As soon as the hearings are printed, you will all have copies and we will want further comments.

So thank you so much for being here and for participating.

Mr. SULLIVAN. Thank you, Senator.

[Whereupon, at 3:30 p.m., the committee was recessed, to reconvene at 2 p.m., Tuesday, June 19, 1973.]

[The documents submitted by Senators Metcalf and Hansen follow :]

NOTE

EXPLOITATION OF SEABED MINERAL RESOURCES— CHAOS OR LEGAL ORDER?

If life on this planet truly began in the oceans, it is somewhat ironic that man finds himself returning to the cradle of the sea for his continued existence.1 As land resources become depleted, the world increasingly turns to the bounty of the oceans,2 an alternative made possible by a seemingly unlimited technological capability.3 Today, for

1 See Pardo, Development of Ocean Space—An International Dilemma, 31 La. L. Rev. 45, 46 (1970). One may ask if man has ever left the sea. Historical uses of the seabed include anchorage and simple harvesting of marine resources. New socio-economic pressures have led to greater demands on the scabed. These pressures include “1. rising rates of resource use; 2. increasing human population; 3. exotic technologies which require more and different materials; 4. economic exhaustion of terrestrial resources; 5. production ethic, greed; 6. exploration ethic, national ‘prestige,' competitive drive; 7. defense ‘requirements.'” R. McNeil, Exploitation of the Continental Shelf, April 1972, at 3 (unpublished paper on file at the Cornell Law Review).

2 Estimates of the potential mineral wealth of the oceans stagger the imagination. In his speech to the First Committee of the General Assembly [of the United Nations in 1967], Ambassador Pardo of Malta observed that the [manganese] nodules "contain 43 billion tons of aluminum equivalent to reserves for 20,000 years at the 1960 world rate of consumption as compared to known land reserves for 100 years; 358 billion tons of manganese equivalent to reserves for 400,000 years as compared to known land reserves of only 100 years; 7.9 billion tons of copper equivalent to reserves for 6,000 years as compared to only 40 years for land; nearly one billion tons of zirconium equivalent to reserves for 100,000 years as compared to 100 years on land; 14.7 billion tons of nickel equivalent to reserves for 150,000 years as compared to 100 years on land; 5.2 billion tons of cobalt equivalent to reserves for 200,000 years as compared to land reserves for 40 years only; three quarters of a billion tons of molybdenum equivalent to reserves for 30,000 years as compared to 500 years on land. In addition, the Pacific Ocean nodules contain 207 billion tons of iron, nearly 10 billion tons of titanium, 25 billion tons of magnesium, 1.3 billion tons of lead, 800 million tons of vanadium, and so on." J. ANDRASSY, INTERNATIONAL LAW AND THE Resources of THE SEA 18 n.6 (1970).

Potential sources of petroleum beneath the ocean floor are probably more abundant than those on the continents. Estimates range upwards from 1,000 billion barrels. See SPECIAL SUBCOMM. ON THE OUTER CONTINENTAL SHELF OF THE SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS, 91ST CONG., 2D SESS., REPORT ON OUTER CONTINENTAL SHELF App. M (Comm. Print 1970) [hereinafter cited as SHELF REPORT].

3 See, e.g., W. FRIEDMANN, THE Future of the OCEANS 17-29 (1971) [hereinafter cited as FRIEDMANN]; Hearings Before the Subcomm, on the Outer Continental Shelf of the Senate Comm. on Interior and Insular Affairs, 91st Cong., 1st & 2d Sess., pt. 2, at 299-303 (1970) (statement of Dr. M. Spangler, Director, Center for Techno-Economic Studies, Washington, D.C.) [hereinafter cited as Hearings]; Auburn, The International Seabed Area, 20 INT'L & COMP. L.Q. 173, 174-75 (1971).

Despite the wealth of the sea, resources remain scarce in the terminology of economics. Even at stabilized population growth rates, technology may threaten the social order it seeks to improve. More exotic technologies absorb greater amounts of resources in support

576

CORNELL LAW REVIEW

[Vol. 58:575 example, some eighteen percent of the world's petroleum supply comes from offshore sources; by 1980 the figure will approach thirty-five percent.1

Man may well share the fate of the dinosaur” unless he becomes the master of his own technological genius and adopts appropriate mechanisms for the rational and equitable exploitation of ocean resources. The notion of state control of technology in the public interest continues to gain popular support. The question of ocean control must be faced on an international level,' but international decision makers may be hard pressed to keep pace with the constant scientific advancement of members of the world community.8

6

I

EVOLUTION Of the Present FRAMEWORK

Prior to the fifteenth century, instances of assertion of rights in the sea were isolated and limited. By the end of that century, rapidly growing commercial interests gave rise to competing theories of a free as opof higher consumption patterns. Studies indicate that human survival itself may be at stake in the not too distant future-perhaps the next century-unless consumption patterns become drastically less extravagant or new extra-planetary sources of supply become available. See generally J. FORRESTER, WORLD DYNAMICS (1971); TIME, Jan. 24, 1972, at 32.

