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Part V: Global Commons CHAPTER 13 THE OCEANS

Pages 311-360 Oceans comprise 71% of the earth's surface. Are they a ``free resource'' that nations can use or abuse at will? The opening essay in this Chapter considers the effect of treating the oceans as a ``commons.'' Vessel-source pollution is one of the important threats to preserving the oceanic ecosystem; it is considered in the second essay. Fish and marine mammals are the living resources of the seas; their status in international environmental law forms the subject of additional essays in this Chapter. The final essays deal with the ocean floor: concepts of common heritage versus national ownership of portions of the seabed, mining of minerals, sharing of profits, and international regulating authorities. The law regarding oceanic matters has been drastically altered and reshaped by the Law of the Sea Convention, which recently entered into force. This comprehensive treaty, substantial excerpts from which are reprinted in the Appendix to this Anthology, amounts almost to a ``constitution'' for the seas. The reader is encouraged to refer to its specific language whenever the treaty is cited in the essays in this Anthology. A. The Oceans as a Commons1 The legal conception of freedom of the seas was launched in eloquent terms by Hugo Grotius in 1608 who described the oceans as that expanse of water which antiquity describes as the immense, the infinite, bounded only by the heavens, parent of all things; the ocean which the ancients believed was perpetually supplied with water not only by fountains, rivers, and seas, but by the clouds, and by the very stars of heaven themselves; the ocean which, although surrounding this earth, the home of the human race, with the ebb and flow of its tides, can be neither seized nor inclosed; nay, which rather possesses the earth than is by it possessed.* Today a realistic view of the ocean is almost diametrically opposed to that of Grotius. The ocean is very finite indeed; it constitutes a complex and delicate ecosystem facing injury from many sources. We stand at the threshold of ecological sophistication at a time when time itself may be running out for the human species. Today we are beginning to grasp the complexity of our interdependence with other life forms in our environment. For every answer that ecologists give us today they generate a thousand questions. In general, we simply do not know the consequences of what we do, and yet we go on exploiting and abusing our natural environment with a childlike faith in ignorance. The idea of ``freedom'' of the seas has come to mean in practice the freedom to pollute, the freedom to exploit--and the freedom to do so irresponsibly. Technology moves us forward; we are almost passive observers of its progress. Indeed, technology has been described as a system for producing more technology. Nations are animated by the desire to industrialize, to reduce as much as they are able of the earth's resources to their own ends, and to make material progress as cheaply as possible. It is no wonder that the dynamism of industrialization, combined with the nation-state system, leaves all other institutions behind as mere servants and apologists. Law is one of these institutions. To say that law has failed to preserve the oceanic ecosystem from national exploitation and abuse is to mistake a symptom for a cause. It has certainly failed thus far to make adequate provision for preservation of the oceans, but it has done so because of ignorance, inattention or failure of will on the part of real people in real countries who have failed to take a long-term view of human survival and its dependence upon the oceanic environment. But it would be a vast oversimplification to suggest that coping with threats to the planetary environment--particularly future threats--is merely a matter of educating national decisionmakers and provoking new concern about environmental harm. Even assuming vastly improved information on the part of the holders of power in national societies, and deep and widespread concern, in practical fact governments of economically poorer societies perceive themselves as under great and perhaps overwhelming pressure to pursue precisely those forms of social organization and conduct which give rise to the problem. The pressure to strive for enlargement of economic scale and technological sophistication is felt as irresistible, perhaps even a matter of physical survival, and most strongly so in those cases where the development of agricultural technique seems to be in an endless and accelerating race with population growth. We can expect these pressures to continue unabated for the generations immediately ahead, and the environmental dilemma, accordingly, to deepen rather than dissipate. Of itself, then, it is of little help--though an important part of the truth--to say that what is needed is a change of will on the part of the peoples of the world and their national leaders. In any event, studies such as the present book cannot accomplish this. They may, however, make some modest contribution towards changed perspective, and to identify some practical steps that could help effectuate it. Our purpose here is to operationalize, not to propagandize.

