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Legal Status of the Sea-bed and the Ocean Floor
An International Problem

by S. P. Dwivedi, *
M.A., LL.M. (Luck.)

Cite as : (1971) 1 SCC (Jour) 21

Introduction.—The problem of the legal regime of the sea-bed and ocean floor looms on the distant horizon and it is not governed by any clear, compelling law. Unlike an earlier day, all of today's many nations see an opportunity to influence the future law, but none of them yet see where their interests actually lie and what kind of legal regime will further them.1 The controversy with regard to the surface of the bed of the deep sea, whether it is res nullius or can it be effectively appropriated by a State or States is unresolved. The possibilities of reaching and using the mineral resources of the ocean have started to open up at an unprecedented rate. The technological frontier pushed forward by the explosion of interests in the ocean sciences during the last few years is now advancing into deep sea beyond the limits of the geographical shelves and the pace may be expected to accelerate in the coming decade.2 The depth of the water is now no more an important obstacle in the way of exploitation of the mineral resources because the means for such exploitation are already at hand and well within the sight.

In view of technological developments, it has become obviously clear that the uses of Ocean Space3 undreamt of in the past are now in the process of making and all the patterns that will eventually emerge, cannot now be foreseen.4

The development of deep sea mineral resources, which is one of the significant aspects of the revolution in the ocean technology under way, has produced tension in the minds of international lawyers and Jurists with regard to legal issues as to how far the exclusive rights of the coastal State extend and should extend? What legal regime should govern the exploitation beyond the limits of National jurisdiction? What is Continental Shelf? And what should be the test of exploitability? Connected with this, there are many other issues which will also draw our attention. Only little more than a decade ago all these problems seemed too remote to have troubled either the International Law Commission or the Geneva Conference on the law of the sea.

Past practice.—Formerly, interest in the resources of the sea-bed and sub-soil was for practical purposes limited to a few instances of submarine coal mines worked by shafts driven outward from the land through the sub-soil of the sea-bed and sponge, oyster and shell fisheries harvested by driving to the sea-bed and commonly referred to as 'sedentary fisheries'.5 Within the territorial waters there was no legal problem because the rights of the coastal State were recognised to embrace the sea-bed and sub-soil as well as waters of the territorial sea.6 In an English case, it was observed by Parker, J., that the bed of the sea, at any rate for some distance below low-water mark, and the beds of the navigable rivers, are prima facie vested in the Crown, and there seems no good reason why the ownership thereof by the Crown should not, subject to the rights of the public, be a beneficial ownership.7 Lord Watson in Lord Advocate v. Wemyss case8 held:

"I see no reason to doubt that by the law of Scotland the solum underlying the waters of the ocean, whether within the narrow seas or from the coast outward to the three-mile limit and also the minerals beneath are vested in the Crown."

In his authoritative work Sir Cecil Hurst has also observed9:

"So far as Great Britain at any rate is concerned the ownership of the bed of the sea within the three-mile limit is the survival of more extensive claims to the ownership and sovereignty over the bed of the sea. The claims have become restricted by the silent abandonment of the more extended claims. Consequently, where effective occupation has been long maintained of portions of the bed of the sea outside the three-mile limit, these claims are valid and subsisting claims entitled to recognition by other States."

He further observed:

"The claim to exclusive ownership of a portion of the bed of the sea and to the wealth which it produces in the form of pearl, oyster, chanks, coral, sponges or other fructus of the soil is not inconsistent with the universal right of navigation in the open sea or with the common right of the public to fish in the high seas."

From the above discussion it is, therefore, manifestly clear that the maintenance of States' property rights in special areas outside three-mile limit, when more extensive general claims to sovereignty, jurisdiction and property were abandoned, are in no way inconsistent with the principles laid down by Oppenheim,10 that the sub-soil beneath the bed of the open sea beyond the marginal belt of territorial waters is no man's land, property in which can be acquired on the part of the littoral State through occupation starting from the sub-soil beneath the bed of territorial maritime belt. Tunnelling in the sub-soil for purposes of mining or communications seems to be the only aspect of the problem which Oppenheim had in mind, but the principles laid down by him are in no manner inconsistent with the recognition of a right of exclusive ownership arising from long and undisputed occupation of sedentary fisheries lying on the surface of the bed of the sea.11

Present practice.—The old theory that the high sea is the property of no State, therefore, the bed and the sub-soil beneath the bed of the open sea, cannot come under the sway of any State, has now been discarded. The practice of States in recent times has shown that the sub-soil beneath the bed of the high seas can be occupied by the coastal State to exploit its resources, to construct mines and tunnels and the like.

Truman's declaration of September 28, 1945.—The legal situation in regard to the resources of the sea-bed and the sub-soil under the high seas has undergone a radical change since the Second World War, through the rapid development of State claims12 to the resources of the 'Continental Shelf' set in motion by President Truman's proclamation of September 28, 1945.13 In that proclamation it seemed enough to give the coastal States sovereign rights in relation to the resources of the sea-bed in approximately the area contemplated by President Truman—the area adjacent to the coast out to two-hundred metres isobath. The Government of the United States through the proclamation declared:14

"Having concern for the urgency of conserving and prudently utilising its mineral resources, the Government of the United States regards the natural resources of the sub-soil and sea-bed of the Continental Shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the Continental Shelf extends to the shores of another State or is shared with an adjacent, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The charter as high seas of the waters above the Continental Shelf and the right to their free and unimpeded navigation are in no way thus affected."