4 Symposium, Legal Aspects of Seabed Petroleum and Mineral Resource Development, 4 NATURAL RESources Law. 681, 690 (1971) (comments of D. Stang, Assistant to the Under Secretary, Dep't of the Interior).

5 "Twentieth-century man threatens to be a new kind of dinosaur, an animal suffering from a brain ill-adjusted to its environment." FRIEDMANN 120. See also Winterhalter, Book Review, 9 SAN DIEGO L. REV. 747 (1972). Commenting on Professor Friedmann's book, Winterhalter states:

His thesis is simple and to the point: The developing system of laws and government for the oceans is off on the wrong foot. Unless something is done and done now, the same attempted territorial division that has accounted for much of man's problems on dry land will be repeated in the oceans.

Id. at 747.

6 See Pardo, supra note 1, at 45. At the threshold of what may be termed the technological growth-environmental impact syndrome is the question of the degree to which technology can or should be harnessed in the interests of the present and future generations. Who is qualified to define the parameters of "responsible" economic growth, and by what criteria?

7 Id. at 45-46.

8 See Gerstle, The U.N. and the Law of the Sea: Prospects for the United States Seabeds Treaty, 8 San Diego L. Rev. 573, 581-82 (1971). For a history of United Nations activity, see Dole & Stang, Ocean Politics at the United Nations, 50 ORE. L. Rev. 378 (1971).

9 See Freeman, Law of the Continental Shelf and Ocean Resources-An Overview, 3 CORNELL INT'L L.J. 105, 106 (1970). It goes without saying that order in the sea became grounded in economic and military power. Quaere, to what degree, if any, the present world order has progressed from the primordial state.

1973]

SEABED MINERAL RESOURCES

577

posed to a closed sea.10 The concepts of high seas and freedom of the high seas developed in opposition to the extreme claims of maritime jurisdiction advanced by Spain and Portugal." The classic competing expositions by Hugo Grotius12 and John Selden13 eventually evolved into the division of "high seas" and "territorial seas," a distinction well established by the end of the seventeenth century.14 The eighteenth and

10 See S. CASEY, PRECEPT FOR Benthic Exploration and ExpLOITATION 11 (1968); notes 13 & 14 infra.

11 See S. CASEY, supra note 10, at 11-12; Freeman, supra note 9, at 109; note 15 infra. In 1494, Spain and Portugal, claiming exclusive rights, effectively divided the oceans of the world, known and unknown, east and west of a north-south line drawn in the vicinity of the Cape Verde Islands. Freeman, supra note 9, at 108.

12 See H. GROTIUS, Mare LIBERUM (1608); H. Grotius, De Jure Praedae (1609). Grotius developed the free sea doctrine of the early Roman jurists. He urged that the sea, much like the air, was not subject to appropriation. Since by its nature the sea resists individual possession, it remains res communis—the property of all—and the exclusive property of no one. Grotius argued his thesis in refuting Portuguese monopoly claims to the East Indies trade bonanza through the South Atlantic. See J. OUDENDIJK, STATUS AND EXTENT OF ADJACENT WATERS 19-20, 25-26 (1970).

13 See J. SELDEN, MARE CLAUSUM SINE DOMINIO MARIS (1635). Selden "undertook to prove that the sea is capable of private dominion and defended the broad claims of England on the grounds of a good title based on long-standing usage backed by sufficient naval strength.” 1 A. SHALOWITZ, Shore and Sea BOUNDARIES 300 (1962).