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Why take any practical steps, one might ask, when we survived for so long by doing nothing? (Organized efforts to protect the ocean ecosystem are of very recent vintage.) At bottom, the reason for radical and affirmative action to protect the ocean, despite the fact that both we and the ocean have survived thus far, is that we are going to be doing much more to the ocean than we have been doing thus far. Not only are human activities having an impact on the ocean increasing, but the rate of their increase is increasing, in a breathtaking acceleration. While it may be true that as yet it is inaccurate to describe the ocean as a whole as ``polluted,'' many significant local regions of the ocean are polluted, and we know relatively little about consequences throughout the oceanic system of these more readily observable conditions. A prudent working hypothesis for policymakers is that we have only begun to alter the ocean, and that our impacts upon it thus far may turn out to be negligible by comparison to those of the next hundred years or perhaps the next generation, in the absence of effective controls. If some future cataclysm produces a general economic and technological deceleration or collapse, we can then revise our hypothesis accordingly. But is there any need for more comprehensive calculation and planning in coping with this process? Will not the haphazard summation of individual rationalities turn out to constitute aggregate rationality? Garrett Hardin's account of the ``tragedy of the commons'' answers this question in the negative. In the common grazing grounds that existed in seventeenth century England, each farmer bordering on the commons found it to be in his own rational interest to add to his stock of cattle. If there were already fifty cows grazing on the commons, for example, a farmer who owned five cows and added a sixth to his own herd would increase his own capital by 20% while the additional cow would reduce the amount of food on the commons by about 2%. This additional reduction of food would, of course, be a detriment to the farmer in our example by about 2%, but when compared to the increase of 20% in adding a new cow it was eminently worth it to him. But the trouble is that each farmer bordering on the commons makes the same rational calculation, and continues to make it. The result is that the commons is overgrazed and is destroyed, causing the economic ruin of all the farmers. The point of this illustration drawn from events that were many times repeated is that the individual rational farmer--even if he knows that the commons is headed toward destruction--will nevertheless continue to add to his own herd. For he will ``get while the getting is good,'', impelled by the knowledge that if he exercises restraint his neighboring farmers will not. Since his neighbors will ruin the commons anyway, he might as well expand his own herd and increase his own short-run benefits. Nor is the experience of the commons confined to England. The vast deserts and semi-deserts of North Africa and West Asia--once encompassing the lush agricultural ``cradle of civilization''--are in considerable measure an example of the destructiveness of individual ``rationalities'' combining to produce overutilization and progressive deterioration. And the lesson still has not been learned. To pick only one example--the Aswan Dam may bring temporary irrigation benefits to a crowded populace at the expense of destroying the arability of the soil (which has heretofore been fertilized by the Nile overflowing its banks), or of creating new pestilences such as the snail-borne schistosomiasis. The ocean is a ``commons'' in Hardin's sense. Crudely stated, instead of individual farmers bordering on it, similarly acquisitive, self-interested, and one fears myopic, nations control the land masses bordered by the oceans. Any one of these nations may well understand, for example, that continued introduction of sewage, agricultural chemicals, and radioactive and industrial waste into the oceans may eventually wreak havoc on the oceanic ecosystem with conceivably disastrous consequences. And yet if that nation pays the price of stopping its own practices, the ocean may nevertheless continue to be subject to the same threat from its use as a sink by other nations. Thus why should an individual nation bear the very heavy expense of reconstituting and recycling its wastes and suffer the resulting competitive disadvantage? The result: individual rationalities when added together produce aggregate insanity. Even when only a handful of nations are involved the ``commons effect'' seems to follow. Only three or four nations at present are actively engaged in whaling, and yet the competition threatens to make whales extinct. The humpback and blue whales are close to extinction, and sperm whale kills are now being made in the whales' breeding grounds, close to the equator. Investment in increasingly sophisticated whale hunting gear is increasing at the same time that the number of whales in the oceans is declining because of intensive hunting. Japan and the Soviet Union presently use whaling factory ships of up to 44,000 tons that can flense and melt down the largest whale in thirty minutes; the ships are accompanied by helicopters to spot herds. In the short run these methods seem to make a profitable return on investment, but in the longer run there may well be no more whales. The commons effect in the ocean is not dependent on the ocean's continuing to be legally common. Like that other great ocean enveloping our planet--the atmosphere--but probably to an even greater extent, the liquid ocean is a ``natural commons.'' Even if it were totally divided among national territories, it would still be literally a mobile aquatic meadow. The vast movements of its waters and the processes of its ecosystem would continue to take place without regard to political boundaries. Of course, we are beginning to see that the same thing is true to a remarkable

