No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 643 which gave rise to the 1945 Truman Proclamation and, again, the institutionalization of the national claim made therein.110 The Canadian claim would appear to be an a fortiori situation for propriety with due regard to the fact that it is an interim measure to protect natural resources, rather than a claim to permit their exploitation, as was the Truman Proclamation.111 Even within the context of our own country's federal-state relationship, examples exist. The natural nexus between California and offshore areas located between the mainland and the Channel Islands, such as the San Pedro and Santa Barbara Channels, is direct and observable, notwithstanding the fact that they are in international waters overlying lands under federal jurisdiction.112 The established régimes of the ocean, the territorial sea, the "freedom of the seas" to navigate, fish and fly and the more recent 110 The analogy to the 1945 Truman Proclamation has not been overlooked by Canada, see L. H. J. Legault (Legal Division, Canadian Department of External Affairs), The Freedom of the Seas: A License to Pollute, Int'l L. Ass'n. [Canada] Symposium, September 8-11, 1970 (inadequacy of existing laws discussed); 114 Canadian House of Commons Debates, April 16, 1970, No. 103, at pp. 5944, 5945; n. 1 supra, Canadian note of April 16, 1970, op. cit., n. 36. Cf. Bilder, supra, n. 37 at p. 26. 111 See Krueger, supra, n. 2 at pp. 464 et seq.; n. 36, supra. 112 At its December 4-5, 1970 meeting, the California Advisory Commission on Marine and Coastal Resources referred to proposed federal coastal zone management legislation, and noted that: "the [California] Marine Resources Conservation and Development Act of 1967 requires that the Comprehensive Ocean Area Plan ("COAP") encompass areas between the Channel Islands and the mainland which have a functional interrelationship to them, such as the Santa Barbara Channel and San Pedro...." The California Commission then recommended that: "federal coastal zone management legislation should authorise the inclusion in the defined coastal zone of any lands under federal jurisdiction and control where the administering federal agency determines them to have a functional interrelationship from an economic, social or geographic standpoint with lands within the territorial sea. Any such inclusion, however, should not convey, release or diminish any rights reserved or possessed by the Federal Government under the Submerged Lands Act or the Outer Continental Shelf Lands Act and should be subject to reasonable conditions imposed to protect the national interest in defense and national interest in defense and national security." Proceedings, Dec. 4-5, 1970 Mtg. See House Committee on Merchant Marine and Fisheries, Subcom. on Oceanog., Hrgs., "Coastal Zone Management Conference", H.R. Rep. No. 91-14 (Oct. 28-29, 1969), at pp. 195 et seq.; Senate Committee on Commerce, Subcom. on Oceanog., Hrgs., "Federal Oceanic and Atmospheric Organization", 91st Cong. (Mar., Apr. and May, 1970), at pp. 1260 et seq. 644 MCGILL LAW JOURNAL [Vol. 17 doctrine of the continental shelf, will also have to be given recognition in any new proposed global institution. This need will exist not because of the frequently expressed fealty which the world community owes to many of these rules because of their long-standing and general observance.113 They are rules and they can be changed - the evolution of international law is replete with examples of this mutability.114 The need for recognition will rather arise from the political reality that there is wide-spread and strong national support for these régimes. In the case of the territorial sea, for example, there is, again, present the functional nexus between the coastal state and the offshore area for a variety of purposes.115 The "freedom of the seas" evolved from the need of the powers of the world to freely travel the oceans, exploit their resources and contest one another there.116 The great powers still want these rights and any workable global institution for the ocean must give recognition to them. Such recognition does not, however, mean that these rights and the basis therefor should not be critically examined in the context of the present-day needs and goals of the world community and appropriately tempered. It is a fact and one well known to the developing countries of the world that the "freedom of the seas" and at least initially, the doctrine of the continental shelf, were régimes created by the developed countries and principally used by them for their convenience and benefit.117 The independent point of view of the developing countries has and should continue to serve a therapeutic purpose in achieving adjustments in established international régimes that serve to reduce the possibility of international conflicts.118 113 See supra n. 60. See generally L. Oppenheim, International Law, A Treatise, at pp. 24-27, 581-587, H. Lauterpacht ed. (8th ed., 1955). 