Although, such unilateral declaration cannot in itself create any new rights or any rules of International Law, yet it may be regarded as providing the seed from which such rights and rules may grow.15 It may, therefore, be submitted that general recognition and acceptance by States may perfect the rights claimed by the United States and establish new rules of International Law based on the doctrine of Continental Shelf. There is, therefore, no grave objection as to unilateral declaration which claims a res nullius but respects the international rights of other States. But from a purely juristic point of view, there is serious objection to such a declaration which purports to ignore the rights with regard to the open sea which are enjoyed by all States in common.16

The Geneva Convention of 1958, on the Continental Shelf.—Since the Truman's Proclamation, the subject of nation's rights to animal and mineral resources of the sea-bed contiguous to its shores has been vigorously discussed and debated. Many nations have made similar claims to that of the United States.17 But the Convention on the Continental Shelf, adopted at the Geneva Conference in 1958, represents the first world-wide accord on the subject. The Convention is, of course, not law, and according to its terms will not be binding even on the parties, but it is in any case significant as an agreed statement of principles.18 It has materially altered the law of high seas. This Convention expressly grants to the coastal State sovereign rights over its Continental Shelf for the purpose of exploring and exploiting its mineral resources.19 Although several interpretations are given to the Convention on the Continental Shelf, yet nobody has ever dared to say that the sea-bed belongs to the coastal States for all purposes.

The Convention on the Continental Shelf, thus, represents the culmination of a trend20 which began in 1945 to 1949 when by unilateral declaration a number of States asserted claim to exclusive jurisdiction or control over the resources of the Continental Shelf and associated off-shore areas. In general, the Convention reflects a moderate approach.21

Extravagant claims, of the kind which in recent years have threatened to reduce the Shelf-doctrine to absurdity, will gain from it little support. It notably rejects the view that the doctrine justifies claims to vast off-shore areas regardless of depth or exploitability or that it entitles a coastal State to exercise unlimited jurisdiction over the waters above the shelf. On the contrary, it is also well-settled that the Shelf-doctrine does not affect the established legal order of the high seas.22

Despite these and many other inherent substantial values it is obvious, that the Convention has not been regarded as a wholly satisfactory instrument. There are may problems which have not yet been solved. The Convention, thus, leaves many serious uncertainties unresolved.23

The concept of the Continental Shelf adopted by the Convention is purely notional. The geological concept of the shelf has already been given up in favour of criteria of depth and exploitability, irrespective of whether there is or is not a marine shelf geologically appurtenant to a coastal State.24 It is, thus, obvious that the legal doctrine of the Continental Shelf goes clearly beyond the geological concept, for Article 1 defines it as covering not only submarine areas adjacent to the coast up to a depth of two hundred metres but also beyond that limit to where the depth admits of the exploitation of the natural resources. Though this definition is a compromise designed to meet the susceptibilities of States yet it leaves the definition with an open-end which scarcely puts any bound to the exclusive claims which coastal States may assert over the sea-bed and it might have been better if some maximum limit had been attached to this part of the definition.25

No rule which leaves off-shore limits of jurisdiction so hazy can be regarded as adequately stated. The manner in which the shelf-doctrine in some cases has already been distorted so as to abridge the freedom of the high seas26 should be a warning.27

Delimitation of the Continental Shelf

A new legal regime for deep-sea resources outside national jurisdiction obviously requires a more precise definition of the outer-limits of areas of national jurisdiction. It is with mineral resources that a new legal regime will presumably be chiefly concerned.

Assuming that there is in general law—leaving aside the consideration of the Convention—a sea-ward limit to national jurisdiction over the sea-bed and sub-soil, it is sensible, if one wishes to find out where this limit is, to ask first what is the underlying principle in which national jurisdiction over an area of the sea-bed and sub-soil finds its justification.

In considering the question whether the resources are already to the regime of the Continental Shelf, the matter has already been settled in favour of the coastal State. The concept of an area of national jurisdiction over the sea-bed and sub-soil, in fact, rests on President Truman's historic proclamation of September 28, 1945 which, according to International Court of Justice, has a special status as "the starting point of positive law on the subject" in its enunciation of the principle that a coastal State has original, natural and exclusive right to the Continental Shelf off its shores.28

Meanwhile, the Court coming to the question of limits of the Continental Shelf observed that the quality of appurtenance or prolongation can only be identified by reference to physical fact, making geo-morphological or perhaps geological considerations paramount. The Court in its deliberate opinion said that the Continental Shelf constitutes a natural prolongation of its land territory into and under the sea-bed. The observation of the Court runs as follows:29

"The institution of the Continental Shelf has arisen out of the recognition of a physical fact, and the link between this fact and the law, without which that institution would never have existed, remains an important element for the application of its legal regime. The Continental Shelf is by definition, an area physically extending the territory of most coastal States into a species of platform which has attracted the attention first of geographers and hydrographers and then of Jurists."