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extent on the earth's land areas, as we come to understand intimate ecological interdependencies previously unnoticed. But this fact is of special importance in the ocean, particularly since as we shall see later in this book--there is currently a great move underway to divide large areas of the ocean legally among individual states. The simplest corrective to the commons effect is for all users to enter a compact that places rational limits on individual utilization or exploitation of the commons. International law has seen some treaties that make a start in this direction--general or regional treaties that begin to regulate dumping of wastes taken from land or the introduction of oil or other wastes from ocean-going vessels, and regional treaties on the conservation of various fisheries. These are very limited steps, however. As regulatory mechanisms they are for the most part, rather crude and clumsy. They leave untouched whole areas of human activity adversely affecting the ocean. And they are piecemeal efforts, poorly coordinated, and often undertaken only as a specific reaction to a crisis that has already occurred (such as the Torrey Canyon oil spill). We will look at these and other existing legal arrangements in detail in later chapters. For the present, it is sufficient to lay down the premise that the ocean is a global system for which we can no longer afford a piecemeal approach. What we have to strive to attain is no less than an overall, systemic plan for safeguarding our global environment. 1. The Ocean as a System In dealing with the complex interlocking factors that sustain life upon earth, we cannot overlook any relationships but instead must focus upon the global biosphere itself as the basic system for analysis. Thus, this book perforce deals only with a subsystem--the ocean. This fact requires an awareness of the constant interrelationships between human activities on land and oceanic activities, complex natural connections between land, air and water masses and the commonalities between them, and of the processes of the political and economic institutions of the land that affect the ocean. What we label the ``ocean'' therefore is only a cluster of relevant physical, legal, political and other factors, and not a discrete unit of analysis. Only for convenience do we distinguish, for instance, between the ocean and bays or other ``internal waters.'' The oceanic ecosystem knows no such sharp dis tinction; coastal waters and lagoons, for example, form a prime breeding ground for whales or fish which spend their adult lives in the deep seas. The oceans are affected by the industrial effluents introduced when the rivers finally run into the open seas . Air pollutants, entering the oceans directly through rainfall or indirectly through river systems, are a major source of ocean contamination. A nation's import policy--set primarily if not exclusively for domestic economic and political reasons--may have a substantial impact upon the volume of trans-oceanic shipping and thus a direct relation to the volume of pollution from vessels. In systemic terms, then, everything within the system affects everything else, and the system of which the ocean is a part is a large and complex one indeed. We cannot speak intelligently of ``the ocean'' without taking global political and economic processes into account. Understanding what happens in the ocean requires knowing what goes on on land. And we obviously cannot separate the open ocean from rivers, bays, internal lakes, or the continental shelf. Nevertheless, it makes sense to focus upon the ocean, not least because it remains in large measure a legal commons shared by nations: no nation has claimed sovereignty over an entire ocean since the days of Grotius and Selden. It is this fact which gives the problem of managing human conduct affecting the ocean its special legal and political character. In this respect, statesmen and international lawyers can approach issues directly or indirectly affecting the ocean with a different set of legal tools and assumptions from those employed in matters that impinge directly upon national territorial sovereignty. In short, the oceans form a handy sub-unit of analysis, providing that we do not insist too strenuously upon jurisdictional definitions--legal or systemic--of where the ocean begins and where the land masses end. 2. Activities Affecting the Oceanic Ecosystem Man's impact upon the oceanic ecosystem is historically unprecedented. Today there are three and a half billion persons inhabiting our small green planet, a figure that we are told will double by the year 2000. Technology is advancing and spreading even faster than the geometrically increasing rate of population. And the recent development of nuclear energy has created a qualitative change in man's potential to