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Mare raptum
Ocean Management, 2 (1974) 75--88 © Elsevier Scientific Publishing C o m p a n y , A m s t e r d a m -- Printed in The Netherlands
Opinion *
Mare
Rapture
Government Proposals for Ocean Mismanagement, Caracas, 1974
In the Spring of last year a Motion was put on the order paper of the House of Commons, supported by 101 M.P.'s. It reads as follows:
OCEAN SPACE FOR MANKIND " T h a t this House, recalling Early Day M o t i o n No. 271 in 1968, signed by nearly 100 h o n o u r a b l e Members, notes that, as was there r e c o m m e n d e d , the ocean floor b e y o n d the limits of national jurisdiction was declared by the United Nations General Assembly in December 1970 to be the c o m m o n heritage of mankind, but deeply regrets that since then this principle has been steadily eroded, in particular by the actions of Her Majesty's G o v e r n m e n t in proposing the apportionm e n t of the ocean floor into separate licensed blocks, each to be separately policed by the licensed state, and by listing** for discussion at the n e x t Law of the Sea Conference a proposal entitled, Exclusive e c o n o m i c zone b e y o n d the territorial seas, which w o u l d effectively r e m o v e f r o m mankind the richest part of its heritage, endanger f r e e d o m of scientific research, and increase the likelihood o f international conflict."
At a press conference on June 15, 1973 it was stressed again, this time as the most important point, that "The likelihood of international conflict could be increased very many times if what governments propose as the future system for ocean management is agreed at the forthcoming Law of the Sea Conference". Those expressing this view at the press conference in the House of Commons in L o n d o n were Mr Peter Archer Q.C., M.P., Chairman of the all-party Parliamentary Group for World Government, and other Group members present, namely, Sir J o h n Foster Q.C., M.P. (Conservative), the Rt. Hon. John Silkin M.P. (Labour), Lord Wilberforce and Bishop Flem* This paper may be regarded as controversial by some readers; it is published in the hope that it will p r o m p t discussion. The opinions expressed in this article are those of the author, but not necessarily those of the editors and publisher o f this journal. ** This more accurately should read " b y concurring in listing", since Her Majesty's Gove r n m e n t abstained on the v o t e on this point.
75
ing, Dean o f Windsor, a f or m e r m e m b e r of the House of Lords and of the Royal Commission on the Environment. The press s t a t e m ent which t hey issued was timed to coincide with the opening o f the final session of the UN Seabed Com m i t t ee meeting in Geneva during July and August. Its aim was to sound the alarm, for what governments are proposing is a carve-up for the benefit of nation-states of what belongs to the h u m a n race as m uch as the air they breathe -- i.e., the oceans, the bed o f the oceans and the resources of the oceans, and this at a time when these priceless assets are under their greatest threat from pollution, over-exploitation and misuse. The Parliamentary Group, which has a membership o f nearly 100 Members of Parliament and 35 Peers in the U.K. parliament, has expressed its views on ocean space repeatedly to the Foreign Office since 1955. Its interest is explained in the opening paragraph of a m e m o r a n d u m to the Marquess of Lothian, Under-Secretary of State at the Foreign Office on March 4, 1971, as follows: " T h e G r o u p believes t h a t t h e a c c e p t a n c e at t h e UN in p r i n c i p l e o f an i n t e r n a t i o n a l r e g i m e for t h e area o f o c e a n space b e y o n d t h e limits o f n a t i o n a l j u r i s d i c t i o n offers a u n i q u e o p p o r t u n i t y t o a d v a n c e t o w a r d s a m o r e effective s y s t e m o f w o r l d order. T o m a k e t h e m o s t of this o p p o r t u n i t y s h o u l d be t h e prime c o n s i d e r a t i o n in devising t h e regime, since w i t h o u t a p a t t e r n for o r d e r o n a w o r l d basis, t h e e n v i r o n m e n t of t h e p l a n e t o n land, as well as in t h e sea, is u n l i k e l y to c o n t i n u e h a b i t a b l e b y human beings."
In a speech to a Conference at St. George's House, Windsor Castle, a year later, the Dean of Windsor amplified this point when he included the importance o f ocean space management, a laboratory for something even bigger, as one o f the three elements of the World Federalist movement: " A belief t h a t t h e c o n c e p t of t h e ' c o m m o n heritage of m a n k i n d ' w h i c h has b e e n a c c e p t e d b y g o v e r n m e n t s as t h e basis for e x p l o r a t i o n a n d e x p l o i t a t i o n o f o c e a n space b e y o n d t h e limits o f n a t i o n a l jurisdict i o n s h o u l d b e applied in differing ways a n d w i t h differing qualificat i o n s to t h e w h o l e e n v i r o n m e n t a n d given legal s i g n i f i c a n c e . "
This basic view must initially have been shared by some of the members of the UN when the debate started in 1968. It is after all a com m onsense view and one supported by virtually everyone n o t involved in the UN Seabed Committee, and it f o u n d expression in the first two paragraphs of the Declaration o f Principles (2979 XXV) a d o p t e d by the General Assembly on Decemb er 17, 1970: " T h e seabed and ocean floor, and the sub-soil thereof, b e y o n d the limits of national jurisdiction, as well as the resources of the area, are the c o m m o n heritage of m a n k i n d " and "shall not be subject to 76
appropriation by any means by states or persons, national or juridical, and n o state shall claim or exercise sovereignty or sovereign rights over any part t h e r e o f " ; and Article 7 adds t hat the " e x p l o r a t i o n and exploitation of its resources shall be carried out for the benefit of mankind as a whole". This same UN C o m m i t t e e three years later evidently regards such ideas as Utopian nonsense, or at any rate, hardly worth a mention. In the "lists of subjects and issues relating to the Law of the Sea" adopt ed by the Committee in 1972, " t h e c o m m o n heritage of m a n k i n d " is n o t m e n t i o n e d at all. The baby has been effectively t hr ow n o u t with the sea water. As with "We the peoples" in the UN Charter, " t h e c o m m o n heritage of m a n k i n d " is likely to find its place only in the preamble of the proposed convention, a grim reminder o f how what Lord Wilberforce called the matrix of the jurisprudence governing the regime for ocean space, being suspected of becoming a rival or critic of national self-worship, was reduced to a hollow form of words, signifying, if anything, the opposite of what ordinary people would think it means. Many of the agenda items of the proposed Law of the Sea Conference provide occasions for delegates to express their alibis for claiming sovereignty over an area of ocean space i.e., 200 miles, which is the m a x i m u m the majority of coastal states think t hey can get away with. And this 200 miles (or alternatively an area up t o the 3,000 metres isobath) called " p a t r i m o n i a l " sea, "exclusive economic z o n e " or "adjacent sea", " w o u l d n o t leave any significant h y d r o c a r b o n resources to be shared by m a n k i n d " , according to the UN's own r e p o r t (A/AC 138/87 of June 4, 1973). If accepted -- and one whole section of the proposed agenda is devoted to it -- the claim makes a m o c k e r y of the common-heritage principle.
