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Deep sea-bed resources: a major challenge

Published online by Cambridge University Press:  16 January 2009

D. W. Bowett
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Extract

There is no novelty in the idea that technology presents a continuing challenge to Society in terms of the decisions which must be taken over the use and control of new developments and, indirectly, to the legal system which must acquire and apply the techniques of control desired by Society. However, there is novelty in the sheer pace at which technology is presenting this challenge to international society in relation to the exploitation of the resources of the sea. Within little more than a decade after the great U.N. Geneva Conferences on the Law of the Sea of 1958 and 1960—which introduced substantial codification—a general demand for revision of the law has led to plans for a new Conference on the Law of the Sea in 1973. The scope of the proposed conference is extremely wide and it is the purpose of this article to examine only one of the proposed topics, namely, the “international sea-bed area.” This is a topic which is currently exciting interest throughout the world, in Parliaments, Foreign Offices, Universities, learned societies, conferences, oil companies and even the popular press (the order does not indicate a hierarchy of influence). Behind this interest there lies, of course, money and—possibly a countervailing pressure—the increasing concern with the protection of the maritime environment in addition to the normal considerations of prestige, military security and national interest which condition any State's approach to questions of maritime jurisdiction. In order to appreciate the extent of this interest some brief mention should be made of the resources currently estimated to lie in or on the sea-bed outside national jurisdiction.

Type
Research Article
Information
The Cambridge Law Journal , Volume 31 , Issue 1: Jubilee Issue , April 1972 , pp. 50 - 66
Copyright
Copyright © Cambridge Law Journal and Contributors 1972

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References

1 General Assembly resolution 2750 C (XXV) of 17 December 1970 decided by a vote of 108 to 7 with 6 abstentions to convene such a conference.

2 This resolution provides that: “The Conference would deal with a precise definition of the international sea-bed area; the regimes of the high seas, the continental shelf, the territorial sea (including its breadth and the international straits) and contiguous zone; fishing and conservation of the living resources of the high seas (including the preferential rights of coastal States); and the preservation of the marine environment, including the prevention of pollution; and scientific research.”

3 See H.L.Deb., 25 November 1970, cols. 152–228 for a useful and comprehensive debate.

4 See Joint Report of the Section of International and Comparative Law, the Section of Natural Resources Law, and of the Standing Committee on World Order under Law of the American Bar Association, August 1969, pp. 5–6.Google Scholar

5 Leases have been taken off San Diego, California; on the Australian continental shelf and on the Chatham Rise about 200 miles east of New Zealand: see Christy, “Marigenous Minerals: Wealth, Regimes and Factors of decision” in Symposium on the International Regime of the Sea-Bed: Proceedings (1970), 113 at pp. 119–120.Google Scholar

6 Mero, The Mineral Resources of the Sea (1965), pp. 174, 225–230; Sorensen and Mead, “A Cost-Benefit Analysis of Ocean Mineral Resource Development: the Case of Manganese Nodules” (1968) 50 American Journal of Agricultural Economics, pp. 1611–1620.

7 For example, Christy, loc. cit., p. 115, estimates gold in sea-water to be equivalent to 5 million tons, worth $5 trillion, but regards the recovery of such deposits as totally uneconomic. For a useful and detailed summary of resources, see also Christy, “Economic Problems and Prospects for Exploration of the Resources of the Sea-Bed and its subsoil” in Proceedings of the Symposium on the Exploration and Exploitation of the Sea-bed and its subsoil, The Council of Europe, Strasbourg, 3–5 December 1970.

8 Goldie, “The Exploitability Test—Interpretation and Potentialities” (1968) 8 Natural Resources Journal, 434 at p. 448.

9 Jennings, R. Y., “The limits of Continental Shelf Jurisdiction: some possible implications of the North Sea Case Judgment” (1969) 18 I.C.L.Q. 819.CrossRefGoogle Scholar But see Johnson, “The North Sea Continental Shelf Cases” (1969) 3 International Relations 522, for a more restrictive interpretation of the Judgment of the I.C.J.

10 1969 I.C.J. Reports 3.