alter--perhaps irrevocably--the forces of nature. But how does this proliferating human activity affect the ocean? A first step toward sound management of the ocean is a working understanding of the different kinds of activity having an impact on it, which requires in turn at least a rough indication of the nature of that impact on each case. A first convenient category is the introduction of pollutants into the oceans from continental sources. Second is the introduction of pollutants from navigation. A third category involves the consequences to the oceanic ecosystem of resource exploitation of the ocean, including both fisheries and seabed mining and drilling and other mineral extraction. Fourth is physical alteration of the geologic characteristics of the ocean. Finally we might have a miscellaneous category comprising specific activities such as

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scientific research, oceanic tests of nuclear weaponry, and recreational use of the ocean. These categories, which are by no means mutually exclusive, afford us a simple means of making an inventory of man's impact upon the oceanic ecosystem. a. Continental Activities By far the greatest source of pollution to the ocean is the waste material introduced into the oceans from land. The oceans have become the garbage pit of the world. Municipal wastes and sewage are dumped in the oceans whenever it is regarded as cheaper to do so than to dispose of them in another manner. The ocean does not charge a tariff for dumping, and economic factors have not played a major role in protecting the ocean commons from it. Even greater in volume than municipal wastes are industrial wastes. Industrial wastes are either introduced directly into the oceans through outfalls or indirectly through river systems that eventually run into the ocean, or through the atmosphere, entering the ocean in rainfall. Liquid wastes from factories increasingly are becoming more chemically sophisticated as newer forms of synthetic products are invented. These chemical wastes may interact synergistically in the ocean (just as smog is a synergistic interaction of chemicals in the atmosphere), sometimes creating unprecedented problems for human health. A less intentional but nevertheless huge source of pollution is agriculture runoff; the use of chemical pesticides and artificial fertilizers in farming results in river contamination and eventually oceanic contamination. DDT, a common agricultural pesticide, has been found in high concentration in the body fat of penguins in Antarctica. The ocean is sometimes used for dumping poisonous gases and other noxious chemicals in containers which deteriorate in two or three decades, releasing their contents. Liquid radioactive wastes from nuclear power plants have also been dumped into the ocean. Tritiated water (a radioactive isotope of hydrogen) is being increasingly introduced into the oceans from nuclear power plants, since tritiation is a by-product of the cooling system in these plants and since the amount of water needed for cooling is quite large so that it can not be readily disposed of on land. Pollution from aircraft may also be categorized as land-based. Airplanes eject a vast amount of smoke and other pollutants as they fly over land or water, and these pollutants find their way into the ocean waters directly through rainfall or via runoffs from land. Far less significant today, but necessary to mention, is pollution from vehicles that are sent above the earth's atmosphere. Part of the cost paid to send a vehicle beyond the earth's gravitational field is the pollution left behind. (That a space vehicle returning to earth and landing in the ocean may be carrying with it virulent extraterrestrial organisms is still classified as science-fiction speculation, but a possibility not to be discounted.) b. Navigational Activities A second category of activity deserves separate treatment because it is one of the most obviously discrete sources of environmental injury to the ocean. Here we include pollution resulting from oceanic navigation and transportation. The deballasting and cleaning operations of tankers and other ships accounts for most of the oil spilled onto the ocean; occasional shipwrecks such as the Torrey Canyon disaster of 1967 or other accidents can cause additional oil pollution. Effluents from the operation of ships, from smoke to garbage and sewage, may find their way into the ocean. Accidental loss of toxic chemicals in ocean transport poses a wide range of threats. But some scientists say that the most potentially dangerous pollutant in this category is radioactive materials, for example from the discharge of wastes or the accidental or deliberate destruction of nuclear-powered submarines or other vessels . Moreover, as the use of nuclear fuel increases, large amounts of radioactive materials will be transported across the oceans. c. Ocean Resource Exploitation The ocean is commonly called ``the last frontier'' in an economic sense--a vast wealth of natural resources yet to be tapped. Off-shore oil drilling has already become a main source of petroleum in the last twenty years. Spillage from such drilling operations can be a very large source of oceanic contamination locally and a threat to oceanic wildlife. Mining activities on the seabed may not only add such pollutants to the waters but may also give rise to industrial installations bordering on or built up over the ocean