What has gone wrong? Dr Alexander King, Director of Scientific Division, OECD, has offered a diagnosis: " G o v e r n m e n t s of nation-states, as presently organised, are structurally constrained from the width of vision and scope of action essential for planetary management. We say this because their jurisdiction is limited within territorial boundaries, their political systems encourage and even institutionalise shortsighted self-interests, and their capacity to cope with the new dimension of proliferating demands upon t hem is t oo limited." It is th er ef o r e n o t surprising t hat the UN Seabed Com m i t t ee has spent its time trying to identify the national interest of its members. But the sum of these short-term national interests have practically nothing to do with the interests of the h u m a n race as a whole, except to c o n d e m n it for perhaps the n e x t 1000 years to f ur t her struggles such as have bedevilled the h u m a n race on land, and for the same reason, for the past 10,000 years. Secondly, it seems to be a fact t ha t after five years of listening to each 77
other, representatives of nation-states in the UN Seabed Committee have become saturated with the constant re-iteration of what they hear. They are victims of their own advertising campaign. It is government by real-estate salesmen. Thirdly, the UN Seabed Committee excludes non-governmental opinion. Thus there is no spokesman for the world c o m m u n i t y and no one can vote for the general interest or the long-term view. Even the intergovernmental agencies of UN are present only as observers. In the proposals for the new machinery, their role will be no different. The group which is likely to lose out most as the result of this is the scientific c o m m u n i t y , whose freedom of research will be largely eliminated if the proposals made at UN affecting this point are adopted. It is obvious that ocean space is one ecological whole. Yet the demands for various kinds of frontiers, horizontal and vertical, make nonsense of this. Already by September 1970 Professor Burke of the University of Washington in the occasional paper published by the Law of Sea Institute, Rhode Island, on "Marine Science Research and International Law" called attention to the increasing restrictions on scientific investigation (e.g. Brazil requires some 14 categories of information to be supplied, when applying for consent, in spite of a resolution of the Intergovernmental Oceanographic Commission(IOC) (VI-13) in the opposite direction in 1969). And Professor Wenk, Executive Secretary of the U.S. National Council on Marine Resources and Engineering Development under President Johnson, writes in his book "Politics of the Ocean" that in 1971 "preparations by the U.S. for the Law of the Sea Conference were reported as trading off some freedom of research in exchange for freedom of navigation". Article 6 of the draft treaty submitted by Colombia, Mexico and Venezuela (A/AC.138/SC.II/L.21 of 2.4.73) states that " t h e coastal state has the duty to promote and the right to regulate the conduct of scientific research within the patrimonial sea". Although the statutes of the IOC state that " t h e functions of the Commission shall be to (1) promote freedom of scientific investigation of the oceans for the benefit of all mankind, taking into account all interests and rigths of coastal countries concerning scientific research in the zones under their jurisdiction", if present proposals by Her Majesty's Government and France for a system of licensed blocks in the open ocean were to be accepted, the area covered by the phrase "zones under their jurisdict i o n " could well be interpreted to cover the whole of the world's oceans and marine scientists will be required to make detailed applications in advance to any number of national authorities, even though many of these authorities would have no capability to exploit, let alone police, the zones in question. It is sad that IOC and the other scientific bodies concerned such as SCOR, ICES, ICSU, have allowed themselves to drift or to be put into an inferior 78
position by the diplomats and lawyers, so that none of t hem appear on the list o f participants at the UN Seabed meetings. Whatever the reasons for w ha t has gone wrong, the m o m e n t has surely arrived to enquire by what right representatives of national governments can claim or acquire areas of this planet which on their own declaration are b e y o n d national jurisdiction. According to Professor Tinbergen, "legally speaking governments acting in concert might have no right to act in comm o n in an area where none has any right to act singly". Who can then act for mankind? Who can speak for man? Governments can hardly monopolise the right to do so since the system of representation according to where one lives, or happens to have been born, is sectional and tribalistic. It is a system which we k n o w brings o u t the divisiveness of the h u m a n race. It is a land-based system and has no relevance to the man ag emen t of ocean space. Quoting Margaret Mead, "w e need bet t er models than the national state, and bet t er models than federation of previously sovereign national units. We have y e t to develop such a model in which activities, rather than spacial entities which are b o u n d e d and mutually exclusive, can be interwoven over the surface of the globe, transcending ot her lines o f allegiance and participation." Should there n o t be a radical departure in which major non-governmental groupings who have fewer vested interests than have governments in frontiers and territorially, should take the lead? Such an initiative for ocean space could serve as a p r o t o t y p e for future global management. The Group is obliged to Mrs Borgese and the Pacem in Maribus team, with which it has always been closely connected, for setting o u t a description of the " i d e a l " maritime authority. It would be a multirepresentational system, with chambers representing the scientific/academic c o m m u n i t y , industry (sub-divided into mining and fishing/navigational), and the consumer, in addition to governmental representation. Governments should be viewed as only one of the channels through which people are represented, and n o t even the d o m i n a n t one. The three non-governmental chambers would be bridging the nation-state divisions, instead of accentuating th em . And because of this bridging, the maritime authority could in time gain cohesion rather than losing it, as happens with m any inter-governmental structures. To avoid strife about which is the most senior of the non-governmental sectors, t hey could be given in turn a period of time -- say three years -- in which by r ot a t i on each would be the d o m i n a n t partner. The Conference on the Law of the Sea, CLOS '74, is unlikely to reach agreement for some time, perhaps years. While it is dithering, non-governmental bodies can bestir themselves to exercise their rights in ocean space too. There are several different ways in which mankind could move towards a system: as a beginning, the troika of non-governmental chambers or sectors 79