114 See Fulton, op. cit., n. 95; Report Special Committee on Outer Continental Shelf, supra n. 52. 115 See United States v. California, 332 U.S. 19 (1947), at p. 32; Fulton, op. cit., n. 95, at pp. 576 et seq; McDougal and Burke, op. cit., n. 110, at pp. 176-179; Judgment of The Anglo-Norwegian Fisheries Case [1951] I.C.J. Rep. 116. 116 Report on Outer Continental Shelf, op. cit., n. 52, at pp. 30-33; L. Oppenheim, op. cit., n. 113, at pp. 593-594; see Opening Statement of Arthur Dean (U. S. Representative) at Geneva Law of the Sea Conference, Mar. 11, 1958: 38 Dept. of State Bull. 574, at pp. 576-579; see generally, R. Palmer, A History of the Modern World (2nd ed., 1962), at pp. 396, 512, 674-675. See also Franklin, op. cit., n. 107, at pp. 115 et seq.; McDougall and Burke, op. cit., n. 110, at p. 561. 117 U.N. First Committee Prov. Summ. Rec., Nov. 6 - Dec. 16, 1970, passim; see also Legault, op. cit., n. 110. 118 See supra at n. 84. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 645 It is quite apparent that national security requirements are important considerations for the great powers, particularly the United States and the Soviet Union. The ability to freely travel the world's oceans and its numerous straits by ship, submarine and air is of obvious importance to them.119 In evaluating the priority that national security interests should receive in establishing a management system for the world's oceans, however, the long-range significance of confirming an absolute right of free transit should be weighed in terms of its necessity and worth and its cost as reflected by any concessions with respect to other relevant national interests that may be involved. An expansion of the accepted limits of territorial sea to 12 miles as proposed by the United States 120 would close many important straits now regarded in part as high seas and the U.S. concern for the maintenance of free transit for military and non-military purposes through them is valid. A right of "innocent passage", as the same now exists with respect to the territorial sea, would not be 119 See Statement of Robert A. Frosch, Assistant Secretary of the Navy for Research and Development, Hrgs. Before Subcom. on Ocean Space of the Com. on For. Relations, U.S. Senate 91st Cong., 1st Sess., July 24, 25, 28 and 30, 1969, “Activities of Nations in Ocean Space", in which the following comment is made at pp. 30-31: "Beyond that, our greatest concern with regard to legal problems in the seas, and here it is not only a Navy concern but an Air Force concern and a DOD concern, has to do with the problem of the width of the territorial sea and the associated problems of passage and over-flight of international straits. This is an area in which there are some evidences of beginning encroachement by practice, and on area of considerable concern because such encroachment would change the entire pattern not only of overflights and passage for military vessels but the entire pattern of commercial use of the seas, and take it away from a pattern of free use, whether that use is established by clear international water definitions or by historical precedent that make certain straits international in a sense of passage. From a defense point of view, we are interested in seeing the maximum of the seas in this respect both because we believe it is the best for U. S. national security interests in the broadest sense and because it is in keeping with a long tradition of freedom of the seas which, on the whole, has been generally consistent with peacekeeping efforts." See also Rept. of Com. on Deep-Sea Mining of the Int'l L. Ass'n, (Australian Br., 1970), at pp. 19-20. Cf. Statement of Luke W. Finlay, representing the American Petroleum Institute in Hrgs. of Subcomm. on Minerals, Materials and Fuels of Sen. Comm. on Interior and Insular Affairs, Sept. 23, 1970, Statement Senator Lee-Metcalf, 117 Cong. Rec. S. 2814, S. 2818 (92nd Cong., 1st Sess., 1971). 120 See supra n. 38. 