Two hundred metre test

There must be a presumption that two hundred metre test is in itself meaningful and that the addition of exploitability clause did not render it merely superfluous. If it is so, it seems that the two hundred metre clause can only retain its legal vigour if it means, that coastal States' jurisdiction extends in any event as far as the two hundred metre contour; in other words, that the submerged areas up to that contour are per se adjacent to the coast. This interpretation would certainly be in consonance with the early adoption of the contour test as a solution in part and ad interim; for it encloses an area which must be within national jurisdiction without doubt.30

Recently, the President's Commission on Marine Science and Engineering Resources has, in its report, proposed a narrow shelf, ending at 200-meter isobath. It has also proposed an 'Intermediate Zone' in which coastal State would have the exclusive right to exploit resources, subject to the regime that is to govern all the sea-bed beyond national jurisdiction. The intermediate zone is an interesting compromise.31 Although, the intermediate zone proposed by the President's Commission brings into force certain advantages, yet it enshrines certain dangers for the freedom of seas.32

Although, the Geneva Convention of 1958 added some new concepts of International Law, as that of Continental Shelf and contiguous zone, yet the fundamental problem namely, the extension of the territorial sea had not been solved. There seems a relative absence of international agreement33 with respect to the use of the ocean-bed since the Conventions on the law of the seas did not cover the sea-bed beyond certain limits. It is, thus, obvious that at the present stage of International Law, the outer limits of Continental Shelf are quite unclear.

Exploitability test

It has been often stated that the technology of exploitation would alone determine the outer limits of the Continental Shelf. But there are possible interpretations that, if technological capabilities are allowed more frequently, all the sea-bed and the ocean floor might become some day as the Continental Shelf of coastal States.

In interpreting the flexible exploitability test of the Continental Shelf Convention with regard to outward boundary of the shelf, Soviet Jurists argue that the outward boundary of a coastal State should not depend upon the technological capabilities of that State, but rather upon the capabilities of all States. In other words, the most technologically advanced country simultaneously expands the outer limits of the Continental Shelf for all States as it develops its own shelf at ever-greater depths. To do otherwise, would enable highly advanced nations to explore the sea-bed and sub-soil of coasts of other countries at a depth exceeding their own Continental Shelf. This would certainly contravene the spirit of the Convention on the Continental Shelf, which leaves to each State the right of exploitation of areas of its sea-bed and sub-soil.34

From the fact that the exploitability test serves to extend the particular treaty regime to areas beyond the two-hundred metre contour, provides no reasonably practical and clear-cut outer-limit.

According to Judge Sorensen:35

"The test of exploitability for determining the outer-limits of the Continental Shelf should not be taken to imply that the legal status of the sea-bed and sub-soil of the ocean depths could be governed by the Convention. The legal concept of the Continental Shelf cannot be reasonably understood, even in its widest connotation as extending far beyond the geological concept."

It may well be, therefore, that the exploitability, clause could now for all practical purposes be regarded as 'functus officio' and the extent of Continental Shelf jurisdiction governed by the Convention be regarded as approximately to that sanctioned by the general law. This would, certainly, seem to be a practical as well as a logical solution of the problem.36

Since the Continental Shelf doctrine does not apply beyond a certain limit, the present status of the deep-sea floor must be determined by having recourse to the other principles of customary law.37 A legal regime for deep-sea bottom resources must also be based on a solid knowledge of geographical facts, of technological capabilities present and anticipated and of political and other economic realities.

General Assembly Resolutions of 1966 and 1967

As a result of numerous controversies regarding the outer-limits of the Continental Shelf significant resolutions were adopted in the United Nations at both the 1966 and 1967 sessions of the General Assembly.

The Resolution of 1966

The Resolution of 1966 requested the Secretary-General to survey the existing state of knowledge in regard to marine resources beyond the Continental Shelf, excluding fish, to review with the help of a group of experts, current activities in marine science and technology and formulate proposals for expanded international co-operation in understanding marine environment and finally, to make a report to the Assembly at its 1968 session.38

Maltese Proposal—Resolution of 1967

The 22nd Session of the United Nations General Assembly, indeed, seems to have a place of pride in the history of the United Nations when an action of August, 1967, originated in a proposal put forward by Malta for a "Declaration and treaty concerning the reservation exclusively for peaceful purposes of the sea-bed and of the ocean floor, underlying the seas beyond the limits of present national jurisdiction, and the uses of their resources in the interest of mankind."39

The accompanying memorandum expressed a great fear that the fast going technological progress in marine science would soon expose the ocean floor to competitive national appropriation and use, with the risk of militarization of the sea-bed and ocean floor, beyond present national jurisdiction, resulting in the exploitation and depletion of the resources of immense potential benefit to the world, for the national advantages of a few technologically developed countries. To bar such a course of events, the Maltese Government, therefore, urged that the sea-bed and the ocean floor should be declared 'a common heritage of mankind' and a treaty drafted under the terms of which the sea-bed and ocean floor would not be subject to national appropriation in any manner and shall be reserved exclusively for peaceful purposes and its exploration would be carried on in the manner consistent with the principles and purposes of the Charter and would be used and exploited to safeguard the interests of mankind, that the financial benefits derived from such activities would be used primarily to promote the development of the poor countries.40

