The law of the sea seems to be evolving more rapidly by unilateral actions than by formal agreements at international conferences. Two more sessions of the continuing Third UN Conference on the Law of the Sea served only to raise high expectations and then to frustrate them. At the end of the fourth session in May 1976 delegates from 150 nations were optimistic, but at the end of the fifth session in September they were dispirited by their failure to break through a stalemate of ideological differences over the exploitation of minerals on the deep sea bed. Whether the stalemate can be broken at the sixth session in May 1977 is highly uncertain.
Meanwhile, important actions were being taken in resolving another part of the law of the sea. Several key states took independent action to extend jurisdiction over their fishery resources. The United States, Mexico, Canada, the United Kingdom, India, Norway, and Sri Lanka all claimed, or were about to claim at the end of the year, limits of 200 miles for fisheries—a step that would open up a new era of bilateral negotiations.
Compromise on minerals? The sea-bed issues are the hardest to resolve. The mineral nodules on the sea floor—rich in manganese, nickel, copper, and cobalt—mostly fall well beyond national claims of jurisdiction and thus are the only items of tangible wealth in the world that are truly non-national. The governance of these resources calls for a totally new form of international institution, one that involves problems such as creating governing boards and an operating secretariat, drawing up voting rules, determining the use of royalties or taxes, and setting down the conditions for gaining access rights and regulating exploitation.
A Revised Single Negotiating Text, which emerged from the fourth session of the conference in the spring, dealt with each of these problems. But at the fifth session opinions were sharply divided with the discussions focused almost entirely on one small, but important, set of issues—that dealing with access. If the potential mining companies were to have their way, there would be no international agency or, at the most, one limited to the function of licensing claims. If a few of the developing states were to have their way (those that have high export earnings from the constituent minerals of the manganese nodules), there would be no development of the sea-bed resources or, at the most, development rigidly controlled in production and price.
The negotiating text, which was suggested by the U.S. delegation, was a compromise between these two extremes. The compromise proposes a "dual" or "parallel" system of access, according to which an applicant for exploitation rights would nominate two adjacent or separate but equal sites. The International Sea-Bed Authority would then give one to the applicant and reserve the other for an international operating agency known as the Authority's Enterprise. The Enterprise— "mankind's business arm"—would then have full rights to exploit the areas reserved for it. This system is designed to guarantee access by states and their entrepreneurs to the sea-bed minerals.
The system is also designed to meet the demands of the developing states for a direct role in the exploitation of resources that are part of the "common heritage of mankind." But, as pointed out by these developing states, the exploitation rights of the Authority's Enterprise would be meaningless unless it had adequate capital and technology. In response to this argument, Secretary Kissinger, toward the end of the fifth session, announced that the United States "would be prepared to agree to a means of financing the Enterprise."
There is little evidence today that these proposals will be acceptable to those developing states which feel strongly that access should not be guaranteed. Further compromises by the United States are unlikely. Indeed, even the present U.S. proposals could have a difficult time in the Senate because the United States would probably have to bear a large share of the contribution to an organization that would compete directly with U.S. firms.
In view of this, unilateral action by the United States to protect the interests of domestic firms is a clear possibility. Several bills will be reintroduced in the next Congress.
Although controversies over most of the other issues at the UN conference are less important or closer to resolution, certain snags still exist and may become increasingly significant should the sea-bed issues be resolved. One of these controversies is over the demands of the land-locked and geographically disadvantaged states to acquire greater shares of wealth in the waters of their neighbors.
Another snag is about freedom of scientific research. Ocean scientists, particularly in the United States, fear that they may lose their freedom to undertake investigations within the 200-mile zones of foreign countries. In contrast, the developing states, supported by the Soviet Union, are for a "consent regime" under which scientists must get permission for their research before they enter a country's economic zone. The scientists fear that such permission may not be readily forthcoming or, at least, that there will be considerable delay in obtaining it.
