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The Legal Regime of the Deep-Sea Floor

Published online by Cambridge University Press:  28 March 2017

Richard Young
Richard Young*
Affiliation:
Of the Board of Editors
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Extract

In the decade since the Convention on the Continental Shelf was framed at Geneva, the possibilities of reaching and using the mineral resources of the ocean have continued to open up at an unprecedented rate. Exploitation of oil and gas deposits in the continental shelves is now a commonplace, and such production has become an important part of the world’s normal supply. The technological frontier, pushed forward by the explosion of interest in the ocean sciences during the last few years, is now advancing into the deep sea beyond the limits of the geographical shelves, and the pace may be expected to accelerate in the next decade.

Type
Research Article
Information
American Journal of International Law , Volume 62 , Issue 3 , July 1968 , pp. 641 - 653
Copyright
Copyright © American Society of International Law 1968

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References

1 15 U.S. Treaties 471; 52 A.J.I.L. 858 (1958).

2 At least 18 nations are now reported to possess commercial production offshore of oil and gas, while at least 60 are engaged in exploration or development. Some 11% of world oil and 6% of world gas production comes from offshore areas. Coene, “Profile of Marine Resources” (paper presented at the Conference on Law, Organization and Security in the Use of the Ocean, Columbus, Ohio, March 17-18, 1967), pp. 3, 6. This conference, under the auspices of the Mershon Social Science Program of Ohio State University and the Carnegie Endowment for International Peace, is hereafter referred to as the “Columbus Conference.“

3 Christy, “Realities of Ocean Resources” (paper presented at the Marine Frontiers Conference, University of Rhode Island, July 27-28, 1967).

4 The useful term “ocean space” has been defined as comprehending “water surface, water column, seabed, and subsoil.” Griffin, “The Emerging Law of Ocean Space,” 1 International Lawyer 548 (1967).

5 Craven, ‘’ Sea Power and the Sea Bed,'’ U.S. Naval Inscitute Proceedings, No. 758, p. 36 (April, 1966); Goldie, “ ‘Submarine Zones of Special Jurisdiction’ Under the High Seas—Some Military Aspects,” in Alexander (ed.), The Law of the Sea: The Future of the Sea's Resources (Proceedings of the 2nd Conference of the Law of the Sea Inscitute, University of Rhode Island, June 26-29, 1967) 100-112 (1968). This volume is hereafter cited as “Proceedings, 1967 LSI Conference.“

6 As had been foreseen, this problem has already become important in continental shelf areas. Current efforts to reconcile shipping, fishing, and oil interests in the Gulf of Mexico afford a good example. See Griffin, “Accommodation of Conflicting Uses of Ocean Space with Special Reference to Navigation Safety Lanes,” Proceedings, 1967 LSI Conference 73-83.

7 In the United States, for example, approximately 90% of the magnesium metal and 35% of the bromine produced are normally derived from sea water. U.S. Bureau of Mines, Mineral Facts and Problems (Bulletin 630) 159, 537 (1965).

8 Thus in August, 1967, two divers, using the technique of saturation diving, performed maintenance work on a well-head on the bottom of the Gulf of Mexico 40 miles offshore at a depth of 636 feet. Although admittedly in the nature of a special demonstration, the operation foreshadows things to come. Undersea Technology Washington Letter, Sept. 4, 1967, p. 1.

9 Coene, loc. cit. note 2, above, p. 5. Some drilling devices for special scientific purposes have much greater depth capability, but are not designed for commercial use. I t may also be noted that the U.S. Department of the Interior has granted oil and gas leases in depths of up to 1,500 feet off the coast of Oregon. Barry, “Administration of Laws for the Exploitation of Offshore Minerals” (paper presented at the American Bar Association Inscitute on Marine Resources, Long Beach, California, June 7-10, 1967). The proceedings of this conference, hereafter referred to as the “Long Beach Conference,” are to be published during 1968.

10 Mero, The Mineral Resources of the Sea 57-73, 252-272 (1965).

11 Brooks, “Deep Sea Manganese Nodules: From Scientific Phenomenon to World Resource,” Proceedings, 1967 LSI Conference 32, 35.