and may add to oceanic pollution, such as refineries and sand-and-gravel processing plants. Ocean water itself may be ``mined'' for gold or salt or other minerals, as well as for kinetic or thermal energy, and these processes also can generate pollutants as by-products or effect other significant alterations. Moreover, it is becoming mo re economically feasible to distill drinking water from the oceans. Such distillation processes themselves may be a source of pollution, as well as leaving behind ocean water that is more concentrated in salts. Normally one does not think of fisheries in terms of oceanic resources the exploitation of which may have deleterious consequences for the oceanic ecosystem: traditionally, fish conservation conventions have resulted from a desire to preserve particular species having a high commercial value from season to season. But in ecological

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terms, commercially valuable fish like other aquatic life may contribute importantly to the stability of the oceanic ecosystem; ecologists are only beginning to discover the complex interactions among marine species. Recent technology has made it possible for man to intrude with devastating impact upon some species in the marine ecosystem. In Melville's day, one boat might catch one whale in one week; today, whales are spotted by helicopter, radar equipment is used, and whaling vessels of over 40,000 tons are dispatched to catch the whales and process them. ``Ordinary'' fishing today would have seemed extraordinary and wasteful a hundred years ago. Fishing today is accomplished by huge nets which are not selective as to the fish they haul in and kill. Moreover, the size of investment in fishing ships tends to require that the ships be active and productive even in poor seasons, placing pressures on some species which have caused serious concern in the scientific community. Ocean farming, as yet of insignificant scale ecologically or commercially, has been proposed as a way of coping with the world's increasing shortage of food. Yet farming of the oceans might have severe ecological drawbacks. The oceans are a complex and integrated ecosystem; single-crop farming on any part of the ocean might disrupt the ecological balance of the local system with a possible impact on the larger oceanic system. d. Physical Alteration With his developing technology man is increasingly modifying the physical characteristics of the earth's surface, and these activities in some cases may affect the oceanic ecosystem. The construction of a new interoceanic canal, for instance, may lead to an exchange of waters and organisms that could have disruptive effects on the equilibrium of the biological system. More common activities on land include river damming and river diversion and alteration of drainage systems. All these have potential impacts upon the ocean, though in each case the impact will be different and could be beneficial as well as harmful. Man's activities increasingly affect the land-sea interface. Land-fill activities on woodlands bordering the oceans may remove an important spawning ground for aquatic life. Dredging activities also might have a harmful impact upon oceanic system values. Tidal dams and breakwaters change the nature of the ocean for organisms dependent upon the natural patterns. As human population increases, the construction of permanent installations pushes outward from land to offshore areas. Platforms and artificial islands for petroleum extraction, to provide deepwater port facilities, or for other purposes; landfill operations offshore for airports and receiving stations; and even habitable underwater installations, are among those envisaged or already constructed. These activities in themselves will disrupt existing ecosystemic relationships, and in addition might be a source of greatly increased pollution. On the other hand, some of these activities might enrich the oceanic ecosystem by providing new spawning grounds and new areas for plant growth. Each case must be examined on its merits. e. Other Specific Activities No list of the ways man intrudes upon the oceanic ecosystem can ever be complete, since there is always the possibility, or indeed the likelihood, that technology will breed new uses for the ocean. However, we should take account here of some of the more recent activities with respect to the ocean that do not fall easily under any of the preceding four categories. Many nations use the oceans for weapons testing, and some of these tests have involved uranium and hydrogen bombs and missiles. Hydrogen bomb tests conducted in the Pacific Ocean have caused vast local disruption and genetic mutations of oceanic species, and the lasting effects of radiation from all these tests are not yet fully known. The oceans are also used for scientific research, not all of which is beneficial to the oceanic ``laboratory''. In addition to research about the oceans, some scientific research involves the development of specialized technology in an oceanic environment. The clearest example is the development of nuclear-powered submarines; the development program itself may, through accident or trial-and-error, result in contamination of portions of the oceans. Weather and climate modification, finally, hold a potential of unknown dimensions for alteration of the oceanic ecosystem. 3. Underlying Legal Philosophies in the History of Ocean Law a. The Selden-Grotius Debate: Freedom of the Seas vs. State Ownership Although in its original Grotian conception ``freedom of the seas'' meant primarily freedom of navigation, today, as we have seen, this freedom has come to embrace the license to pollute, to exploit, and to dump. We shall later consider in some detail the legal developments that have led to the present-day international law of the ocean and the protection of the marine environment. But for the present let us examine some basic legal conceptions molding the development of ocean law, especially in light of the ``commons'' effect that seems to be manifest in the ocean today. The classic debate took place in the early part of the seventeenth century. The Netherlands was at that time the

