This paper is the second in the series of papers read by Justice Haleem during his tenure as Chief Justice of Pakistan, at the Twelfth Conference of the World Peace Through Law Center, West Berlin, Federal Republic of Germany, July 21-26, 1985
I am delighted to be with you this morning to benefit from your views in regard to certain current issues about the development of deep sea resources that are attracting the attention of international lawyers all over the world. My observations and references to this important phenomenon appear to be the outcome of diversity, complexity, and uncertainty of the law of the sea as it has been developing over the last decade. The subject itself has been expansive like its referent, the deep sea resources; but it has grown much vaster as the ranges of claims to the oceans have increased. The value of an exercise like this depends upon whether a consensus among the nations of the world would be forthcoming about the exploration and exploration of ocean resources. A clear idea about what future path will be taken by the law of the sea in this sphere makes it easier to put the present situation into perspective. A balanced view of the law of the sea can help in promoting an understanding that development of marine resources must focus on several related concerns at international level. My examination of a topic like this may convince that there are many possible approaches to the solution of this problem. Consequently, I thought it desirable to exchange perspectives. One may appreciate that the conditions of interdependence can work towards the better securing and clarification of common interest in deep sea resources. Hoping that the future order of the oceans would open up new dimensions of cooperation and enlightenment, this analysis of the development of deep sea resources may add a viewpoint, among others, to probe further into the dynamics of international relations pertaining to oceans.
With the growing importance of deep sea resources, there has been a virtual stampede to the ocean in search of oil, gas, hydro-carbons, fish and manganese nodules. The major issues in the development of these resources are concerned with territorial and jurisdictional claims, fisheries management, shipping and navigational regimes, international straits regimes, oil and gas exploitation, harnessing of thermal energy, environmental pollution, seabed mining scientific research, transfer of technology, and settlement of international disputes. The pattern of inter-state relations requires that states cooperate in the exploration and exploitation of deep sea-bed resources. The requisite cooperation can be attained through bilateral treaties.
Four issues have commanded the attention of experts. First, relates to the financing of the proposed mining operation. The second key issue is that of access to the deep sea-bed for mining operations. The third issue has to do with voting arrangements within the international sea-bed authority and the Enterprise. The fourth issue is concerned with revenue sharing from sea-bed exploitation.
Two opposing viewpoints emerged in a concrete shape in an attempt to develop a new regime with respect to oceans at the third United Nations conference on the
Law of the sea. (UNCLOS I I I). The developed areas sought to establish a legal regime that would enable them to explore and recover the mineral deposits within a free market system. This view was shared by the United States of America and 15 other developed nationals which maintained that there existed a right under international law to engage in deep sea-bed mining as a freedom of the high seas. The other view was projected by 130 nationals including the 119 nations of the third world. It was meant to establish that the manganese nodules of the sea-bed were the common heritage of mankind and that the wealth from their exploitation should be distributed equitably among all the nations of the world. The developing countries argued that their objectives could be met be met by using developing country nationals on the managerial, research and technical staffs and by the promotion of programmes for the transfer of technology. The developing countries had expressed the need to reduce the economic gap between the developed and the developing countries. Developing country governments sought implementation of the new international Economic Order through the medium of United Nations involvement in ocean mining.
Among the developed countries, the United States, in particular, expressed its concern that it would be asked to finance ( in proportion to its large contribution to the UN budget ) the activities of a supra-national mining company called the Enterprise that would compete with American mining interests and that could eventually monopolize production of sea-bed minerals; that United States companies would be obliged to sell their technology to the Enterprise, possibly a security threat in some cases; that the convention insulates land-based producers from competition with sea-bed mining; that the authority could discriminate against United States applicants in the selection of contractors; that in the council of the authority the soviet Union and its allies have three guaranteed seats, but the United States must compete with its allies for any representation; and that the convention imposes revenue sharing obligations on sea-bed mining corporations which would significantly increase the costs of sea-bed mining. On behalf of the United States, it was further maintained that initiatives taken by a country beyond the limits of the national jurisdiction could be limited only by provisions of international law. With regard to sea-bed mining, there did not exist, according to the U.S. Government, any restraints other than those which applied generally to the freedom of the high seas, including the provisions of claims of sovereignty, the exclusive jurisdiction of States over their vessels and their nationals, and the duty to have reasonable regard for other users of the high seas. If States were to subscribe to a convention establishing an international authority entrusted with overseeing the sea-bed mining, they would then be subject to additional restraints, since they would have voluntarily accepted the alteration of their freedoms in the interest of establishing a stable legal regime to regulate the exploitation of ocean resources. The United States did not, however, accept the suggestion that, without its consent, other States would be able, by resolutions or statements, to deny or alter its right under inter-national law.