The Maltese proposal also expressed hope for some type of internationalization of the sea-bed and ocean floor because the interests of all countries could far better be safeguarded by developing within an international framework of credible assurances that the sea-bed and ocean floor would be used exclusively for peaceful purposes as had already been done with respect to outer-space.41

It was further stated that increasing concern has been expressed in unofficial quarters over the apparent lack of awareness in the international community of the implications of recent developments in technology in the context of the 1958 Convention on the Continental Shelf. Increasingly, numerous voices had been raised stressing the urgency that clear legal provision be made for an international regime, administered by an efficient international authority over the sea-bed and ocean floor beyond a variously defined Continental Shelf.42

While justifying his reasons to the General Assembly's Committee for the proposed plan, Dr. Paido of Malta, explained that he sought a "political decision of principle" on what he regarded as the "lamentable" international gap in the field.43 In the opinion of Arthur, J., Goldberg, Maltese proposal is as important as the exploration of outer-space.44

The Maltese proposal was the subject of extensive debate in the Assembly's First Committee. In due course of time, a resolution was framed and subsequently adopted unanimously by the Assembly on December 18, 1967.45 This also made a provision for the creation of an ad hoc committee of 35 members. In deciding to establish the ad hoc committee on the peaceful uses of the sea-bed, the Assembly noted and recognised the common interest of mankind in the sea-bed and ocean floor, which it stated, constituted the major portion of the area of this planet.46

Despite some bold initiatives, the debates in the United Nations General Assembly have been disheartening and non-committal on the substantive legal issues. However, there is now a permanent committee consisting of 42 members, on "the peaceful uses of the sea-bed and the ocean floor beyond the limits of National Jurisdiction."47

By creating the Permanent Committee, the Assembly was to request a study by the Secretary-General on the dangers of marine pollution, the establishment of international machinery to exploit the resources of the area and welcome an International Decade of oceanographic exploration.48 The Indian representative, too, clearly stated that a report from the Secretary-General was sine quo non for any further progress. All future work had to be done on the clear understanding that it had to be carried out in the context of International Co-operation.49

Internationalization of the sea-bed : Other plans

Although, Maltese proposal has received widest publicity, yet it is not the first endeavour towards this objective or an attempt to internationalize the sea-bed and the ocean floor. There have been many attempts on this issue50 and one of the latest and most thoughtful plans consists of a proposed "Treaty on Principles Governing the Activities of States in the Exploration of Ocean-space", submitted by Senator Pell to the U. S. Senate on March 5, 1968.51 This treaty was designed to prevent a "threat of anarchy", in the region. It follows the general lines of the "Treaty on Principles Governing the use of Outer-Space including Moon and other Celestial Bodies and the Antarctic Treaty". Basically, the draft treaty prohibits the extension of national sovereignty into ocean space. Exploration and exploitation of the resources of the sea-bed and the sub-soil of the submarine areas of ocean-space may be carried on under licences issued by a licencing authority. The draft treaty also provides appropriate procedure for the settlement of disputes between the licensees.

Private organizations have also advanced adequate measures towards internationalization of the sea-bed and the ocean floor. Among the first of these is the Organization of Peace. Somewhat similar but less stringent measures were favoured in 1967 at the Geneva World Conference on World Peace through Law. At that meeting it was recommended that the non-fishery resources of the high seas outside the territorial waters of any State and the sea-bed beyond the Continental Shelf should belong to the Organization along with its control and jurisdiction.52 Some kind of International Organization is better than no International Organization. It can better perform the roles to be undertaken by the National Governments.

The extent to which the actions of national governments can be restrained by International Law or International Organization must depend upon the imperatives of national interests, such as, international security, urgency of increased food, restraints upon Governments in advancing their claims to the shelf, the continental slopes and the depths beyond, need to control the world's environment for the benefit of the mankind and finally, the improving of communications and transportation systems by greater utilization of ocean depths.

One of the most significant approaches which has recently been favoured seems to lie in some kind of International Registry Office or Offices,53 in which national claims to specific ocean floor areas would be recorded in order to acquire validity as against other States. Such claims would not necessarily be claims of sovereignty. They might be claims with regard to exclusive right of exploring and exploiting a particular resource or deposit and perhaps only, for a particular time.54 It has been suggested that treaty establishing the registration system might also deal with such matters as criteria governing the size, duration, location of claims and the manner in which claims should be resolved. The competing claims might be refused registration until settled by negotiation or by decision of the Registry Office or some other impartial body.55 This system, if adopted, would undoubtedly have some advantages with regard to occupation theory, of standardizing the treatment of ocean floor claims and reducing to a minimum the points of conflicts. It could also serve as a device for recognising the interest of the international community in deep-sea resources.

