648 MCGILL LAW JOURNAL [Vol. 17 by the United States, as against those which a nation might receive under the existing or another alternate régime. It is obvious from the unilateral claims made to date that coastal nations feel that their best national interests lie in a broad area of national jurisdiction.131 It is equally apparent that the advantages which coastal and non-coastal nations would receive from an international régime of broad dimensions, such as that proposed by the United States, are nebulous and uncertain. The proposed International Seabed Resource Authority is required to use revenues from the exploration of the seabed "for the benefit of all mankind, particularly to promote the economic advancement of developing States Parties to this Convention, irrespective of their geographic location".132 It is clear however, that this fund is to be composed of net revenue over and above administrative and operating costs of the Authority which could be very substantial 133 and further subject to the qualification that an indeterminate portion of the revenue is required to be used "to promote" resource exploitation, environmental research, the development of marine resource knowledge and technical assistance to contracting parties.134 With due regard to this it is virtually impossible to assure any coastal nation that it will receive more under the proposed régime than it will from whatever zone of national jurisdiction it can legitimately claim. Further, it is only on principle that a land-locked nation can be assured that it will receive more from the international régime than it would otherwise. The dynamics of the situation are becoming quite clear. If a developing coastal nation is asked to give up a potentially oil-laden continental shelf or a valuable coastal fishery for an unspecified share of an uncertain portion of undetermined revenue from (in large part) undiscovered resources, as it is essentially asked by the U.S. Draft Convention, predictably it will chose to claim and manage the resources involved, whether pursuant to an international régime providing for a broad contiguous zone or by unilateral declaration.135 The fact that an international régime which would accommodate the interests of the coastal states might be defeated by land and shelf-locked states would be irrelevant. Such 131 See supra nn. 85-93. 132 Art. 5, para. 1. 133 App. D, paras. 1.1, 3.1. 134 Art. 5, para. 2. 135 See supra nn. 85-93, 104. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 649 states may have a "blocking third",186 but they do not constitute the majority which is necessary to establish a comprehensive régime for the oceans. If the international régime is not structured so as to accommodate the interests of the coastal states, they predictably will refuse to accept it and the land-locked states will lose the opportunity to establish rights of access to the oceans which they have long and ardently sought.' 137 In light of the very dominant pattern of national self-interest that has emerged among many of the coastal nations it is difficult in the extreme to perceive of consensus being established on an international régime that does not give valid recognition to it. It is further difficult in the extreme to perceive of a minimization of the confrontations, conflicts and environmental and resource mismanagement that has characterized international oceans policy in the past without such a consensus. 3. International Organization The powers and composition of the international agency to be given responsibility to administer the oceans management plan should depend upon the extent of the lands, waters, and resources over which it will have jurisdiction and its duties with respect to them. If it were to be given management jurisdiction over all resources beyond a narrowly defined continental shelf, it would need broad powers and a comprehensive administrative framework.138 If it were to be given management jurisdiction only over resources beyond a broadly defined continental shelf with limited regulation functions over activities in areas under national jurisdiction, it would seem that it could operate adequately with limited powers and a sparse administrative structure.139 With due regard to the strong national interest of many coastal states in the management of coastal and certain of the deep sea 136 See Ratiner, United States Oceans Policy: An Analysis, op. cit., n. 37, at p. 240 (there are more than 40 such nations). 137 See supra n. 81; Rep. Sec. Gen. on Study of the Question of Free Access to the Sea of Land-locked Countries and of the Special Problems of Landlocked Countries Relating to the Exploration and Exploitation of the Resources of the Sea-Bed and the Ocean Floor Beyond Limits of National Jurisdiction, A/AC.138/37, June 11, 1971. 138 See Report of U.N. Secretary-General, Study on International Machinery, U.N. Doc. A/AC.138/23 (May 26, 1970) at pp. 28 et seq. ("International Machinery Having Comprehensive Powers"). 139 Ibid., at p. 23 ("International Machinery For Registration and Licensing"). 650 MCGILL LAW JOURNAL [Vol. 17 resources and the relative lack of incentive to abandon them in the proposals that have been offered to date, the latter situation seems more likely. Additionally, the caution with which new international structures are regarded makes it desirable that the one proposed for the oceans be sparsely structured, taking maximum advantage of existing institutions and agencies,140 and reserve for future action issues not directly relevant to the plan of regulation.141 The agency should be sufficiently complete to intelligently manage and allocate resources over which it has jurisdiction, supervise their development and multiple use, administer all other aspects of the plan of regulation 142 and be sufficiently flexible to permit restructuring if and as it is given further responsibilities but not more. Certainly the oceans are "one world" in an environmental and resource sense, but politically we have not achieved this global unity. The proposed organization should reflect this reality. 4. International v. National Regulation In evaluating any proposed global management plan for the oceans it does not serve any purpose to think in terms of "creeping jurisdiction" by either national or international agencies.143 It has 140 See Reports of the National Petroleum Council (N.P.C.) and the American Bar Association (A.B.A.), op. cit., n. 97. 141 See Part II B 3, infra, n. 214. 