The general assembly declared that the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction as well as the resources of the area, were the common heritage of mankind. The assembly asserted that the Area would not be subject to appropriation by any means by States or persons, natural or juridical, and no state would claim or exercise sovereignty or sovereign rights over any part thereof. It was further declared that no state or person, natural or juridical, would, claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established. The principles envisaged that all activities regarding the exploration and exploitation of the resources of the area and other related activities would be governed by the international regime to be established. It was agreed that the area would be open to use exclusively for peaceful purposes by all states whether coastal or land-locked, without discrimination.
On the basis of the principles enunciated by the general assembly in the declaration, an international regime applying to the area its resources would be established by an international treaty of a universal character. The regime would, inter provide for the orderly and safe development and rational management of the area and its resources and for expanding opportunities in the use thereof and ensure the equitable sharing by states in the benefits derived, there from, taking into particular consideration the interests and needs of the developing countries. In order to attain this end, the states were advised to promote international cooperation in scientific research exclusively for peaceful purposes. With respect to activities in the area, states were exposed to the suggestion to take appropriate measures for implementation of international rules, and procedures for prevention of pollution and contamination, and other hazards to the marine environment, and for protection and conservation of the natural resources of the area and prevention of damage to the flora and fauna of the marine environment.
The developing countries took the position that the General Principles Resolution (of December 15, 1970) whereby the sea-bed beyond the limits of the national jurisdiction was declared the common heritage of mankind, was binding on all those who voted for it. The United States, however, took the stand that the terms of Resolution made no change in existing law unless and until a governing treaty came into force.
Dissatisfaction with the regime for the deep sea-bed led the United States, which continues to support an international sea-bed regime in principle, to vote against the adoption of the 1982 convention and to declare that it will not become a signatory. The United States suggested that a mini-treaty regarding deep sea-bed mining omitting the controversial provisions of the convention be made. After nearly seventeen years of negotiations the world community has arrived, at the Third United Nations Conference on the law of the Sea (UNCLOS 111), near consensus on the following issues: (1) that an international sea-bed authority be created, (11) that it should be composed of an Assembly (for general policy supervision) and a council as an executive arm for management as well as a secretariat and an Enterprise as the business organ of the authority with adequate autonomy and personality of its own. It was also suggested that a law of the sea tribunal be created to take a special place in the category of international courts to be surpassed by none except the international court of justice.
Keeping in view the progress made so far in this sphere, further improvements will have to be made if the development of deep-sea resources is to be placed on sound footing. The present draft regime should be improved, and some way need be found to continue negotiations towards that end. Cooperative regional arrangements capable of serving the needs of several states may be initiated. A balanced ocean development is essential to respond to the problems produced by scientific and technological growth. Interdependence and shared human resources are pointing the way to organized procedures of international management. Most forms of pollution affecting the ocean environment are transnational in scope and must be treated within a modern system of international law. It would be desirable to consider the drafting of treaties on the protection of the marine environment. A justification exists for the application of global sharing. Moreover, it is essential that the restrictive practices of multi-nationals be curtailed, technological capability be encouraged and provision of appropriate technology be made.
It is essential to reach an agreement on the system of exploitation of the area. Agreement is desirable on the type of basic terms and conditions of exploration and exploitation. An agreement is equally desirable concerning the degree of control which the international sea-bed authority can be permitted to have over all activities in the area.
It may be said that national planning in the direction of increasing man’s dependence on the sea requires enquiry into the social sciences. The protection of common interests calls for continued appraisal and study of the process of interaction, claim, and decision involving the ocean. The creation of a global ocean management organization (GLOMO) might serve as a model for system verifying multi-lateral disarmament agreements and the monitoring of crises. The GLOMO would coordinate the management and purchase of information from existing ocean surveillance networks.
The extensions of maritime jurisdiction can cross-cut ecological boundaries. The addition of small states may result in the law of the sea being negotiated and developed in a more realistic context. Law of the sea issues need be given a high priority in national decision making. The development of a parallel system whereby the exploitation of the mineral resources of the ocean-bed beyond national jurisdiction can be carried out simultaneously by the industrial states and companies on the one hand and by the sea-bed enterprise on behalf of the developing countries on the other hand, is the need of the hour. The transitional obligation of mutual restraint should be forthcoming even as the over-lapping claims emerge. The prohibition of unilateral actions may be intrinsically connected with the duty to negotiate in good faith with regard to provisional arrangements. There appears to be a need for ruling by the international court of justice whether the unilateral licensing of deep sea mining is permissible under international law. Some king of accommodation between U.S.A. and developing countries will have to be developed.