The proposal put forward by Malta—though fills lacunae in the field of International law and that not even a single member expressly declared that the ocean resources should not be used for the benefit of the mankind, yet it is not free from comments and criticisms and perhaps, the Chief Delegate of Malta, Dr. Pardo, himself foresaw the opposition of his presentation. Mr. C.S. Jha of India once observed,56 "Charter or no charter, council or no council" India would eliminate all vestiges of colonialism and narrow minded legalistic considerations, would not bar such a course of action. Still in presenting the argument that freedom of the seas was endangered, the Maltese representative advanced an argument to the effect that the exercise of sovereignty over land also extended to the superjacent atmosphere, that the sea is the atmosphere of the ocean floor, that the State which exercises sovereignty over that part of the ocean floor has a claim of jurisdiction over the superjacent waters despite the wording of Article 3 of the Geneva Convention. If the Geneva Convention deals with the Continental Shelf, the Maltese proposal is designed to cover area beyond the Continental Shelf. In other words, the argument put by Dr. Pardo can only strengthen the view that his plan is superfluous, that the Continental Shelf Convention has disposed of the issue, that the Shelf reaches midway the Ocean.57

Similarly, a number of delegations thought the establishment of international regime, as advocated by Malta, premature. The Soviet representative pointed out that in attempting to solve such a complex issue, it was risky to start by creating a new body. If this were adopted, there would be duplication and parallelism in the study of the issue and consequently organization chaos and useless expenditure of funds of the United Nations.58

The view outlined by the Soviet Union was considerably supported by the representatives of Bolivia, Bulgaria, Iceland, India, Iran, Poland and Yugoslavia.

The Maltese proposal, though has its advantages particularly, with regard to defining scope of the question precisely, but any comparison with outer-space would be fallacious. The problems are closely associated with the law of the seas. Nonetheless, it should be noted that much of the organizational frame-work for internationalization of the sea-bed and the ocean floor can be drawn by the analogy from the presentation by Judge Philip, C. Jeesup and Prof. Taubenfeld in controls for outer-space. The author's comments on outer-space are most appropriate to the ocean-space. He says: 59

"Major international problems that linger do not always disappear. They often grow less-soluble as positions become inflexible and entrenched vested interests grow and national pride is involved, even where 'security' is only a fig-leaf for rapacity."

There are many other warnings for Mr. Pardo's proposals. It has been suggested that it would be extremely difficult to agree on the allocation of net financial benefits derived from the use and exploration of the sea-bed to promote the development of the poor countries. Besides some regional arrangements there is lesser possibility of the world-wide political co-operation that would be required to create and control an international agency to assume jurisdiction as a trustee over as large and important area as the sea-bed. The United Nations and its agencies are as much cockpits as they are instruments of co-operation.60

Although, the General Assembly, the Economic and Social Council, the International Law Commission, the Food and Agriculture Organization and UNESCO's I. O. C. have all played their valuable roles in fostering agreement on ground rules for ocean management, yet these have only minor significance. Considerably, there is no certainty that international agencies would do the job more equitably or more efficiently than the national agencies functioning under international rules. Daniel S. Cheever has observed:61

"International Organization is presently too weak as a Governmental or administrative machinery to manage the sea directly. Despite the fact that ocean space beyond national jurisdiction is uninhabited and unclaimed, it is hard to conceive how international organization can be stronger in the water that it has been on the land. Even if this point is conceded, premature control of more than half the globe by an international body, exercising ownership and holding title, is likely to create controversy as it is to avoid it. It is likely to be economically inefficient as efficient. International ownership might also dampen incentives for ocean research and discovery. There is no short run prospect of establishing the world political authority necessary for the political decisions that would in anything like equal terms benefit rich and poor nations or coastal and non-coastal nations."

If an international organisation has to achieve success and to manage the sea directly, the important task which it has to accomplish, is to develop ground rules for exploitation and to improve national capacities through international harmonisation to the point of global co-ordination.

To be sure, modern technological developments have caused much fears with regard to the exploitation of the sea-bed and the ocean floor, which might deplete the resources of the immense potential benefit to the mankind, have now prompted efforts to devise international regime. In the absence of general control by an International Organisation, any such regime must depend upon the individual and collective action by States to supervise conservation measures.

Role of International Law

In the light of above mentioned discussion, it is noted with high regard that International Law may be of great assistance in devising procedures and contriving new means and methods for the solution of the difficulties arising out of any conflict between the rules safeguarding freedom of the high seas and actual operation of new developments. Such assistance, may also, be required for the settlement of problems closely inter-woven with the delimitation of submarine areas either in general or between competing States and may also provide an incentive to adjudicating agencies with a body of law in the shape of general rules. At the same time, it may also steer in this matter a middle course between the initiatives and restraints. Prof. Lauterpacht has very aptly said :62

"General International Conferences may not always constitute the best machinery on some questions such as the exact delimitation of submarine areas outward to the sea, it may be preferable to await the actual proof of necessity of concrete solutions. Such necessity may never arise. Facts of geography may conclusively reveal lack of urgency in the imaginative zeal of lawyers. In other matters, such as affirmation of the principle that artificial structure created on the high seas for the purpose of exploiting submarine areas cannot be permitted to encroach on the freedom of high seas by any claim to territorial waters of their own. Clear-cut international regulation may be called for at the very outset."

At one place, Leon Uris has said that International Law is that thing which the evil ignore and the righteous refuse to enforce.63 This is surely one of the most devastating comments regarding international legal system.

It is perhaps true, once the nation States come to realize that in the final analysis, it is in their interest "to avoid a race to grab and hold the lands under the high seas", as President Johnson of America has phrased it realistic legal principles of benefit to all.64 Only in this fashion it can be made obvious that International Law is not a thing which the evil ignore and the righteous refuse to enforce.