11 It must be remembered that, since W. Germany was not a party to the 1958 Convention, the Court was applying principles of general, customary law.

12 Ibid., p. 22.

13 Report on a Régime for the Exploration and Exploitation of the Mineral Resources of the Ocean Bed (1970)Google Scholar, Annex I.

14 Supra, n. 4, p. 36.

15 See Krueger, “Mineral Development on the Continental Shelf and Beyond” (1967) California State Bar Journal, 515 at pp. 521–522, who reports the grant of licences by the Department of the Interior or other assertion of jurisdiction over the Cortes Bank (120 miles south-east of San Diego, with most areas deeper than 200 metres) and off Florida in areas where the depth ranges from 650 to 5,000 feet and which lie as far as 300 miles offshore.

16 Text in Report of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the limits of National Jurisdiction G.A.O.R., 25th Session, Suppl. No. 21, A/8021, Annex V: also in 9 Int.Legal Materials (1970)Google Scholar No. 5, 1046. For a general commentary on the U.S. proposals see Auburn, “The International Seabed Area” 20 I.C.L.Q. (1971), 173–194.

17 Prima facie because the true significance of the offer has to be read in conjunction with the U.S. proposal for an intermediate “trusteeship” zone beyond the 200-metre isobath: see post, p. 60.

18 Joint Report, etc., cited note 4 above, at pp. 56–57.

19 A/AC.138/26, 5 August 1970.

20 Borgese, Elisabeth Mann, The Ocean Regime: a suggested statute for the peaceful uses of the High Seas and the Seabed beyond the limits of National Jurisdiction (1968), published by the Center for the Study of Democratic InstitutionsGoogle Scholar; and see also her “Reflections on Pacem in Maribus” in Proceedings: Pacem in Maribus Convocation, Malta, June-July 1970, p. 115.

21 U.S. Draft Convention, Article 73. It should also be noted that, in an attempt to minimise this problem, the General Assembly in December 1969 called for a moratorium on all exploitation beyond the limits of national jurisdiction. This is perhaps unrealistic. A more practical idea in a recent, as yet unpublished, article by John Laglin suggests that States pass parallel legislation forbidding all persons subject to their jurisdiction from exploiting the deep sea-bed except under licence and requiring such persons to respect licences granted by other States. These interim licences would all contain agreed conditions.

22 Loc. cit., p. 57.

23 See Article 34 of the Vienna Convention on Treaties: “A treaty does not create either obligations or rights for a third State without its consent.”

24 The full text of the relevant paragraphs reads:

“1. The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of the area, are the common heritage of mankind.

2. The area shall not be subject to appropriation by any means by States or persons, natural or juridical, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof.

3. No State or person, natural or juridical, shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the international régime to be established and the principles of this Declaration.

4. All activities regarding the exploration and exploitation of the resources of the area and other related activities shall be governed by the international régime to be established.”

25 These two possible roles were explored in the U.N. Secretariat Study on International Machinery, 26 May 1970Google Scholar (A/AC.138/23). And see an earlier Report by the Secretary-General in A/7622, Annex II.

26 A/8021, Annex V, Appendices A, B and C.

27 See Interim Report of the Economic and Technical Sub-Committee of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, A/AC.138/SC.2/L.6, 24 March 1970, pp. 2–7; also in A/8021, Annex II.

28 The British Branch Committee of the I.L.A. (supra, note 13) suggests a distinction between three categories: (i) oil and gas, sulphur, saline minerals, (ii) manganese nodules and similar superficial deposits and (iii) other minerals requiring mining.

29 A/AC.138/SC.2/L.6, para. 8.

30 See the emphasis on this in para. 7 of the Declaration of Principles adopted by the General Assembly on 17 December 1970.

31 Loc. cit., Appendix B.

32 See Deb., H.L., 25 November 1970,Google Scholar The Lord Bishop of Norwich (Col. 139) and Lord Ritchie-Calder (Col. 186).

33 Ibid., Earl Jellicoe (Col. 173). The emphasis on States as the proper applicants for licences is very plain in the U.K. Working Paper, para. 3 and also in the Soviet proposals (A/AC.138/SC.2/L.6), paras. 1, 5, 6. There would doubtless be Soviet opposition to the idea of licensing companies direct and Soviet participation in any new ocean-bed régime is essential. However, it may be that the Soviet Union would accept such an idea if State agencies could be treated as applicants on the same footing as private companies.