Fisheries management. The difficulties experienced at the UN conference are not surprising in view of the range and complexity of the issues and the number of delegations. The difficulties, however, raise the question as to whether a conference is the best means for shaping international law. One alternative is to recognize the custom of nations, and for at least one part of the law of the sea, the custom is becoming quite clear. The recent moves by several developed states to adopt a 200-mile zone for fisheries reinforces the trends set earlier. If these moves are not effectively challenged by other states preferring narrow limits of fisheries jurisdiction, the "extended economic zone" may become a fixed ingredient in international law.
An extension of jurisdiction, however, is not necessarily an easy task, as exemplified by the current turmoil and confusion over the subject within the United States. The Fishery Conservation and Management Act (FCMA), signed by President Ford in April 1976, asserts the U.S. claim to a 200-mile zone and establishes eight regional fishery management councils. After February 28, 1977 no foreigners may fish within the U.S. fisheries zone unless they have signed a Governing International Fishery Agreement (GIFA) and have received a permit. The permit will specify the conditions under which they can fish and the amount that they can take from each stock. The GIFA requires foreigners to acknowledge fully and explicitly the right of the United States to exercise exclusive authority over all stocks within the 200-mile limit. It is unlikely that complicated procedures related to permit applications and approval will be completed by March I, 1977. Congress will probably be asked to extend the deadline for implementation of the 200-mile claim.
The eight new regional fishery management councils, which are responsible for determining how much if any of the yield will be made available to foreigners, are the basis for a fascinating experiment in government. For example, it is not at all clear what manner of agency they are and what the precise extent of their authority is. Moreover, the tasks they face are formidable. One of them is to determine the optimum yield for each of the fisheries to be managed. However, "optimum yield"—the currently popular term replacing "maximum sustainable yield"—is not a clear guide for decision making. According to the new FCMA, "the term 'optimum,' with respect to the yield from a fishery, means the amount of fish—(A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and (B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factors." Without a definition of "overall benefit" or the identification and evaluation of relevant economic, social, and ecological factors, the councils will be left to their own devices determining what is an optimum yield. And frequently, they may not even have the benefit of knowing the maximum sustainable yield, since for many stocks such information is subject to widely disparate assessments.
The task of determining the capacity of U.S. fishermen to harvest a stock is, theoretically at least, more straightforward: it is the product of the number of vessels, the average fishing power, and the amount of time fished. But each of these factors may change within a season, so that the actual catch may vary widely from the estimate. Estimating the capacity of recreational fishermen is an additional complication.
Moreover, if the surpluses determined by this process are disputed, they can be challenged in the courts.
A final conference task worthy of mention is that of specifying conservation and management measures. An example is how to ilimit access to the fisheries. The condition of free and open access that presently governs almost all domestic fisheries leads to overinvestment in capital and labor and is the primary reason for the economic malaise of the industry. By making limited access systems permissible, the Fishery Conservation and Management Act opens the way for placing our fisheries on an economically efficient basis. However, at the same time the act may undermine much of the rationale for adopting limited access systems. It does this by restricting fees charged to fishermen to a level that "shall not exceed the administrative costs incurred by the secretary in issuing such permits." This amounts to a free gift to the fishermen of a potentially valuable public resource.
The problems mentioned above are a few of the many that will emerge as the United States begins to implement its claim to a 200-mile zone for fisheries. It has gained thereby more than 2 million square nautical miles—an addition of more than half the present terrestrial territory of the country. For the first time, the United States will be able to control the use of the vast fishery resources off its coasts. It is not surprising to find that the mechanism for exercising the controls is less than perfect. This is likely to be true for most other countries as well as for the United States. The transition from the Grotian era of the freedom of the seas to an era of national and multinational jurisdiction will be difficult. Considerable effort will be required to avoid conflict and ensure efficient use of the resources.
A version of this article appeared in print in the January–March 1977 issue of Resources magazine.