Finally, it may be submitted and it is certainly true that International Law plays a prominent role in solving the practical problems involving the interests of the nations. Actually, what lacks in it is adequate faith and determination. If it wishes to maintain a lively sense and spirit, it must always keep pace with the changing needs of time, place and circumstances. Those who are deeply interested in, as to how International Law is made in our day and those who think about what it ought to be, would do well to point out what has been happening in regard to the law governing the exploitation of the mineral resources of the sea-bed.

Conclusions and suggestions

The former practice that the high sea is the property of no State, therefore, the bed of the sea cannot be appropriated by any State, has now been absolutely given up. The relevant past practices have also been limited by an apparent improbability of putting control over bottom areas.

The practice of States over recent years with regard to the appropriation of the Continental Shelf has, obviously, shown that the sub-soil beneath the bed of the high seas can be occupied by a coastal State to exploit its mineral resources, to construct mines and tunnels and the like. The legal situation in respect of the resources of the sea-bed and the sub-soil under the high seas has thus, tremendously undergone a radical change since the World War II, through the rapid progress of State claims to the resources of the Continental Shelf.

As mineral resources become more and more exhausted and as scientific inventions and engineering skill advance, it is expected that mankind will pay considerable attention to the exploitation of the surface and the sub-soil beneath the bed of the open sea. Accordingly, it is no longer novel to consider that the sea-bed and the ocean floor beyond the limits of national jurisdiction belong to all mankind and are indeed its joint legacy. These areas have, so far, not been seriously occupied or claimed by any nation, because hostile environment has kept man practically out of the bounds. But with the advancements in the field of technology and marine science, they are now becoming increasingly accessible. We, therefore, have a claim to them and a stake in them. There is no other way to treat this area except to consider it as a "common heritage of mankind."

It would be ironic enough if the highly developed communities of the world have been left with unlimited freedom to exploit the riches of this environment. This would undoubtedly lead the economically backward nations to discard the path of the reasoned accommodation as unsuccessful and take to more aggressive measures. It is, therefore, of the utmost importance to take into consideration the interest, needs and aspirations of the developing countries. The benefits obtained from this area must help to avoid inequalities between the developed and the developing countries.

If man has a stake in the area, if the developing countries could benefit from its wealth, then, surely no exploitation of the area should take place which is not within the context of the new principles and norms to be developed and which does not fall within the ambit of a regime that would ensure an equitable management of the resources of the sea-bed and effective participation of the developing nations in it.

International Law applicable to the area is at best rudimentary and that there are no rules yet which govern exploration and exploitation of the sea-bed. No exploitation should take place until an international regime is established. It is, therefore, essential to develop a regime which would regulate all activities in the sea-bed including the management of this area. For the achievement of these and other objectives, it is necessary to set-up an international machinery. Such a machinery, if created, would regulate activities on the sea-bed and, in particular, control the development of its resources.

Once the sea-bed and the ocean floor have been placed under the jurisdiction of an international machinery, it, then, becomes a matter of outstanding significance that international machinery must have both regulatory and operational functions. Its regulatory functions could include organising, controlling, administering and co-ordinating all activities relating to the sea-bed. It could grant licences for lawful activities in accordance with the rules and legal norms to be formulated. It may also adopt suitable measures to prevent and check pollution and other hazards of the marine environment.

In fact we do not like any regime which would not protect the national interests while conducting activities in the sea-bed. The coastal States close to the area, in which activities take place should be consulted and must be given assurance that their interests in the sea-bed are not jeopardised. We should also look carefully that the damages caused by activities in the sea-bed entailed liability, because to decide otherwise would not adequately encourage wilful or even accidental damage.

As it is obvious, that technological progress has produced much fear, with regard to the exploitation of the sea-bed and the ocean floor, has now prompted efforts to devise international regime. In the absence of general control by an International Organisation, any such regime should rest upon the individual and collective actions. But before such steps are taken, the following proposals should be recalled in action. These are :

1. The world nations should agree to modify the elastic clause of the Continental Shelf Convention so as to extend their renunciation of exclusive sovereign rights over the high seas and the ocean depths to the sea bottom and its resources.

2. Governments should agree to the Maltese proposal that the resources of the sea-bed beyond the limits of national jurisdictions are to be used as a "Common good" in the interest of mankind. Because the "Common good" principle has already been accepted in the International Law of the Sea, mineral resources as opposed to the title, might be granted to private firms or national agencies as the case may be, either by national or international authorities, depending upon the arrangements specified in the treaties regulating the exploitation of the resources of the sea-bed.

3. The ocean floor beyond the agreed limits of national jurisdiction should be reserved exclusively for peaceful purposes.

4. New international agency should be created to deal with the ocean as a whole. It would be useful in harmonising or, if it succeeded in eliciting confidence, co-ordinating national ocean programmes in the fashion of I. O. C.

In the final analysis of the present topic, it may be submitted that general International Conferences, though important, may not always be the best machinery to solve the difficult questions where national interests are involved. Clear-cut international regulation may be of the utmost significance. For the best, it may help to avoid a race to grab and hold the lands under the high seas.