34 And note the Secretariat's proposal for a part of the profits from production royalties to be allocated to a reserve fund to combat or compensate for damage to the environment: A/802, Annex IV, para. 12.

35 Article 14. Appendix A suggests $500 to $1,500 for exploration licences and $5,000 to $15,000 for exploitation licences, plus an annual rental fee. The U.K. Working Paper, para. 5 (b) adopts the same approach.

36 Appendix D. It may be thought preferable to make payment direct to the U.N. Development Programme which has an existing machinery for allocating funds for development, rather than attempting to agree on percentages for each individual organisation. For this, and other ideas on equitable sharing, see the U.N. Secretariat Study in A/8021, Annex IV.

37 Article 26.

38 Annex A, Article 10.

39 See Proceedings of the Pacem in Maribus Convocation, Malta, June/July 1970, pp. 103–112, summarising the exposé of the U.S. proposals by Professor Sohn, Louis and the criticisms offered to these proposals.Google Scholar

40 Evensen, “The Military Uses of the Deep Ocean Floor and its subsoil—present and future” in Proceedings of the Symposium on the International Regime of the Sea-Bed, Rome, June-July 1969, at p. 535. It may be recalled that the 1963 Test Ban Treaty already bans nuclear tests under territorial waters or the high seas.

41 ENDC/240, 18 March 1969 (Soviet Draft) and for the U.S. draft dated 22 May 1969 see convenient text in 8 International Legal Materials (1969), 667.Google Scholar

42 10 International Legal Materials (1971).Google Scholar

43 Article 1 refers to the undertaking “not to implant or emplace on the seabed and the ocean floor and in the subsoil thereof beyond the outer-limit of a seabed zone [12 miles] any nuclear weapons or any other types of weapons of mass destruction as well as structures, launching installations or any other facilities specifically designed for storing, testing or using such weapons.”

44 This paragraph resembles closely Article 24 of the U.S. Draft Convention. It is also reminiscent of the provision on “scientific research carried out with the intention of open publication” in Article 5 of the Continental Shelf Convention: such activity is protected against “unjustifiable interference” by the coastal State.

45 The latter is the approach suggested in the Report of the British Branch Committee on Deep Sea Mining (supra, note 13), para. 21 and in the U.S. Draft, Appendix A, s. 1 (4) which envisages licences only for deep drilling, but without fee.

46 See especially the High Seas Convention, Arts. 24 and 25 (pollution by oil and radioactive waste) and the Continental Shelf Convention, Art. 5 (7).

47 Declaration of Principles, para. 11.

48 Articles 9, 22, 23.

49 It may prove extremely difficult to “cap” a deep sea blow-out when the drill hole is at great depths.

50 U.S. Draft, Art. 11 (4).

51 Ibid., Article 40 (K), which contemplates a “fund to provide emergency relief and assistance in the event of a disaster to the marine environment resulting from exploration or exploitation activities.”

52 For discussion of the various possibilities see Sohn, “Possible Future Régimes of the Sea-Bed Resources; International Regulatory Agency” in Rome Symposium (supra, note 40) 387; also Cheever, “The role of international organisation in Ocean Development,” 22 International Organisation (1968), 629 at pp. 646–648; Brooks, “International Organisation for Hydrospace” in The Law of the Sea: international rules and organisation for the sea, Proceedings of the Third Annual Conference of the Law of the Sea Institute, 24–27 June 1968, 371; and the U.N. Secretariat Study on International Machinery, A/8021, Annex III (originally issued as Document A/AC.138/23).

53 U.N. Conference on Trade and Development.

54 U.N. Industrial Development Organisation.

55 Supra, note 20.

56 A similar plea for this approach can be seen in Ambassador Pardo's (Malta) article “Some general considerations on the need for and the requirements of an international régime for the sea-bed and the ocean floor” in the Rome Symposium (supra, note 40), 363 at pp. 383–386.