could convene themselves and act without governments. Trade-union secretariats operating internationally, consumer associations already organised in an international union, groups of scientists such as Pugwash or ICSU, are embryos of new means of expression for mankind. But already history has provided us with examples of two institutions which in this field exemplify the validity of a non-governmental approach: Lloyds Register of Shipping and Lloyds Marine Insurance system, both of which are models of what can be achieved by people of imagination who start coffee houses. They are still two of the most effective institutions of the marine world and neither is governmental. Another instance for non-governmental action has been suggested by Dr Mates of Yugoslavia: expert opinion favours the complete prohibition of oil dumping, the dumping of out-right poisonous material, and the dumping of paper and pulp residues. Dr Mates suggests that an ad hoc group should be formed to take action, widely regarded as salutary within the whole problem of the seas, and financed by a self-imposed levy on users of the ocean and atmosphere. Certainly the threat of an extra-governmental agency could be an instrument of pressure on governments. A third element for getting the ocean regime under way is the proposal for a movement with a title such as "Trustees of Ocean Space" to provide ordinary people with information and to enable chemical and anti-pollution experts to form an organisation for the conservation of ocean space. A letter to the Times on July 2, signed by six leading personalities, members of the Group, advocated this, which should be seen as an extension of Leo Mates' proposal. Such an initiative could well lead on to an "international marine a u t h o r i t y " as advocated by the Bow Group of the Conservative party in a recent publication. The IMA would start as the body to improve and lay down higher standards for safety at sea. Later it might develop other powers. Next, there could be a global consortium of long-distance fishermen to catch and cultivate fish for distribution to the world's population on a global basis. Already four countries catch half of all the fish, so it should not be difficult to create a world fishing consortium to "denationalise" fish. If organised regionally, it could tie in with existing fisheries Agreements, such as those for North-East and North-West Atlantic, etc., but the present defects of those Agreements would need to be remedied in the process. Fourthly, there could be an extended use of the Inter-governmental Oceanographic Commission, which, linked to industry and other non-governmental interests, might undertake projects of a global character in ocean space. It has been proposed by Ceylon that support should be given for effective centralised global supervision through, e.g., Global Reference Centres on waste disposal, on water quality monitoring, on marine biotoxins and in respect of safety standards. These Centres, operated, like Lloyds, by nongovernmental agencies, might well be part of the extension of activities of the IOC. The Earth Watch Monitoring System could be part of it too. 8O
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Fig. 1. Exploration blocks beyord the limits of national jurisdiction (200-m isobath), each ohivisable for exploration into up to 16 sub-divisions (see top line of grid for example). Drawn to scale.
As to mining the ocean floor, the Parliamentary Group has based its proposal on the c o m m o n heritage concept. Instead of the proposals by Britain and France for a grid system in the areas beyond the limits of national jurisdiction, allocated by a registering and licensing system, but policed by its national leaseholder, the Group believes that the registering and licensing authority should itself be operational. To use nation-states as the agents of enforcement would result in unremitting conflict between them. The main inspectorate and enforcement should come from the new maritime authority. In a world under surveillance from space satellites, the creation of a global system of controls should not be difficult. Senator Pell of Rhode Island has for long been persuaded that there should be a "SeaGuard" based on the methods and procedures of the U.S. Coastguard Service. There is nothing wrong with such a proposal; it is far more realistic than having policing by 120 different national police forces, each of them backed by umbrage-taking governments. The essential would be to build up the Sea-Guard as an inspectorate and enforcement agency of the non-governmental activities outlined above, to the point where it acquired sufficient confidence to be able to make use, where necessary, of national forces in an ancillary role. In a m e m o r a n d u m to the Foreign Office in March 1971, the Group made some observations about the dangers of extending national legal systems into ocean space. It pointed out that the British (and French) proposal (of 17.8.70 and A/AC 138/46 of 30.7.71) "is pot-luck or international bingo" {see Fig.l), since some blocks will be rich in resources while others will not. There is no guarantee that the needy country will get the rich block. The whole history of enclosure on land points in the opposite direction. Given t h a t resources are n o t likely to be known, the British and French proposals will n o t offer equality to states. The extension of state control over "common heritage" will lead to a confusing multiplicity of control, and in fact to a jurisdictional jungle, when it is remembered that a block for exploration purposes may be sub-divided into up to 16 sub-sections, each with a different national licensee. Much better for all licensees to operate under one c o m m o n international control. The argument that corporations or international companies have at present no recognised status in international law is a red herring: if this does not prevent them from taking blocks or licenses on the Continental Shelf, why should it prevent them from taking similar blocks or licenses from the international authority on the seabed? There is no reason why the authority should not incorporate as a term in any license to corporations or companies the body of regulations and recommended practices which will have to emerge, and punish for infractions by deprivation of license, fines, etc. In fact, it is likely that a system of inspec85