      Note:—Very recently, the Legal Sub-Committee of the U. N. Committee for "Peaceful Purposes of the Sea-bed" has reached a tentative agreement on certain clauses to be included in a declaration of principles governing future International sea-bed area. Among the principles approved are that all activities regarding the exploration of resources of the International area should be governed by an International Body. The declaration would also stipulate that the International area should not be subject to appropriation by States or persons and no State should claim or exercise sovereignty or sovereign rights over any part of it. The relations and activities of the States would be carried out in accordance with the principles and rules of International Law including that of the U. N. Charter. Further, the exploration of the area and the exploitation of its resources would be carried out for the benefit of the mankind as a whole, irrespective of the geographic location of States, whether land-locked or coastal, taking into consideration the needs and interests of developing countries.

      The area would be open to scientific research exclusively for peaceful purposes and States would be obliged to take measures to prevent pollution and conserve natural resources. Sea-bed Treaty, Agreement on few clauses. The Economic times, Thursday, August 27, 1970, p. 4, Cols. 7 and 8.

* Head of the Department, Faculty of Law, S. D. Post Graduate College, Sri Ganganagar, (Raj.) Return to Text

  1. Editorial comment: International Law and the Interests: The Law of the Sea-bed; A J I L (July, 1969), p. 504. Return to Text
  2. Christy: Realities of Ocean Resources. Paper presented at the Marine Frontiers Conference, University of Rhode Island, July 27-28, 1967. Return to Text
  3. The term "Ocean Space" has been defined as covering water surface, water column, sea-bed and sub-soil. See Griffin: "The Emerging Law of Ocean Space", International Lawyer (1967), p. 548. Return to Text
  4. Richard Young: Legal Regime of Deep-Sea Floor; A.J.I. L. (July 1968), pp. 641-642. Return to Text
  5. Brierly, J.L.: The Law of Nations, (6th Ed.), p. 212. Return to Text
  6. Ibid. Return to Text
  7. Lord Fitzhardinge v. Purchell, (1908) 2 Ch., p. 139 at p. 166. Return to Text
  8. Lord Advocate v. Wemyss, (1900) AC 48. Also see, 39 Indian Reports, Mad Ser (1916), p. 617. Return to Text
  9. Cecil, J. B Hurst: International Law-The Collected Papers, p. 61. Return to Text
  10. Oppenheim: International Law, Vol. 1, pp. 628-630. Return to Text
  11. Cecil, J. B. Hurst: "Whose is the bed of the Sea", Br Yr Bk 1 L (1923-24), p. 34 at p. 42. Return to Text
  12. Lauterpacht: Sovereignty Over Submarine Areas. See Br Yr Bk 1 L. (1950), p. 376. Return to Text
  13. 40 AJ 1 L (1946), Supp., p. 45. Return to Text
  14. See Br. Yr. Bk. I.L. (1946), p. 333 at p. 334. Return to Text
  15. See F. A. Vallat: Br. Yr. Bk. 1 L. (1946), p. 333 at p. 337. Return to Text
  16. Ibid. at p. 338. Return to Text
  17. See Lauterpacht: Sovereignty Over Submarine Areas, Br. Yr. Bk. 1 L. (1950), p. 376 at pp. 380-382. Return to Text
  18. According to Judge Sorensen the rules embodied in the Geneva Convention on the Continental Shelf have now attained the status of generally accepted rules of International Law. A.J.I.L. (July, 1969), p. 590 at p. 635. Return to Text
  19. The doctrine of Sovereignty over the Continental Shelf is not unreasonable in itself and is in many ways similar in principle to that of sovereignty over territorial waters. The only important distinction is that while effective control from the land can be presumed in the case of territorial waters, this is not essentially in the case of sub-marine areas of the Continental Shelf. See, F.A. Vallat Br. Yr. Bk. 1 L. (1946), p. 333 at p. 337. Return to Text
  20. See Lauterpacht: Sovereignty over Submarine Areas, Br. Yr. Bk. 1 L. (1950), p. 376. Return to Text
  21. Richard Young: Geneva Convention on the Continental Shelf: A First Impression. A.J.I.L. (1958), p. 733. Return to Text
  22. Article 3 of the Geneva Convention reads: "The rights of the coastal State over the Continental Shelf do not affect the legal status of the superjacent waters as high seas or that of the air space above those waters." Return to Text
  23. Richard Young: Geneva Convention on the Continental Shelf : A First Impression. A.J.I.L. (1958), p. 733. Return to Text
  24. According to Prof. Starke the title 'Convention on the Continental Shelf' is a misnomer since the convention applies not only to the Continental Shelf but as well as to considerable areas of non-shelf off-shore waters including submarine areas beyond shelf limits. Starke: An Introduction to International Law, (1963), p. 191. Return to Text
  25. Brierly, J.L.: The Law of Nations, p. 216. Return to Text
  26. As regards the freedom of high seas, J.F. McMahan says, that freedom of seas inevitably invites and prompts comparison with freedom of the outer-space. By analogy to the principle of freedom of the open seas, which beyond the limits of territorial waters and special maritime zones do not belong to anyone and are in general use by all nations. The underlying principles with regard to the status of the high seas is, therefore, that it is re communis omnium. See J. F. McMahan: Legal Aspects of Outer Space, Br. Yr. Bk. 1 L. (1962), p. 339 at p. 358. Return to Text