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dominant maritime country, and its leading international lawyer Hugo Grotius spelled out the arguments in favor of free navigation on all the oceans. John Selden for England countered in favor of a closed sea. (Later, when England became the dominant naval power, England espoused freedom of the seas.) Historically it was of course the Grotian position that prevailed, and today it is even hard to find a copy of Selden's Mare Clausum in a law library. Curiously enough, however, Selden's position at the time had considerable logic. For Grotius' primary argument in favor of open seas was that the seas could not be contained by any nation, that the oceans could not be dominated or set out in metes and bounds as land. This physical impossibility, Grotius argued, led to a legal conclusion that the oceans perforce had to be free for navigation by all powers. Selden's reply exhibited a close reading of Grotius' tract. Selden noted that Grotius made an exception for bays, inlets, and coastal waters, for these were in Grotius' eyes traditionally part of the mainland. But surely these were open waters just like the high seas, and if they were subject to national domination then too the high seas could be so subject. Moreover, Selden argued that any exercise of sovereignty was relative to the subject matter. Ownership of portions of the high seas would not entail the same characteristics as ownership of land. Instead of milestones and other markers as on land, ownership of the high seas might consist merely of publication of a map indicating enclosures by latitude and longitude. Selden might have added--though it probably was not the style of legal argumentation in those days to do so--that in any event Grotius would be vindicated only to the extent that he was right. If practically speaking a portion of the high seas could not be effectively occupied and thus was impossible to exercise sovereignty over, then there would be no problem and Grotius would not have had to write his tract. On the other hand, to the extent that domination could be exercised, then those portions of the high seas would be closed. What was really at issue in this debate was the paying of tariffs to a nation for navigational use of the high seas. Grotius, representing an aspiring naval power, did not want Dutch ships to have to pay for a license to navigate and trade with a distant power; he feared the proliferation of fees from all countries along the route. Selden, on the other hand, felt that England stood to gain more than she would lose by the imposition of such navigational license fees in the waters around England, affecting not only trade with England but also trade through the Straits of Gibraltar. It is interesting to speculate on what might have been the result had Selden's position prevailed in international law. It is quite possible that trade on the part of the Netherlands and other maritime powers would have continued unabated, with tariffs being paid for the use of the oceans around a number of countries. This would have required, of course, that tariffs never be so high as to block trade entirely. On this assumption the result would have been the continued existence of trade, but with the profits being shared with tariff-charging countries to the extent of their tariffs. Moreover, we may speculate that the dominant naval powers would not have paid the fees on every voyage; instead there probably would have arisen a pragmatic resolution of the problem--fees being paid whenever a patrol vessel would intercept an intruding ship. Then, as years passed and naval dominance shifted, the incidence of economic benefit from the charging of tariffs would have shifted correspondingly. On this hypothesis, international trade would not have come to a standstill (as some of the later enthusiasts of ``freedom of the seas'' have uncritically posited); rather the profits from that trade would have been spread around a little more equitably, and some nations without much of a stake in shipping at least might have received payments due to their riparian position. Speculating still further in time, we can imagine that the payment of tariffs and license fees for the use of portions of the ocean would necessarily generate expectations on the part of the shippers that the collecting country would perform certain services. When one pays a fee, one generally comes to expect certain reciprocal benefits. Thus it is conceivable that the countries exercising domination over portions of the high seas would sooner or later have found themselves in the position of custodians, responsible for the upkeep and maintenance of their portions of the high seas. This responsibility