tion, control and jurisdiction by the proposed authority will be far more effective than that of many national governments who will surely apply for " b l o c k s " and license out to these very same operating companies. In short, we have no real guarantee that all applicant States will effectively control and supervise activities within the " b l o c k s " allocated to them. Companies applying for licenses can be vetted for adequacy of capital, expertise, etc., in a way which no State could be. Companies properly vetted will be likely to be more responsible as licensees than many States. If it is believed that, in the final analysis, one needs a " S t a t e " t o be held responsible for any serious damage to the environment, it can be pointed out that the large, adequately financed corporations can often be better defendants in any proceedings brought: they will probably have larger resources from which to pay damages; they will n o t be immune from execution; and they can in any event be compelled to insure from the outset of their license. The "arrangement for verifying that States comply with the Agreement" which, in HMG's paper, amounts to nothing more than " t h e right under clearly defined arrangements to inspect operations which were being carried o u t " and "States would have to retain the right to refuse inspection by individuals whom they regarded as unacceptable", is clearly unworkable, particularly when one considers that there could be between 5,000 and 7,000 blocks of 8,000 km e * in the Atlantic alone, and something between 25,000 and 30,000 over the whole seabed. How Afghanistan or Uganda can provide a control and enforcement system for, perhaps, 300 blocks scattered about the seabed, is n o t explained. Even the British Empire at its zenith was only just able to undertake that kind of c o m m i t m e n t on land. And how are governments to be ejected from their blocks after thirty years or so? A decision in favour of a national system of partition would clearly be irreversible since it is impossible to imagine that, once vested interests in specific areas have been established, these would ever be given up to an international authority. It is now for the politicians of land-locked and shelf-locked countries to insist on the protection of world c o m m u n i t y interests, and particularly in those areas which coastal states annexe or otherwise appropriate for their own benefit in the interim. The so-called 'patrimonial' sea of up to 200 miles, will, if accepted, mean that for the foreseeable future all areas capable of economic exploitation will be areas of national jurisdiction. The idea of the area beyond as the c o m m o n heritage of mankind becomes entirely aca* As suggested in t h e " N i x o n P r o p o s a l " . The D e p a r t m e n t o f Trade and I n d u s t y (U.K.) leases o u t blocks o f o n l y 2 0 0 - - 2 5 0 k m 2 in t h e N o r t h Sea, w h i c h w o u l d m e a n an even greater n u m b e r o f blocks.
86
demic. The creeping jurisdiction by coastal states will also lead to the exclusion, or obstruction, of scientific research. Similarly the prospect of wealth accumulating in the hands of international agencies for use in economic development of poorer nations, becomes an illusion. It is simply n o t true that the threat of over-fishing by Japan and the U.S.S.R. is the motivation behind the 200-mile economic zone movement. The real motivation is economic greed by a number of states well-placed geographically. Over-fishing will not be solved by a coastal-state monopoly, but only by agreed and supervised measures of conservation. There are many instances of destructive exploitation by coastal states (e.g. Icelandic destruction of herring stocks) and monopolistic claims will aggravate rather than cure this problem. A major extra-governmental initiative to manage the oceans could be a most helpful step in tackling our unprecedented planetary crisis. If taken, it would perhaps focus world-wide public opposition against the insidious creep of inter-state power politics into ocean space. It may also counteract the disturbing evidence of a "Nero S y n d r o m e " among national governments. We must make sure that Ambassador Pardo's fear of witnessing " t h e conference on the first partition of the sea in favour of coastal states" does not come true. Intoxication with accretion of anchovy catch is an inadequate basis for regulating the management of ocean space. The man who knows how to take over the property next door is n o t necessarily, or even likely to be, an example of administrative know-how for 5/7ths of the planet's surface. The idea that coastal states represent a large part of mankind, and therefore can best act for it, is highly specious. For instance, it is argued that they would be the best instrument for control of pollution, since they are responsible for so much of that pollution. But this would be employing the fox to guard the chickens: it merely provides nation-states with a license to pollute. To extend the jurisdiction of coastal states will mean that they will be plaintiff, judge and jury in their own zone and, unlike the land, the waters of that zone are about as mobile, in the words of Thor Heyerdahl, "as water in a boiling kettle". So everyone will be affected. The safety of this planet must n o t be left to geographically and administratively haphazard control by land-based organisations up to 200 miles away, many of them w i t h o u t any experience whatever of the problems with which they have to deal. According to Mr Bustamente of Ecuador (on July 20, 1973), " n o extraneous authority but the state's own legal will empower it to extend its jurisdiction to the adjacent sea over which it proclaimed sovereignty". He was followed by Mr Bakula of Peru, who "wished to enumerate what his country regarded as some of the ultimate aims of the reformulation of the law of the sea: first (our italics), the protection and exploitation of natural resources for the benefit of the coastal state; (secondly, the prohibition of 87
international coercion and of aggression or the threat of aggression against countries which were reclaiming their natural resources; etc"). The alms of coastal states are clear enough. Perhaps the only thought which may give them pause is that the number of "dis-advantaged" states either having no coast line, or being shelf-locked, or being zone-locked, i.e., at the mercy of the patrimonialists, could rise to 61, i.e., half the members of the United Nations. It has been estimated that the country which would acquire the greatest area by the 200 mile patrimonial sea proposal is the U . S . A . although it has argued against such a proposal. The only advocates at UN of the c o m m o n heritage of mankind as the real basis for ocean space appear to be Nepal and Singapore. Perhaps they happen to have world federalist spokesmen. Let us take c o m f o r t from the fact that t r u t h traditionally emanates from still small voices. Patrick Armstrong Parliamentary Group for World Government, House of Commons, London (Great Britain) (Accepted for publication January 15, 1974)
88
Opinion *
Mare
Rapture
Government Proposals for Ocean Mismanagement, Caracas, 1974
In the Spring of last year a Motion was put on the order paper of the House of Commons, supported by 101 M.P.'s. It reads as follows:
OCEAN SPACE FOR MANKIND " T h a t this House, recalling Early Day M o t i o n No. 271 in 1968, signed by nearly 100 h o n o u r a b l e Members, notes that, as was there r e c o m m e n d e d , the ocean floor b e y o n d the limits of national jurisdiction was declared by the United Nations General Assembly in December 1970 to be the c o m m o n heritage of mankind, but deeply regrets that since then this principle has been steadily eroded, in particular by the actions of Her Majesty's G o v e r n m e n t in proposing the apportionm e n t of the ocean floor into separate licensed blocks, each to be separately policed by the licensed state, and by listing** for discussion at the n e x t Law of the Sea Conference a proposal entitled, Exclusive e c o n o m i c zone b e y o n d the territorial seas, which w o u l d effectively r e m o v e f r o m mankind the richest part of its heritage, endanger f r e e d o m of scientific research, and increase the likelihood o f international conflict."