  27. See Richard Young: The Geneva Convention on the Continental Shelf: A First Impression, A.J.I.L. (1958) p. 733 at p. 735. Return to Text
  28. I.C.J. Reports, (1969), pp. 32-33. (In North Sea case, the Court held that the North Sea Continental Shelf is governed by the principle that each coastal State is entitled to a just and equitable share. Its ground for doing was that the north sea-bed was not like a cake waiting to be divided but was notionally already divided, as soon as the continental shelf principle was recognised. The Court further observed that the rights of coastal State in respect of the area of continental shelf that constitutes a natural pro-longation of its land territory into and under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land and as an extension of it in an exercise of sovereign rights for the purpose of exploring the sea-bed and exploiting its natural resources. In short, there is an inherent right). See also I. C. L. Q. (April, 1969), pp. 489-90. Return to Text
  29. I. C. J. Reports, (1969), p. 51. Return to Text
  30. Herman Phleger; XXXII, Bulletin, Department of State, No. 83, June 6, (1955) pp. 937-939. (After referring to the adoption of the two hundred metre line in the Truman's Proclamation and in the International Law Commission's Draft, he says this limitation "would seem to cover all practicable needs for the foreseeable future and would have the advantage of definitiveness. If future technical advances should render this formulation inadequate it can be reconsidered in the light of intervening experience"). Return to Text
  31. Our Nation and the Sea: A plan for National Action. Report of the Commission on Marine Science Engineering and Resources (January, 1969). Return to Text
  32. See A.J.I.L. (July, 1969) p. 504 at p. 509. Return to Text
  33. Judge Jessup has correctly said of the Convention that "its success depends on a high degree of international co-operation and on whether the ratifying States include those whose interests clash," Jessup: The U. N. Conference on the Law of the Sea, Col. L. Rev., (1959), p. 234 at p. 259. Return to Text
  34. W. E. Butler: The Soviet Union and the Continental Shelf. AJIL (January, 1969), p. 103 at p. 105. Return to Text
  35. AJIL (July, 1969), p. 590 at p. 635, f.n. 8. Also see ICJ Reports, (1969), p. 3; 8. Int. Legal Materials, (1969), p. 340. Return to Text
  36. R. Y, Jennings: The Limits of Contiental Shelf Jurisdiction: Some Implications of the North-sea Judgment, I. C. L. Q., (October, 1969), p. 819 at p. 832. Return to Text
  37. Richard Young: Legal Regime of Deep-sea Floor, A.J.I.L., (July, 1968), p. 641 at p. 645. Return to Text
  38. Gen. Ass. Res. 2172 (XXI), December 8, 1966. Return to Text
  39. U. N. Doc. A/6695, (August 18, 1967). Return to Text
  40. Ibid. at p. 2, para 3. Return to Text
  41. U. N. Monthly Chronicle, (January, 1968), p. 29. Return to Text
  42. U. N. Monthly Chronicle, (Jan., 1968), p. 30. Return to Text
  43. U. N. Doc. A/Bur/S. R. 166, (Sept. 21, 1967), p. 2. Return to Text
  44. Ibid. at p. 3. Return to Text
  45. Gen. Ass. Res. 2340 (XXII), Dec. 18, 1967: also see: 62 A. J. I. L., (1968). Return to Text
  46. U.N. Monthly Chronicle, (April, 1968), p. 51. Return to Text
  47. Ibid, at p. 56. Return to Text
  48. Ibid. Return to Text
  49. Ibid. at p. 31. Return to Text
  50. Guenter Weissberg: International Law meets the short term National Interest-The Maltese proposal on the sea-bed and ocean floor, I. C. L. Q., (Jan., 1969), p. 41 at pp. 88-91. Return to Text
  51. See S. Res. 263, 90th Cong., 2nd Session, (1968); 114 Cong, Rec. S. 2199, (March 5, 1968). Return to Text
  52. Res. XV, Programs for Progress towards peace through Law adopted by the Geneva Conference on World Peace through Law, (1967). Return to Text
  53. For instance, the representative of Monoco seemed to favour a system of international prescription and warmly supported establishment of an International Office of the Sea. Return to Text
  54. Richard Young: Legal Regime of Deep-sea Floor, A. J. I. L., (July, 1968), p. 641 at p. 648. Return to Text
  55. Ibid. at p. 649. Return to Text
  56. O. R. S. C. 987 Mtg., Dec. 8, 1961, p. 9, Para. 40, p. 11, Para. 47. Also see I. C. L. Q., (Jan., 1969), p. 41 at p. 51. Return to Text
  57. Ibid. Return to Text
  58. U. N. Monthly Chronicle, (Jan., 1968), p. 30. Return to Text
  59. Jessup and Taubenfeld: Controls for Outer-space and the Antarctic Analogy, (1959), p. 214. Return to Text
  60. Daniel S. Cheever: The Role of International Organization in Ocean Development. Int. Orgn., (Summer, 1968), p. 629 at p. 639. Return to Text
  61. Ibid. at p. 648. Return to Text
  62. Lauterpacht: Sovereignty Over Submarine Areas, Br. Yr. Bk. 1 L. (1950), p. 376 at p. 342. Return to Text
  63. Leon Uris: Exodus, (1958), p. 498. Return to Text
  64. Lyndon B. Johnson: Public Papers of the President, Book II, (1966), p. 722. Return to Text
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