might early have manifested itself in the promulgation of fishing conservation decrees; licenses to fish in those portions of the high seas would be restricted as to certain times of year, certain types of boats, certain methods of fishing, and so forth. And, if we still had such national sovereignty in the twentieth century, we might expect the proprietor nations to exercise other forms of responsibility over mineral exploitation, dumping and other forms of pollution. b. Coastal State Ownership and the ``Commons'' Effect Superficially at least the ``ownership'' principle corresponds with Garrett Hardin's explanation of an alternative to the ``commons''. Hardin has suggested that when tracts of land were owned in England by a single proprietor, the ``commons'' effect did not take place, and the lands were preserved as grazing grounds or simply as parks. Would the same have happened to the oceans had they been divided and parceled out under national ownership? Our speculation in the preceding section suggests that this might have been the case. It is conceivable that if the ocean had been divided like an international lake or enclosed sea, with riparian states owning slices ext ending to

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the centers, the ownership principle might have operated as Hardin suggested it did when there were sole proprietors of meadows or fields. Each owner might have felt the responsibility to use the political and legal power of ownership to preserve his domain, to conserve the resources therein prudently, and perhaps to monitor ships that pass through the area to make sure that they did not discharge pollutants in unacceptable quantities. It is to say the least debatable whether such an optimistic assumption would have proven true in the case of a ``privately-owned'' ocean (and clearly it has not held true for all the earth's land surface). In any event, however, because of the nature of the oceans, the analogy to privately-owned land breaks down. Fish, the main living produce of the ocean, in large part do not stay in any one small sector of the ocean, and thus with some species the owners of individual sectors would have been in a position to catch a disproportionate share of the stock by intensive fishing. Similarly, if one owner introduces pollutants into its sector, the pollutants will spread through the ocean damaging other sectors in a way not characteristic of many environmental injuries on land. The polluting nation would have calculated on other sectors absorbing part of the pollution, thus providing a cost incentive to the polluter. Analogous reasoning would have applied to other uses and exploitations of the oceans within each sector. Thus, as already suggested earlier in this chapter, it might well be that the principle of sector or individual ownership would not have operated much differently from the ``commons'' that we have now. The nature of the oceanic ecosystem might have transformed all sectors into a ``natural commons'' for many practical purposes, just as the dynamics of international commerce might have produced practical results not unlike those reached under the legal commons which in fact prevailed. B. Marine Pollution 1. Historical Regulation of Vessel-Source Pollution2 Historically, regulation of vessel-source pollution has engendered conflict between states seeking to protect their coastal waters by adopting strict environmental controls (coastal states) and states with significant naval, commercial, or both maritime interests (maritime states) who view coastal state environmental regulation as a threat to traditional rights of innocent passage and freedom of navigation. Vessel-source pollution accounts for approximately twelve percent of all marine pollution, as compared to land-based and atmospheric sources (seventy- seven percent), ocean dumping (ten percent), and offshore production (one percent). The bulk of vessel-source pollution results from routine operational discharges, such as washing cargo tanks or disposing of sewage and garbage. In contrast, despite the public prominence of incidents such as the Exxon Valdez oil spill, marine casualties are responsible for less than a quarter of all vessel-source pollution. Vessel-source pollution traditionally has been a source of conflict between maritime and coastal interests. Coastal states have pushed for stricter environmental standards and greater authority over vessels in their coastal waters. Maritime states have tried to protect their military and commercial interests in free navigation by arguing that vessels should be subject to flag state control. A partial compromise has been to recognize greater authority of states over foreign vessels in their ports. International law has addressed the problem of vessel-source pollution in two ways: first, by establishing international vessel-source pollution standards that serve as an alternative to coastal state regulation; and second, by setting forth rules governing the jurisdiction of flag, coastal, and port states. Beginning with the 1954 Oil Pollution Convention (OILPOL), states have collaborated to develop a large body of international rules and standards relating to vessel-source pollution, both through binding legal agreements and nonbinding recommendations or codes. The forum for negotiating and establishing these international standards has generally been the International Maritime Organization (the IMO), a specialized agency