At a press conference on June 15, 1973 it was stressed again, this time as the most important point, that "The likelihood of international conflict could be increased very many times if what governments propose as the future system for ocean management is agreed at the forthcoming Law of the Sea Conference". Those expressing this view at the press conference in the House of Commons in L o n d o n were Mr Peter Archer Q.C., M.P., Chairman of the all-party Parliamentary Group for World Government, and other Group members present, namely, Sir J o h n Foster Q.C., M.P. (Conservative), the Rt. Hon. John Silkin M.P. (Labour), Lord Wilberforce and Bishop Flem* This paper may be regarded as controversial by some readers; it is published in the hope that it will p r o m p t discussion. The opinions expressed in this article are those of the author, but not necessarily those of the editors and publisher o f this journal. ** This more accurately should read " b y concurring in listing", since Her Majesty's Gove r n m e n t abstained on the v o t e on this point.
75
ing, Dean o f Windsor, a f or m e r m e m b e r of the House of Lords and of the Royal Commission on the Environment. The press s t a t e m ent which t hey issued was timed to coincide with the opening o f the final session of the UN Seabed Com m i t t ee meeting in Geneva during July and August. Its aim was to sound the alarm, for what governments are proposing is a carve-up for the benefit of nation-states of what belongs to the h u m a n race as m uch as the air they breathe -- i.e., the oceans, the bed o f the oceans and the resources of the oceans, and this at a time when these priceless assets are under their greatest threat from pollution, over-exploitation and misuse. The Parliamentary Group, which has a membership o f nearly 100 Members of Parliament and 35 Peers in the U.K. parliament, has expressed its views on ocean space repeatedly to the Foreign Office since 1955. Its interest is explained in the opening paragraph of a m e m o r a n d u m to the Marquess of Lothian, Under-Secretary of State at the Foreign Office on March 4, 1971, as follows: " T h e G r o u p believes t h a t t h e a c c e p t a n c e at t h e UN in p r i n c i p l e o f an i n t e r n a t i o n a l r e g i m e for t h e area o f o c e a n space b e y o n d t h e limits o f n a t i o n a l j u r i s d i c t i o n offers a u n i q u e o p p o r t u n i t y t o a d v a n c e t o w a r d s a m o r e effective s y s t e m o f w o r l d order. T o m a k e t h e m o s t of this o p p o r t u n i t y s h o u l d be t h e prime c o n s i d e r a t i o n in devising t h e regime, since w i t h o u t a p a t t e r n for o r d e r o n a w o r l d basis, t h e e n v i r o n m e n t of t h e p l a n e t o n land, as well as in t h e sea, is u n l i k e l y to c o n t i n u e h a b i t a b l e b y human beings."
In a speech to a Conference at St. George's House, Windsor Castle, a year later, the Dean of Windsor amplified this point when he included the importance o f ocean space management, a laboratory for something even bigger, as one o f the three elements of the World Federalist movement: " A belief t h a t t h e c o n c e p t of t h e ' c o m m o n heritage of m a n k i n d ' w h i c h has b e e n a c c e p t e d b y g o v e r n m e n t s as t h e basis for e x p l o r a t i o n a n d e x p l o i t a t i o n o f o c e a n space b e y o n d t h e limits o f n a t i o n a l jurisdict i o n s h o u l d b e applied in differing ways a n d w i t h differing qualificat i o n s to t h e w h o l e e n v i r o n m e n t a n d given legal s i g n i f i c a n c e . "
This basic view must initially have been shared by some of the members of the UN when the debate started in 1968. It is after all a com m onsense view and one supported by virtually everyone n o t involved in the UN Seabed Committee, and it f o u n d expression in the first two paragraphs of the Declaration o f Principles (2979 XXV) a d o p t e d by the General Assembly on Decemb er 17, 1970: " T h e seabed and ocean floor, and the sub-soil thereof, b e y o n d the limits of national jurisdiction, as well as the resources of the area, are the c o m m o n heritage of m a n k i n d " and "shall not be subject to 76
appropriation by any means by states or persons, national or juridical, and n o state shall claim or exercise sovereignty or sovereign rights over any part t h e r e o f " ; and Article 7 adds t hat the " e x p l o r a t i o n and exploitation of its resources shall be carried out for the benefit of mankind as a whole". This same UN C o m m i t t e e three years later evidently regards such ideas as Utopian nonsense, or at any rate, hardly worth a mention. In the "lists of subjects and issues relating to the Law of the Sea" adopt ed by the Committee in 1972, " t h e c o m m o n heritage of m a n k i n d " is n o t m e n t i o n e d at all. The baby has been effectively t hr ow n o u t with the sea water. As with "We the peoples" in the UN Charter, " t h e c o m m o n heritage of m a n k i n d " is likely to find its place only in the preamble of the proposed convention, a grim reminder o f how what Lord Wilberforce called the matrix of the jurisprudence governing the regime for ocean space, being suspected of becoming a rival or critic of national self-worship, was reduced to a hollow form of words, signifying, if anything, the opposite of what ordinary people would think it means. Many of the agenda items of the proposed Law of the Sea Conference provide occasions for delegates to express their alibis for claiming sovereignty over an area of ocean space i.e., 200 miles, which is the m a x i m u m the majority of coastal states think t hey can get away with. And this 200 miles (or alternatively an area up t o the 3,000 metres isobath) called " p a t r i m o n i a l " sea, "exclusive economic z o n e " or "adjacent sea", " w o u l d n o t leave any significant h y d r o c a r b o n resources to be shared by m a n k i n d " , according to the UN's own r e p o r t (A/AC 138/87 of June 4, 1973). If accepted -- and one whole section of the proposed agenda is devoted to it -- the claim makes a m o c k e r y of the common-heritage principle.