12 Coene, loc. cit. note 2 above, p. 14.

13 Mero, op. eit. note 10 above, 289-290; Craven, “Technology and the Law of the Sea” (paper presented at the Columbus Conference, 1967) 35-36.

14 1956 I.L.C. Yearbook (I) (8th Session) 135, 137 (remarks of Professor Scelle, Sir Gerald Fitzmaurice, and Dr. Garcia-Amador); Burke, “Legal Aspects of Ocean Exploitation—Status and Outlook,” 1966 Transactions of the Marine Technology Society 1, 13-14. But see Oda, International Control of Sea Resources 167-168 (1963), where it is suggested that, whatever the delegates at the Conference had in mind, the only logical interpretation of the provision is that it effected an allocation among coastal states of all submarine areas of the world.

15 In the Fourth Committee of the 1958 Conference, Dr. Mouton of The Netherlands observed that “beyond the outer limit of the submarine areas over which the coastal State enjoyed limited sovereignty, the situation was governed solely by the regime of the high seas; there was no longer any question of exclusive rights … “ 6 Official Records 44 (U.N. Doc. A/Conf. 13/42). This statement passed without challenge.

16 Supporting the view expressed in the text are Oda, op. cit. note 14 above, p. 167; and Dean, “The Law of the Sea Conference, 1958-60, and its Aftermath,” in Alexander (ed.), The Law of the Sea: Offshore Boundaries and Zones (Proceedings of the 1st Conference of the Law of the Sea Inscitute, University of Rhode Island, June 27-July 1, 1966) 244, 247-248 (1967), hereafter cited as “Proceedings, 1966 LSI Conference.“ Contra, Ely, “The Administration of Mineral Resources Underlying the High Seas” (paper presented at the Long Beach Conference, 1967).

17 “Waldock, “The Legal Basis of Claims to the Continental Shelf,” 36 Grotius Society Transactions (1950) 115-118 (1951); 1 Oppenheim, International Law (8th ed., by Lauterpacht) 628-631 (1955).

18 Hurst, “Whose Is the Bed of the Sea?” 4 Brit. Yr. Bit. Int. Law 34 (1923- 1924); 1 O'Connell, International Law 569-571 (1965). Although these instances generally occurred in areas which would today be subject to the continental shelf doctrine, they were formerly explained and justified on grounds of occupation or, alternatively, in terms of prescription. Either approach necessarily involved the premise that it was legally possible to acquire rights over bottom areas.

19 13 U.S. Treaties 2312; 52 A.J.I.L. 842 (1958).

20 Ely, “The Laws Governing Exploitation of the Minerals beneath the Sea,” pp. 11-12 (paper presented before the New York Section, American Inscitute of Mining, Metallurgical and Petroleum Engineers, Jan. 8, 1966); Ely, “The Administration of Mineral Resources Underlying the High Seas,” loc. cit. note 16 above.

21 Christy, “Economic Criteria for Rules Governing Exploitation of Deep Sea Minerals,“ 2 International Lawyer 224-242 (1968). See also, for an elaborate examination of policy issues, the speech of Ambassador Arvid Pardo, representative of Malta, in support of the Maltese proposal described below, before the 1515th and 1516th meetings of the First Committee of the General Assembly, Nov. 1, 1967 (U.N. Docs. A/C.1/P.V.1515 and P.V. 1516).

22 Clipperton Island Case (Mexico-France), Award of Jan. 28, 1931. 2 Int. Arb. Awards 70; 26 A.J.I.L. 390 (1932).

23 A map sketching the results of such a division, prepared by Messrs. Christy and Herfindahl, appears as an insert in Proceedings, 1967 LSI Conference.

24 It is possible to conceive of a modified system of allocation which would eliminate some of these inequities, but there would continue to be great difficulty in framing generally acceptable rules. For an elaborate scheme along these lines, see Bernfeld, “Exploitation of Minerals in and under the Seas,” in Southwestern Legal Foundation, 1967 Symposium on Private Investors Abroad—Problems and Solutions 337-390 (1967).