142 The desire to minimize the international controls involved in the new régimes have led some to recommend a registry which could receive and record claims, as opposed to a licensing authority which would allocate them. See A.B.A. and N.P.C. reports, op. cit., n. 97. It is very apparent, however, that even those opposed in principle to a licensing authority want to achieve the ends which can be accomplished only by an agency with substantial decisionmaking powers. A consensus appears to have developed that at the very least a licensing authority of some type will be necessary. This is the clear import of the Nixon proposal and the U.S. Draft Resolution, and the suggestion of the recently approved U.N. Sea-Bed principles. See also statement of Ambassador Phillips, U.S. Ambassador to the United Nations, made on October 31, 1969, that "[b]ecause mere registry of claims would probably only contribute to a confused race, it is our view that an international regime should include an international registry of claims governed by appropriate procedures". See Press Release USUN-141(69). As indicated in the Secretary-General's report, there is little reason to generically distinguish between a registry and a licensing authority: op. cit., n. 138, at p. 24. 143 Statement of John R. Stevenson, The Legal Adviser to the U.S. Dept. of States regarding the Draft Convention, Aug. 3, 1970, para. 1; Statement of Robert A. Frosch, supra n. 119; Statement John R. Stevenson to Subcon. II, U.N. Seabeds Com., Aug. 3, 1971, p. 5 ("historic tendencies to assert more and more types of control within fixed zones of special purpose jurisdiction"). No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 651 become popular to use this term to describe the purported process by which a coastal state's jurisdiction for limited purposes (e.g., the development of the continental shelf for natural resources) will gradually and inexorably lead to regulations for all purposes. (i.e., territorial sea). It follows from acceptance of this theorem that the "freedom of the seas" is threatened by the maintenance of a broad continental shelf and that the shelf consequently should be reduced or "internationalized".144 This may or may not be a desirable result, but it should not flow from this line of reasoning. The evolution of international law regarding the oceans has had a direct and it would seem necessary correlation with the development of technology and the need for exploitation.145 Further, and more importantly, the growth in the world's population, particularly the portions directly affected by the oceans, the growth in the uses of the oceans and their resources and, finally, the conflicts between those uses and the environmental impingements resulting from them require regulation, and regu lation in growing amounts, if chaos is to be avoided.146 If ocean regulation is provided by a coastal nation regarding a use, interest or activity with which it has a functional nexus and which is not the subject of international agreement, it would seem an entirely appropriate act, even a commendable one where it has a beneficial effect from a resource or environmental standpoint. An example of this would be the Canadian Arctic Waters Pollution Prevention 144 The Marine Sciences Commission in its report, Our Nation and The Sea, accepted the validity of the theorem without qualification and came to a gross and tangled set of conclusions: "Such developments [Latin American 200 mile territorial sea claims] are obviously contrary to traditional U.S. Policy to limit national claims to the sea in the interest of the maximum freedom essential to the multiple uses, including military uses, which the United States makes of the oceans. National security and world peace are best served by the narrowest possible definition of the continental shelf for purposes of mineral resources development." (Emphasis added). Ibid., at p. 145. Others beside the author have questioned the rationality of the statement and the thought processes through which it was reached. See Burke, Law, Science, and the Ocean, (1970), 3 Nat. Res. Lawyer 195, at p. 217. 145 See Resources of the Sea, Part One: Mineral Resources of the Sea Bevond the Continental Shelf, Report of the United Nations' Secretary-General to the U.N. Economic and Social Council, U.N. Doc. E/4449/Add. 1, (Feb. 19, 1968), at pp. 14-17; Krueger, op. cit., n. 2 at p. 452. 146 A review of the various developments, interests and pressures renders this statement rather axiomatic. See Part II Al, supra n. 94; Our Nation and The Sea, passim. 652 MCGILL LAW JOURNAL [Vol. 17 Act.147 If, on the other hand, the world community establishes regulations for uses, interests or activities which effectively and logically preempt regulation by the coastal states or are outside the accepted orbit of interest of the coastal states, this should be equally acceptable if, again, the regulations achieve a beneficial result. An example of this would be the regulation of areas beyond limits of national jurisdiction by an international agency, such as the proposed International Seabed Authority.148 The point is, of course, that both national and international regulation of the world's oceans are proper depending upon the circumstances and that it serves little to speak in terms of "creeping jurisdiction". It is interesting to observe that it was likely, if not intended, that the International Seabed Authority proposed to be created by the August, 1970 United States Draft Convention would have or would come to have residual ("creeping"?) regulatory authority for all purposes over the continental margins, notwithstanding the coastal state being given limited "trusteeship" powers.149 Lastly, it should be noted that the theorem of "creeping jurisdiction", which was developed by the United States Department of Defense,150 does not appear to be supported by historical fact. The historical fact is that successively greater national claims in offshore areas usually have not risen from internationally agreed régimes for national action, but in the absence of them. The case most frequently cited by the proponents of the theorem is that of Peru in which it successively established a 200 mile fishing conservation zone (1947), a 200 mile petroleum concession area (1952), a 200 mile area of exclusive sovereignty (1952), a 200 mile coastal air space zone (1965) and finally a 200 mile area of "Dominio" (1969).151 This course of conduct, however, was not because of an internationally agreed régime permitting any of the national acts, but in the total absence of them. A more current example is the Canadian Arctic Waters Pollution Prevention Act in which an express premise for the national claim asserted was that there was no international agreed régime on the subject.152 The 147 See supra, nn. 35-37, 109-112. 148 See Part II B4, infra n. 231. 149 See supra n. 40. 150 See supra n. 119; Loring, supra n. 91, at pp. 428-431. See also Ratiner, supra n. 37, passim. 151 Loring, supra n. 91, at p. 430. 152 See supra n. 36. From time to time there seems to be recognition that the absence of a comprehensive regime is the cause for gradually expanding |