646 MCGILL LAW JOURNAL [Vol. 17 sufficient.121 It is highly questionable, however, whether this concern should be extended to internationalizing offshore coastal areas beyond the territorial sea that could logically be the subject of a national coastal contiguous zone for resource purposes, if a right of free transit through it is assured. This concept of internationalization, it seems clear, was the intent of the U.S. Draft Seabeds Convention in proposing the de-nationalization of large portions of the continental shelf and establishing the International Seabed Area, defined as "all areas of the seabed and subsoil of the high seas seaward of the 200 meter isobath adjacent to the coast of continents and islands".122 The Draft Convention provides that the International Seabed Area "shall be open to use by all States, without discrimination, except as otherwise provided in this Convention" 123 and further provides that the "[e]xploration and exploitation of the natural resources of the International Seabed Area must not result in any unjustifiable interference with other activities in the marine environment".124 Free transit through the entirety of the International Seabed Area, including the proposed International Trusteeship Area,125 would thus be assured. Further, it should be observed that military uses frequently do not follow defined orders. The Convention on the Continental Shelf does not presently authorize uses of the seabed for military purposes and a negative inference can be drawn in this regard.126 Notwithstanding, however, it seems certain that the United States and many of the other developed powers use their continental shelves, indeed the continental shelves of each other, for various forms of military use. Whether this is a "right" or simply a matter of realpolitik is not of particular significance. When national security 121 Under the Convention on the Territorial Sea and the Contiguous Zone neither aircraft nor submerged submarines have a right of innocent passage and passage is deemed "innocent" only "so long as it is not prejudicial to the peace, good order or security of the coastal State". U.N. Doc. A/CONF. 13/L. 52, Art. 14, para. 4. There is, therefore, a subjective quality to the definition. See Statement by John R. Stevenson to Subcom. II of U.N. Seabeds Committee dated Aug. 3, 1971, infra, Part IV at p. 3. 122 Art. 1, para. 2. 123 Art. 3. 124 Art. 8. 125 Art. 26. 126 A valid case can be made, however, that military installations are permitted use of the continental shelf by reason of the coastal state's inherent right of self-defense. See Franklin, op. cit., n. 107, at pp. 65-67; McDougal and Burke, op. cit., n. 110, at pp. 718-720. Cf. The Law of the Sea Crisis, infra, n. 272. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 647 has required it there have been U-2 flights, submarines in all types of territorial waters and probably other unknown but equally exotic excursions by the military. By the same token it is questionable whether rights confirmed for "security" purposes will not be subject to unilateral withdrawal by the various states involved, if their own national interests indicate that it is desirable or expedient to do so at a future date. There is no reason that rights of this nature could not fall into question as quickly as did the provisions of the Geneva Conventions of 1958. In evaluating national interests it should also be borne in mind that the developing countries (and certainly more than a few of the developed) of the world quite understandably are much more interested in achieving economic growth and, consequently, in the exploitation and development of resources, rather than in concerns of environmental quality and multiple use.127 It is very clear from international discussions on the subject that the developing countries regard, and quite reasonably regard, the current concern over environmental quality as one that is relevant principally to affluent countries and peoples who can afford what is essentially a new luxury in an industrial society.128 It would be interesting to see how many countries of the world, and even states of the United States, would accept Southern California's extensive offshore oil reserves with their inherent threat of pollution for the economic benefit that they would bring.129 Lesser developed countries and peoples would like to first enjoy the benefits of industrialization and technology before they begin to control its deleterious aspects. There has been a great deal of serious thought directed toward the issue of a régime for the oceans that would be workable attractive to both developing and developed nations, to coastal as well as land and coast-locked.130 There seems, however, to have been little done (or perhaps more accurately which could be done) to quantify the benefits which a given nation might receive under a particular form of international régime, such as that proposed 127 See supra nn. 91, 104. 128 See U.N. Press Releases on Preparatory Conference on Human Environment, HE.1/Rev.1 (Mar. 6, 1970) to HE./16 (Mar. 20, 1970), passim. 129 Pollution from offshore oil drilling appears in an overall environmental context to have a quite limited impact. See Krueger, International and National Regulation of Pollution from Offshore Oil Production, (1970), 7 San Diego L. Rev. 541, 558. 130 See supra nn. 9 et seq. |