What has gone wrong? Dr Alexander King, Director of Scientific Division, OECD, has offered a diagnosis: " G o v e r n m e n t s of nation-states, as presently organised, are structurally constrained from the width of vision and scope of action essential for planetary management. We say this because their jurisdiction is limited within territorial boundaries, their political systems encourage and even institutionalise shortsighted self-interests, and their capacity to cope with the new dimension of proliferating demands upon t hem is t oo limited." It is th er ef o r e n o t surprising t hat the UN Seabed Com m i t t ee has spent its time trying to identify the national interest of its members. But the sum of these short-term national interests have practically nothing to do with the interests of the h u m a n race as a whole, except to c o n d e m n it for perhaps the n e x t 1000 years to f ur t her struggles such as have bedevilled the h u m a n race on land, and for the same reason, for the past 10,000 years. Secondly, it seems to be a fact t ha t after five years of listening to each 77
other, representatives of nation-states in the UN Seabed Committee have become saturated with the constant re-iteration of what they hear. They are victims of their own advertising campaign. It is government by real-estate salesmen. Thirdly, the UN Seabed Committee excludes non-governmental opinion. Thus there is no spokesman for the world c o m m u n i t y and no one can vote for the general interest or the long-term view. Even the intergovernmental agencies of UN are present only as observers. In the proposals for the new machinery, their role will be no different. The group which is likely to lose out most as the result of this is the scientific c o m m u n i t y , whose freedom of research will be largely eliminated if the proposals made at UN affecting this point are adopted. It is obvious that ocean space is one ecological whole. Yet the demands for various kinds of frontiers, horizontal and vertical, make nonsense of this. Already by September 1970 Professor Burke of the University of Washington in the occasional paper published by the Law of Sea Institute, Rhode Island, on "Marine Science Research and International Law" called attention to the increasing restrictions on scientific investigation (e.g. Brazil requires some 14 categories of information to be supplied, when applying for consent, in spite of a resolution of the Intergovernmental Oceanographic Commission(IOC) (VI-13) in the opposite direction in 1969). And Professor Wenk, Executive Secretary of the U.S. National Council on Marine Resources and Engineering Development under President Johnson, writes in his book "Politics of the Ocean" that in 1971 "preparations by the U.S. for the Law of the Sea Conference were reported as trading off some freedom of research in exchange for freedom of navigation". Article 6 of the draft treaty submitted by Colombia, Mexico and Venezuela (A/AC.138/SC.II/L.21 of 2.4.73) states that " t h e coastal state has the duty to promote and the right to regulate the conduct of scientific research within the patrimonial sea". Although the statutes of the IOC state that " t h e functions of the Commission shall be to (1) promote freedom of scientific investigation of the oceans for the benefit of all mankind, taking into account all interests and rigths of coastal countries concerning scientific research in the zones under their jurisdiction", if present proposals by Her Majesty's Government and France for a system of licensed blocks in the open ocean were to be accepted, the area covered by the phrase "zones under their jurisdict i o n " could well be interpreted to cover the whole of the world's oceans and marine scientists will be required to make detailed applications in advance to any number of national authorities, even though many of these authorities would have no capability to exploit, let alone police, the zones in question. It is sad that IOC and the other scientific bodies concerned such as SCOR, ICES, ICSU, have allowed themselves to drift or to be put into an inferior 78
position by the diplomats and lawyers, so that none of t hem appear on the list o f participants at the UN Seabed meetings. Whatever the reasons for w ha t has gone wrong, the m o m e n t has surely arrived to enquire by what right representatives of national governments can claim or acquire areas of this planet which on their own declaration are b e y o n d national jurisdiction. According to Professor Tinbergen, "legally speaking governments acting in concert might have no right to act in comm o n in an area where none has any right to act singly". Who can then act for mankind? Who can speak for man? Governments can hardly monopolise the right to do so since the system of representation according to where one lives, or happens to have been born, is sectional and tribalistic. It is a system which we k n o w brings o u t the divisiveness of the h u m a n race. It is a land-based system and has no relevance to the man ag emen t of ocean space. Quoting Margaret Mead, "w e need bet t er models than the national state, and bet t er models than federation of previously sovereign national units. We have y e t to develop such a model in which activities, rather than spacial entities which are b o u n d e d and mutually exclusive, can be interwoven over the surface of the globe, transcending ot her lines o f allegiance and participation." Should there n o t be a radical departure in which major non-governmental groupings who have fewer vested interests than have governments in frontiers and territorially, should take the lead? Such an initiative for ocean space could serve as a p r o t o t y p e for future global management. The Group is obliged to Mrs Borgese and the Pacem in Maribus team, with which it has always been closely connected, for setting o u t a description of the " i d e a l " maritime authority. It would be a multirepresentational system, with chambers representing the scientific/academic c o m m u n i t y , industry (sub-divided into mining and fishing/navigational), and the consumer, in addition to governmental representation. Governments should be viewed as only one of the channels through which people are represented, and n o t even the d o m i n a n t one. The three non-governmental chambers would be bridging the nation-state divisions, instead of accentuating th em . And because of this bridging, the maritime authority could in time gain cohesion rather than losing it, as happens with m any inter-governmental structures. To avoid strife about which is the most senior of the non-governmental sectors, t hey could be given in turn a period of time -- say three years -- in which by r ot a t i on each would be the d o m i n a n t partner. The Conference on the Law of the Sea, CLOS '74, is unlikely to reach agreement for some time, perhaps years. While it is dithering, non-governmental bodies can bestir themselves to exercise their rights in ocean space too. There are several different ways in which mankind could move towards a system: as a beginning, the troika of non-governmental chambers or sectors 79