14 See Freeman, supra note 9, at 110. Professors McDougal and Burke offer a functional analysis of terms such as "territorial sea," "high seas," and "continental shelf” in the context of exclusive and inclusive claims and counterclaims in the sea by a variety of decision makers at national and international levels of decision making. They state that "[t]he historic function of the international law of the sea has long been recognized as that of achieving an appropriate balance between the special exclusive demands of coastal states, and other special claimants, and the general inclusive demands of all other states in the world arena." McDougal & Burke, Crisis in the Law of the Sea: Community Perspectives Versus National Egoism, 67 YALE L.J. 539, 539 (1958) (footnote omitted). Thus McDougal urges

caution in using these words: internal waters, territorial sea, contiguous zone, continental shelf, and high seas. These are normative, ambiguous words. They refer both to facts and to legal consequences. They purport both to describe and to state preferences. It is better to think simply in terms of the geographical distribution of these types of claims to waters. The labels are too often merely reasons, justifications, that are given for different types of decisions or choices among competing claims.

McDougal, International Law and the Law of the Sea, in THE LAW OF THE SEA 16 (L. Alexander ed. 1967).

Compare the following standard legal definitions used by the U.S. Department of Commerce:

Marginal Sea (also called Territorial Sea, Adjacent Sea, Marine Belt, Maritime Belt, and 3-Mile Limit).-The water area bordering a nation over which it has exclusive jurisdiction, except for the right of innocent passage of foreign vessels. It is a creation of international law, although no agreement has thus far been reached by the international community regarding its width. It extends seaward from the low-water mark along a straight coast and from the seaward limits of inland waters where there are embayments. . . . The United States has

97-898 O - 73 - 23

578

CORNELL LAW REVIEW

[Vol. 58:575 nineteenth centuries witnessed efforts to define the line between territorial and high seas. The claim to a three-mile territorial limit, for instance, grew in part out of the purported range of the eighteenthcentury cannon.15 With the twentieth century came a new type of jurisdictional claim.

The Truman Proclamation in 1945 marked the birth of the continental shelf doctrine.16 Under this doctrine, the coastal nation claims

traditionally claimed 3 nautical miles as its width and has not recognized the claims of other countries to a wider belt.

A. SHALOWITZ, supra note 13, at 300.

High Seas. The open sea beyond and adjacent to the territorial sea, which is subject to the exclusive jurisdiction of no one nation. Littoral nations frequently exercise limited jurisdiction over portions of the high seas adjacent to their coasts for purposes of enforcing customs and other regulations. . . . The Geneva Convention on the High Seas defines it as "all parts of the sea that are not included in the territorial sea or in the internal waters of a state." Id. at 293.

...

Continental Shelf.—The submerged portion of a continent which slopes gently seaward from the low-water line to a point where a substantial break in grade occurs, at which point the bottom slopes seaward at a considerable increase in slope until the great ocean depths are reached.

Id. at 285. This is a strictly geological definition.

Contiguous Zones.-Zones beyond the marginal sea over which a nation exercises certain types of jurisdiction and control without affecting the character of the area as high seas.

Id. at 284.

15 As the community of nations generally rejected exclusive claims in the high seas, there developed the more modest claim to a narrow belt of territorial sea adjacent to each nation's coast. Agreement on the width of this belt, however, was lacking from the outset. See generally J. OUDENDIJK, supra note 12.

The three-mile cannon shot rule is generally attributed to the Dutch jurist Bynkershoek, who reasoned that "control from the land ends where the power of men's weapons ends." Quoted in W. BISHOP, INTERNATIONAL LAW: CASES AND MATERIALS 590 (3d ed. 1971). See also Kent, The Historical Origins of the Three-Mile Limit, 48 Am. J. INT'L L. 537 (1954). The rationale underlying the rule was soon to become obsolete with the advance of gun technology. Other suggestions as to width were made in terms of fixed distances (such as 60 or 100 miles), number of days journey from the coast, or line of sight (which could range anywhere from 8 to 20 miles, depending upon height of eye). See J. OUDENDIJK, supra note 12, at 108.

Lacking the necessary two-thirds vote for agreement on a specified limit, the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone left the breadth of the territorial sea undefined. A. SHALOWITZ, supra note 13, at 241-42. Thus, a wide variety of claimed territorial sea limits continues to plague those seeking a universal standard. See generally FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS, LIMITS AND STATUS OF THE TERRITORIAL SEA, EXCLUSIVE FISHING ZONES, FISHERY CONSERVATION ZONES AND THE CONTINENTAL SHELF (1969).

16 Professor McDougal views the continental shelf doctrine as one of many special coastal nation claims to high seas contiguous zones:

When the concept of the contiguous zone is observed descriptively, it may be seen to be a technical term which authoritative decision-makers invoke to honor many various occasional and particular exercises of authority by coastal states beyond the territorial sea. Easily the most spectacular, and indicative of the

...