678 MCGILL LAW JOURNAL [Vol. 17 The proposed national contiguous zone could initially be made applicable only to seabed resources and coastal fisheries,268 but in the future hopefully the rights of the coastal state would also be extended to other uses, such as artificial islands.269 The territorial sea could be established at 12 miles and rights of free transit guaranteed through designated international straits and national contiguous zones.270 The right of free transit should, however, be subject to reasonable regulation by the coastal state for purposes of environmental and resource protection.271 This might at times result in some impingement of military and national security values of developed nations.272 268 See supra, nn. 241a et seq. 271 See supra, nn. 211 et seq. 272 Malta has recommended a slightly modified right of innocent passage in "national ocean space". See Draft Ocean Space Treaty, supra, n. 93, art. 47; Pardo, supra, n. 93 at pp. 50 et seq.; cf. nn. 121 et seq. The Senatorial critics of the United States "free transit" proposal fear that it will in the short run require a trade-off of national interest in deep sea mining and in the long term be unobtainable. See The Law of the Sea Crisis, supra, n. 93. At its twenty-sixth (1971) session the United Nations General Assembly adopted a resolution entitled "Declaration of the Indian Ocean as a zone of peace" in which it took note of "recent developments that portend the extension of the arms race into the Indian Ocean area, thereby posing a serious threat to the maintenance of such conditions in the area" and concluded that "the establishment of a zone of peace in an extensive geographical area in one region could have a beneficial influence on the establishment of permanent universal peace based on equal rights and justice for all, in accordance with the purposes and principles of the Charter of the United Nations". U.N. Doc. A/RES/2832 (XXVI) (Jan. 19, 1972). The resolution then declared the Indian Ocean to be a "zone of peace" and called "upon the littoral and hinterland States of the Indian Ocean, the permanent members of the Security Council and other major maritime users of the Indian Ocean... to enter into consultations with a view to the implementation of this Declaration and such action as may be necessary to ensure that: [inter alia] "(a) Warships and military aircraft may not use the Indian Ocean for any threat or use of force against the sovereignty, territorial integrity and independence of any littoral or hinterland State of the Indian Ocean in contravention of the purpose and principles of the Charter of the United Nations; "(b) Subject to the foregoing and to the norms and principles of international law, the right to free and unimpeded use of the zone by the vessels of all nations is unaffected." Ibid. [Emphasis added.] This resolution which was approved by the First Committee 50 to none with 49 abstentions, the abstentions consisting of the United States, the Soviet 85-197 O-73-29 No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 679 The interest of coastal states in protecting offshore fish stocks in which they have a direct interest could also be recognized and further support created by provisions giving the coastal state preferential rights in them under terms which would encourage regional conservation measures. A Convention on Fishing and Conservation of the Living Resources of the High Seas similar to that adopted in Geneva in 1958, but "with teeth" should attract a great deal of support.273 It would also be appropriate to give the proposed international agency powers to manage and protect fishery stocks in areas beyond limits of national jurisdiction.274 Comprehensive national and international management powers could begin to establish a concept of rationality in the protection and allocation of living resources of the oceans.275 The régime for the international zone should incorporate the objectives set forth in the December, 1970 U.N. resolution and others identified above,276 and could follow any one of a number of suggested organizational structures. A feasible course, and one which this writer favors, is the establishment of a relatively sparse Union and their normal voting associates, shows quite clearly the very cautious attitude which many of the developing countries have toward the military or "security" interests of the great powers. Rep. of U.N. 1st Com. U.N. Doc. A/8584 (Dec. 14, 1971), p. 3. See also Statement of People's Republic of China, New York Times, infra, n. 342. Cf. infra, nn. 285-286, 305, 313. 273 Convention on Fishing and Conservation of the Living Resources of the High Seas, supra, n. 211, was also adopted at the 1958 U.N. Conference on the Law of the Sea and became effective in 1966 after being ratified by 25 nations. The Convention authorizes conservation measures by nations for "any stock of fish or other marine resources in any area of the high sea adjacent to its territorial sea". Id., art. 7, para. 1. Few of the great fishing powers have ratified the Convention and it has distinctly failed to achieve its conservation purpose. See Crutchfield, The Convention on Fishing and the Living Resources of the High Seas, 1 Nat. Res. Lawyer (No. 2) 114, at pp. 119 et seq.; 1 Nossaman OCS Study § 1.4. Cf. infra, nn. 283 et seq. 274 See supra, n. 214 et seq. 275 There is no reason that fish stocks either in contiguous zones in which the coastal states have a preferred interest or in the area beyond cannot be allocated on a pre-determined basis, either competitively or non-competitively, so as to maintain their maximum sustainable yield. Crutchfield supra, n. 273 at p. 122 et seq. The Marine Sciences Commission made recommendations consistent with this concept. See Our Nation and the Sea, 92-93; Krueger supra, n. 167 at p. 803. It is noteworthy that the Draft Convention contains no provision for the allocation or conservation of living resources except with respect to those of the seabed. See arts. 22, 27, para. 2h; supra, nn. 214 et seq. Cf. infra, nn. 283 et seq. 276 See supra, nn. 158 et seq. 680 MCGILL LAW JOURNAL [Vol. 17 organization with well-defined responsibilities which makes the maximum use of existing national and international agencies and institutions.277 The financial assistance for the international agency "for international community purposes, particularly economic assistance to developing countries", identified in the Nixon proposal, could be supplied by earmarking in the Convention a portion of the revenue received by the coastal state from seaward portions of their areas of national jurisdiction. With a 2,500 meter/200 mile format, it would seem reasonable to require such payments as to all areas beyond 200 meters or 50 miles, whichever is further.278 The international agency should be required in its operations to give full consideration to all uses, values and resources