could convene themselves and act without governments. Trade-union secretariats operating internationally, consumer associations already organised in an international union, groups of scientists such as Pugwash or ICSU, are embryos of new means of expression for mankind. But already history has provided us with examples of two institutions which in this field exemplify the validity of a non-governmental approach: Lloyds Register of Shipping and Lloyds Marine Insurance system, both of which are models of what can be achieved by people of imagination who start coffee houses. They are still two of the most effective institutions of the marine world and neither is governmental. Another instance for non-governmental action has been suggested by Dr Mates of Yugoslavia: expert opinion favours the complete prohibition of oil dumping, the dumping of out-right poisonous material, and the dumping of paper and pulp residues. Dr Mates suggests that an ad hoc group should be formed to take action, widely regarded as salutary within the whole problem of the seas, and financed by a self-imposed levy on users of the ocean and atmosphere. Certainly the threat of an extra-governmental agency could be an instrument of pressure on governments. A third element for getting the ocean regime under way is the proposal for a movement with a title such as "Trustees of Ocean Space" to provide ordinary people with information and to enable chemical and anti-pollution experts to form an organisation for the conservation of ocean space. A letter to the Times on July 2, signed by six leading personalities, members of the Group, advocated this, which should be seen as an extension of Leo Mates' proposal. Such an initiative could well lead on to an "international marine a u t h o r i t y " as advocated by the Bow Group of the Conservative party in a recent publication. The IMA would start as the body to improve and lay down higher standards for safety at sea. Later it might develop other powers. Next, there could be a global consortium of long-distance fishermen to catch and cultivate fish for distribution to the world's population on a global basis. Already four countries catch half of all the fish, so it should not be difficult to create a world fishing consortium to "denationalise" fish. If organised regionally, it could tie in with existing fisheries Agreements, such as those for North-East and North-West Atlantic, etc., but the present defects of those Agreements would need to be remedied in the process. Fourthly, there could be an extended use of the Inter-governmental Oceanographic Commission, which, linked to industry and other non-governmental interests, might undertake projects of a global character in ocean space. It has been proposed by Ceylon that support should be given for effective centralised global supervision through, e.g., Global Reference Centres on waste disposal, on water quality monitoring, on marine biotoxins and in respect of safety standards. These Centres, operated, like Lloyds, by nongovernmental agencies, might well be part of the extension of activities of the IOC. The Earth Watch Monitoring System could be part of it too. 8O
81--84
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Fig. 1. Exploration blocks beyord the limits of national jurisdiction (200-m isobath), each ohivisable for exploration into up to 16 sub-divisions (see top line of grid for example). Drawn to scale.
As to mining the ocean floor, the Parliamentary Group has based its proposal on the c o m m o n heritage concept. Instead of the proposals by Britain and France for a grid system in the areas beyond the limits of national jurisdiction, allocated by a registering and licensing system, but policed by its national leaseholder, the Group believes that the registering and licensing authority should itself be operational. To use nation-states as the agents of enforcement would result in unremitting conflict between them. The main inspectorate and enforcement should come from the new maritime authority. In a world under surveillance from space satellites, the creation of a global system of controls should not be difficult. Senator Pell of Rhode Island has for long been persuaded that there should be a "SeaGuard" based on the methods and procedures of the U.S. Coastguard Service. There is nothing wrong with such a proposal; it is far more realistic than having policing by 120 different national police forces, each of them backed by umbrage-taking governments. The essential would be to build up the Sea-Guard as an inspectorate and enforcement agency of the non-governmental activities outlined above, to the point where it acquired sufficient confidence to be able to make use, where necessary, of national forces in an ancillary role. In a m e m o r a n d u m to the Foreign Office in March 1971, the Group made some observations about the dangers of extending national legal systems into ocean space. It pointed out that the British (and French) proposal (of 17.8.70 and A/AC 138/46 of 30.7.71) "is pot-luck or international bingo" {see Fig.l), since some blocks will be rich in resources while others will not. There is no guarantee that the needy country will get the rich block. The whole history of enclosure on land points in the opposite direction. Given t h a t resources are n o t likely to be known, the British and French proposals will n o t offer equality to states. The extension of state control over "common heritage" will lead to a confusing multiplicity of control, and in fact to a jurisdictional jungle, when it is remembered that a block for exploration purposes may be sub-divided into up to 16 sub-sections, each with a different national licensee. Much better for all licensees to operate under one c o m m o n international control. The argument that corporations or international companies have at present no recognised status in international law is a red herring: if this does not prevent them from taking blocks or licenses on the Continental Shelf, why should it prevent them from taking similar blocks or licenses from the international authority on the seabed? There is no reason why the authority should not incorporate as a term in any license to corporations or companies the body of regulations and recommended practices which will have to emerge, and punish for infractions by deprivation of license, fines, etc. In fact, it is likely that a system of inspec85