25 The dispute-settlement provisions of the Geneva Convention on Fishing suggest the kind of arrangements that might be possible. 17 U.S. Treaties 138; 52 A.J.I.L. 851 (1958). Proposals of this general type are outlined in Goldie, “The Geneva Conventions and the Need for Future Modifications,” in Proceedings, 1966 LSI Conference 273, 280-285.

26 Among statements supporting the general view noted in this paragraph are: Commission to Study the Organization of Peace, 17th Annual Report, “New Dimensions for the United Nations,” pp. 36 ff. (1966); Christy, “Alternative Regimes for the Minerals of the Sea Floor” (paper presented at the Long Beach Conference, 1967); and the speech of Ambassador Pardo cited in note 21 above. See also Res. No. 15 adopted at the Conference on World Peace Through Law held at Geneva in July, 1967, recommending a proclamation by the General Assembly to the effect that “the non-fishery resources of the high seas, outside the territorial waters of any State, and the bed of the sea beyond the continental shelf appertain to the United Nations and are subject to its jurisdiction and control.” The legal effect of such a “proclamation“ would seem uncertain.

27 International agreements relating to the Antarctic and outer space are often cited as precedents for what might be done with the ocean bottom. See the Antarctic Treaty of Dec. 1, 1959, 12 U.S. Treaties 794, 54 A.J.I.L. 477 (1960); Treaty on Outer Space of Jan. 27, 1967, T.I.A.S., No. 6347, 61 A.J.I.L. 644 (1967). While instructive, the analogies from these situations should not be pushed too far; there are already in existence many established interests in ocean space which cannot be disregarded

28 For penetrating comments to this effect, see Burke, ‘ ‘ A Negative View of a Proposal for United Nations Ownership of Ocean Mineral Resources” (paper presented at the Long Beach Conference, 1967). See also Bernfeld, “Developing the Resources of the Sea—Security of Investment,” 2 International Lawyer 67-76 (1967).

29 General Assembly Res. 2172 (XXI), Dec. 8, 1966

30 U.N. Doe. A/6695, Aug. 18, 1967.

31 General Assembly Res. 2340 (XXII), Dec. 18, 1967; reproduced in part in 62 A.J.I.L. 487 (1968).

32 The members of the committee are Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Ceylon, Chile, Czechoslovakia, Ecuador, El Salvador, France, Iceland, India, Italy, Japan, Kenya, Liberia, Libya, Malta, Norway, Pakistan, Peru, Poland, Romania, Senegal, Somalia, Tanzania, Thailand, U.S.S.B., United Arab Republic, United Kingdom, United States, and Yugoslavia. The first meeting of the committee took place in March, 1968.

33 In addition to the General Assembly actions, attention has also been given to the problem of deep-sea resources in other bodies, notably the International Oceanographic Commission o£ UNESCO. On the unoflicial side, it may be noted that the International Law Association established in 1967 an International Committee on Deep-Sea Mining which is scheduled to present a preliminary report to the I.L.A. Conference in Buenos Aires in August, 1968.

34 80 Stat. 203, 33 U.8.C. secs. 1101-1108.

35 See Marine Science Affairs—A Tear of Transition: First Report of the President to the Congress on Marine Resources and Engineering Development (1967); and Marine Science Affairs—A Year of Plans and Programs: Second Report of the President (1968).

36 Most notably, perhaps, in the resolution introduced in the Senate by Senator Pell of .Rhode Island. This called for efforts to secure General Assembly action on a proposed “Declaration of Legal Principles Governing Activities of States in the Exploration and Exploitation of Ocean Space.” The annexed declaration envisaged free access by all nations to all areas of ocean space (outside of territorial waters and continental shelf), the rejection of national claims to ocean space, and the creation of a U.N. authority to grant exploration and exploitation licenses to states and international organizations. For the purposes of the declaration the limit of the shelf was set at the 600-meter depth line. S. Res. 186, 90th Cong., 1st Sess. (Nov. 17, 1967). No action has been taken on this proposal. A revised version, setting forth a draft treaty instead of a declaration, was embodied in S. Res. 263, introduced by Senator Pell on March 5, 1968