of the oceans in its policy determinations.279 Even in recent years, it has been unfashionable in some circles to speak of the need for the revision of the Geneva Conventions, much less the establishment of an international régime for the deeps.280 In the past few years, however, we have moved toward a national and international understanding of the issues and problems involved which should lead us in the next five years to some rational and acceptable solutions to the major problems involved. If we do, it will provide sound evidence of the worth and viability of the United Nations. It is fitting that the first tangible steps toward this accomplishment occurred on its 25th anniversary. III. Conclusion Those in the U.S. Government who have supported the concept of free transit incorporated in the U.S. Draft Convention have been criticized, and largely unfairly criticized, as "nautical hawks" 281 The 277 See supra, nn. 138 et seq., 231 et seq. 278 Cf. the Marine Sciences Recommendation regarding its "intermediate zone", Our Nation and The Sea, pp. 145-151 (1969); the Nixon proposal, supra, n. 37. 279 See supra, nn. 182, 214 et seq.; 1 Nossaman OCS Study §§12.1 - 12.2; Krueger supra, n. 167 at p. 808. 280 See supra, n. 23. 281 In 117 Cong. Rec. March 10, 1971, Senator Metcalf is quoted at p. S2815 as follows: "There are, however, some few militant factions in our Government which are hopeful that coastal nations will sacrifice their sovereign rights to the natural resources of their continental margins. These nautical hawks feel that their freedom to navigate may be hampered by the development of natural resources of the continental margins of the world." See also statement of Senator Stevens, id. at p. S2818. No. 4] EVALUATION OF UNITED STATES OCEANS POLICY 681 allegation does, however, raise an element of relevance. The term "hawk" immediately brings to mind Vietnam and the depersonalized and quite intellectualized policy commitments that were made by the United States. Vietnam, in the view of one expert observer, provides a classic example of "the non-material element of will, of purpose and patience... a rebuke of spirit to the logic of numbers",282 a comment that perhaps is equally applicable to the position of the developing coastal nations of the world regarding their offshore resources. The United States has solid supporters within the world community for its approach in the development of international oceans policy, with Canada being one of the more innovative and treasured. It would be unfortunate in the extreme, however, if the United States and the other developed countries of the world were to give other than full recognition to the aspirations, policies and needs of the developing coastal states in creating necessary reconfigurations of oceans policy. These nations are not aberrant; they are not outlaw; they are not irrational. Their claims and interests must be accorded respect if consensus is to be established on the critical elements of oceans policy. With due regard to the present and predicted need for resources, both living and non-living, it would seem clear that the world community and its various members should encourage the development of ocean resources, if development can be undertaken without a significant adverse impact on other equally important values peculiar to the area where the operation is to be conducted. The economic and revenue producing aspects of offshore development have been given great, at times overriding, consideration in the past and continue to be overemphasized by many. These considerations should not be ignored, but they should not be given greater weight than other beneficial policy objectives. Ocean resources should be managed for the maximum economic benefit, but only where this is compatible with other policy objectives. It may be that with the developing countries this concept is only feasible with outside assistance as appears to be the case with environmental protection programs generally. In this case the assistance should be provided. In the conservation and development of ocean resources, the international community cannot afford to assume a neutral or passive role. It should provide the machinery to actively plan and manage resource development in such a manner as to best accomplish all identified policy objectives. The proposed new international 282 George W. Ball, former Undersecretary U.S. Department of State, in essay, "The Trap of Rationality", Newsweek Magazine, July 26, 1971, p. 64. 682 MCGILL LAW JOURNAL [Vol. 17 régime should provide the framework and the incentives for various states to meet this goal. In creating those incentives, great care must be taken to appropriately recognize resources, uses and values in which the various coastal states have a "real" interest. Traditional and vested rights in oceans should have a prominent place in considerations, but the issue is not what the rule of law is, but what the rule of law should fairly be. Today the developments both here and in the United Nations give every promise of national and international rules that will move man toward the intelligent use and management of the oceans and cement further international bonds regarding this invaluable common heritage. IV Epilogue Except as expressly noted otherwise, the foregoing analysis has considered developments only through mid-1971. There were, however, a number of developments involved in the July-August 1971 meeting of the United Nations Seabed Committee that are worthy of note. The announcement by the United States on August 3, 1971, of Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries 283 emphasized the priority given to free transit by the United States in unmistakable language: [T]here are uses of the oceans with respect to which we must all exercise the greatest care and circumspection. I am speaking of navigation and overflight. The freedoms of navigation and overflight connect us as a single community; they embody our rights and interests in communicating with each other. In the imperfect world in which we live, many nations, including the United States, depend upon air and sea mobility in order to guarantee their ability to exercise the inherent right of individual and collective self-defense. To contemplate changes in the law of the sea that might reduce that mobility is to contemplate changes affecting fundamental security interests not only of States compelled to maintain significant military preparedness, but also of States that rely on the stability created by a political and military balance to pursue other important national goals, and to avoid diverting too much of their attention and resources to matters of security. 283 Statement by John R. Stevenson to Subcommittee II U.N. Seabeds Committee on "Submission of Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries", Release United States Mission, Geneva, August 3, |