tion, control and jurisdiction by the proposed authority will be far more effective than that of many national governments who will surely apply for " b l o c k s " and license out to these very same operating companies. In short, we have no real guarantee that all applicant States will effectively control and supervise activities within the " b l o c k s " allocated to them. Companies applying for licenses can be vetted for adequacy of capital, expertise, etc., in a way which no State could be. Companies properly vetted will be likely to be more responsible as licensees than many States. If it is believed that, in the final analysis, one needs a " S t a t e " t o be held responsible for any serious damage to the environment, it can be pointed out that the large, adequately financed corporations can often be better defendants in any proceedings brought: they will probably have larger resources from which to pay damages; they will n o t be immune from execution; and they can in any event be compelled to insure from the outset of their license. The "arrangement for verifying that States comply with the Agreement" which, in HMG's paper, amounts to nothing more than " t h e right under clearly defined arrangements to inspect operations which were being carried o u t " and "States would have to retain the right to refuse inspection by individuals whom they regarded as unacceptable", is clearly unworkable, particularly when one considers that there could be between 5,000 and 7,000 blocks of 8,000 km e * in the Atlantic alone, and something between 25,000 and 30,000 over the whole seabed. How Afghanistan or Uganda can provide a control and enforcement system for, perhaps, 300 blocks scattered about the seabed, is n o t explained. Even the British Empire at its zenith was only just able to undertake that kind of c o m m i t m e n t on land. And how are governments to be ejected from their blocks after thirty years or so? A decision in favour of a national system of partition would clearly be irreversible since it is impossible to imagine that, once vested interests in specific areas have been established, these would ever be given up to an international authority. It is now for the politicians of land-locked and shelf-locked countries to insist on the protection of world c o m m u n i t y interests, and particularly in those areas which coastal states annexe or otherwise appropriate for their own benefit in the interim. The so-called 'patrimonial' sea of up to 200 miles, will, if accepted, mean that for the foreseeable future all areas capable of economic exploitation will be areas of national jurisdiction. The idea of the area beyond as the c o m m o n heritage of mankind becomes entirely aca* As suggested in t h e " N i x o n P r o p o s a l " . The D e p a r t m e n t o f Trade and I n d u s t y (U.K.) leases o u t blocks o f o n l y 2 0 0 - - 2 5 0 k m 2 in t h e N o r t h Sea, w h i c h w o u l d m e a n an even greater n u m b e r o f blocks.
86
demic. The creeping jurisdiction by coastal states will also lead to the exclusion, or obstruction, of scientific research. Similarly the prospect of wealth accumulating in the hands of international agencies for use in economic development of poorer nations, becomes an illusion. It is simply n o t true that the threat of over-fishing by Japan and the U.S.S.R. is the motivation behind the 200-mile economic zone movement. The real motivation is economic greed by a number of states well-placed geographically. Over-fishing will not be solved by a coastal-state monopoly, but only by agreed and supervised measures of conservation. There are many instances of destructive exploitation by coastal states (e.g. Icelandic destruction of herring stocks) and monopolistic claims will aggravate rather than cure this problem. A major extra-governmental initiative to manage the oceans could be a most helpful step in tackling our unprecedented planetary crisis. If taken, it would perhaps focus world-wide public opposition against the insidious creep of inter-state power politics into ocean space. It may also counteract the disturbing evidence of a "Nero S y n d r o m e " among national governments. We must make sure that Ambassador Pardo's fear of witnessing " t h e conference on the first partition of the sea in favour of coastal states" does not come true. Intoxication with accretion of anchovy catch is an inadequate basis for regulating the management of ocean space. The man who knows how to take over the property next door is n o t necessarily, or even likely to be, an example of administrative know-how for 5/7ths of the planet's surface. The idea that coastal states represent a large part of mankind, and therefore can best act for it, is highly specious. For instance, it is argued that they would be the best instrument for control of pollution, since they are responsible for so much of that pollution. But this would be employing the fox to guard the chickens: it merely provides nation-states with a license to pollute. To extend the jurisdiction of coastal states will mean that they will be plaintiff, judge and jury in their own zone and, unlike the land, the waters of that zone are about as mobile, in the words of Thor Heyerdahl, "as water in a boiling kettle". So everyone will be affected. The safety of this planet must n o t be left to geographically and administratively haphazard control by land-based organisations up to 200 miles away, many of them w i t h o u t any experience whatever of the problems with which they have to deal. According to Mr Bustamente of Ecuador (on July 20, 1973), " n o extraneous authority but the state's own legal will empower it to extend its jurisdiction to the adjacent sea over which it proclaimed sovereignty". He was followed by Mr Bakula of Peru, who "wished to enumerate what his country regarded as some of the ultimate aims of the reformulation of the law of the sea: first (our italics), the protection and exploitation of natural resources for the benefit of the coastal state; (secondly, the prohibition of 87
international coercion and of aggression or the threat of aggression against countries which were reclaiming their natural resources; etc"). The alms of coastal states are clear enough. Perhaps the only thought which may give them pause is that the number of "dis-advantaged" states either having no coast line, or being shelf-locked, or being zone-locked, i.e., at the mercy of the patrimonialists, could rise to 61, i.e., half the members of the United Nations. It has been estimated that the country which would acquire the greatest area by the 200 mile patrimonial sea proposal is the U . S . A . although it has argued against such a proposal. The only advocates at UN of the c o m m o n heritage of mankind as the real basis for ocean space appear to be Nepal and Singapore. Perhaps they happen to have world federalist spokesmen. Let us take c o m f o r t from the fact that t r u t h traditionally emanates from still small voices. Patrick Armstrong Parliamentary Group for World Government, House of Commons, London (Great Britain) (Accepted for publication January 15, 1974)
88