth of the territorial sea and fishery limits—and failed to adopt any substantive new proposal. In 1968, the UN General Assembly established the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction—or the Seabed Committee. A year later, in December 1969, the General Assembly adopted a resolution declaring a “moratorium” on all exploitation of deep seabed resources pending the establishment of a deep seabed regime. Two other important resolutions were adopted in 1970. The first affirmed that the ocean floor, beyond the limits of national jurisdiction and its resources, are “the common heritage of mankind”; the second called for the convocation of the Third Law of the Sea Conference in 1973 (later to be rescheduled to 1974) and entrusting the Seabed Committee with all preparatory work and with the task of drafting treaty articles as well as a conference agenda in the form of a “list of issues” to be dealt with by the conference.
The Caracas conference
The work of the Third Law of the Sea Conference was organized into three committees: Committee I dealt with the proposed international regime for the seabed, in particular the question of who should be given the right to mine the seabed and under what conditions; Committee II covered all other matters concerning the law of the sea, such as the definition of legal and economic boundaries and rights or duties, the regime of straits and archipelagos, settlement of disputes, and the rights of landlocked countries; and Committee III was assigned scientific research, marine pollution, and transfer of technology.
So little was achieved at the conference that a summary is unwarranted; rather, let us speculate on why the conference did so little, and what this implies for future international negotiations.
First, there were too many constituent parts to the issue, all of them interconnected. No disposition of rights could be made on any subject without first defining the subject itself. Second, the potential of the oceans has been measured thus far more in terms of “maybe’s” than empirical data, and newly independent countries which had not participated in the earlier stages of the debate found it especially difficult to evolve a position on the issues. Third, after the initial flush of goodwill and group solidarity, countries are ultimately bound to take a stand on the basis of purely national interest—and it requires time and care to prevent this happening.
The most optimistic interpretation of the conference would be to feel that differences among nations have been pinpointed and narrowed down, thus facilitating, in principle, future progress. A more cynical view would hold that the substantive failure of the conference was preordained, given the deterioration of the world economic situation and of the climate for international cooperation. Environmentalists, oceanographers, and social activists were dismayed at the popularity of the 200-mile limit concept at the conference, which is seen as an attempt at de jure colonization of the oceans, bringing with it, they believe, sure failure to control pollution, expand scientific research, and keep the wealth of the oceans internationally available.
To try to institute a system of government for the oceans is fraught with obvious difficulties. Failure to come to an agreement would further undermine confidence in the viability of international action to bring about peaceful political and economic relations in other spheres. On the other hand, if agreement at a future conference could be realized only by abandoning the principle of internationalism, embodied in the concept of the oceans as the common heritage of mankind, this would be the greater failure.
Internationalism in this context need not aim at supranational administration and safekeeping of the oceans; what is needed, rather, is the formulation and acceptance of guidelines to ensure that the oceans benefit the greatest number of nations. This would require nations with immediate economic and political stakes in the oceans and the power to enforce their self-interest to hold off that very power and to weigh self-interest against the long-term interest of the concert of nations.
If developing countries find it hard to compromise on this operative principle of internationalism, it is because their development depends on both individual and international effort. Their position is illustrated by the problem of how to handle the harvesting of the manganese nodules from the seabed. Developing countries now produce 35 to 40 per cent of the metals contained in the nodules. Several of them, such as Zaїre and Zambia, depend heavily on them. These countries in particular, with considerable justification, are afraid that seabed mining may eventually displace their output or depress their revenues unless it is properly regulated. The prospects of a development fund created out of seabed-mining revenues does not especially excite them at this stage, since they are more keenly interested in participating in the action than in handouts. They see the problem posed by seabed mining as a test case for the equitable solution of international problems involving, for example, the distribution of the benefits of technology. With their long and painful history of receiving the short end of the economic stick, they are particularly anxious not to be excluded from this new economic frontier. The developed countries, on the other hand, feel compelled to plan long term in response to changed realities; their projected oil import bill of unprecedented magnitude, for instance, is a strong impetus to cut other national resource outlays and at the same time guarantee that these resources will remain available.
It should be emphasized in this connection that world land-based resources of the four minerals found in the manganese nodules are ample for the next 30 years. There is no evidence that obtaining minerals, very likely at lower prices, from the oceans would measurably benefit the economic well-being of the developed countries in the immediate future, nor that the benefits of such improvement would spill over significantly to the developing countries. Since there are no demonstrable immediate large benefits from seabed mining, one can argue that there is no demonstrable urgency to institute arrangements that are unacceptable to all parties concerned and inequitable in design. But in the long run the question takes on an entirely different perspective. If technological obstacles to large-scale nodule mining are overcome (or if no new obstacles arise), ocean resources can offer strong and lasting cost advantages to today’s industrialized countries as well as to tomorrow’s large consumers among currently developing countries. Consequently, in the long run the interests of rich and poor countries converge.
The developing countries are reluctant to compromise on basic issues; theirs is the larger problem and, for them, the minimum condition of an international agreement is the absence of additional obstacles to attainment of their development goals. To act responsibly, industrialized nations should be sympathetic to this attitude and not be tempted to act on their own out of impatience.
But a development like seabed mining will be acted upon by those equipped to act when the time comes—if need be, unilaterally. Slow progress in reaching a general agreement will make this inevitable. A balance will have to be struck between reality and the ideal of cooperation.
While all these issues are under debate, the daily abuse of the oceans continues. We have no scientific basis yet for judging how much abuse is too much and efforts must be made to construct one. One way to ensure greater protection of the oceans from pollution might be to give existing agencies with responsibility in this field—e.g., the Inter-governmental Maritime Consultative Organization (IMCO), the UN Environment Program (UNEP)—temporary emergency powers to suggest and enforce remedies against the most blatant offenses.
Lastly, agreement on the oceans, even if it comes at the next Law of the Sea Conference, is not the final step in attempting to manage resources for the future. Resource management must ultimately extend to all resources on a global basis to ensure survival. The concept of international resource management is new, difficult, and pressing—and complex enough to engage the ingenuity of scientists and decision makers for the next generation.