of the United Nations which reflected shipping interests until recently, but now embraces coastal and more general environmental interests as well. The development of these international rules and standards has been motivated by a variety of factors--coastal states' interest in protecting their waters, maritime states' interest in the safety of navigation, and a concern of states generally for the marine environment. But, in large part, the development has resulted from a desire by maritime states to forestall unilateral coastal state regulation. Maritime states have argued that the international nature of shipping makes uniform international standards imperative. Allowing coastal states to establish national standards would lead to a ``patchwork quilt'' of potentially conflicting regulations which vessels traveling from one jurisdiction to another would find difficult to know and obey. National regulations would thus impede ocean commerce, which currently accounts for approximately ninety-five percent of all international trade. Despite the development of international vessel-source pollution standards, however, implementation of these standards has been largely the responsibility of individual states, since the international system lacks effective enforcement machinery. This raises a number of jurisdictional questions: To what extent must states implement

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international pollution standards? What other states have discretion to implement those standards? To what extent may states establish more stringent environmental standards if they believe the internationally agreed-upon standards are inadequate? Unlike international vessel-source pollution standards, which have been established almost exclusively by international agreement, the jurisdictional rights and duties of states have been defined primarily by customary international law. The 1958 Law of the Sea Conventions,36 adopted at the First U.N. Conference on the Law of the Sea, in part reflected the customary norms on jurisdiction prior to UNCLOS III. These jurisdictional norms have arguably been modified and replaced by much more detailed rules contained in UNCLOS III, through a process of customary lawmaking that occurred as a result of its negotiation and widespread compliance with its provisions. a. Vessel-Source Pollution Standards Initially, it is useful to distinguish three general types of vessel-source pollution standards: (1) discharge standards; (2) construction, design, equipment, and manning standards; and (3) restrictions and regulations related to navigation. Discharge standards regulate the release of pollutants (for example, by defining the maximum permissible releases of oil, sewage, or garbage) from vessels into the environment. Although discharges can be accidental, discharge standards generally are directed at nonaccidental, operational discharges such as routine tank cleaning and ballasting operations, since accidents are nonpurposive and hence not amenable to direct regulation. The principal international discharge standards are contained in the International Convention and Protocol for the Prevention of Pollution from Ships (MARPOL). Construction, design, equipment, and manning (CDEM) standards relate to ongoing qualities of a vessel such as whether it has a single or double hull, what equipment it carries, and the qualifications and training of its crew. Unlike discharge violations, which are discrete events that occur at a particular time and place, violations of CDEM standards persist until the deficiencies are corrected and accompany the vessel wherever it goes--including a coastal state's water or port. Finally, navigation standards relate to the movement of the ship itself. Like CDEM standards, they help prevent pollution from occurring in the first place by reducing the likelihood of maritime accidents or minimizing the environmental effects of accidents. At the international level, navigation standards have been limited to ship routing measures, traffic separation schemes, speed limits, and general safety measures. Some states, however, have established more comprehensive vessel traffic management systems in heavily congested areas of their coastal waters. These vessel management systems impose requirements relating to such matters as radio communications between ships and with shore; advance notice of arrival and departure; preclearance for entry into the traffic control zone; routine position reporting; reporting of a vessel's cargo, draft, and length; pilotage; and even directing vessels from shore. b. Jurisdiction over Vessel-Source Pollution Implementation of these various kinds of vessel-source pollution standards involves the exercise of three types of jurisdiction: jurisdiction to prescribe, enforce, and adjudicate. Prescriptive jurisdiction is jurisdiction to mandate a vessel's compliance with particular pollution standards. Enforcement jurisdiction is jurisdiction to prevent or punish violations of those standards, for example, by investigating the offense, detaining the boat, or arresting, prosecuting, and sanctioning the offender. Adjudicative jurisdiction is the power of a court or administrative tribunal to hear a case against a vessel or person. When a state enacts a law requiring all vessels calling at its ports to have double bottoms, it is asserting prescriptive jurisdiction. When it arrests a vessel with a single bottom, it is exercising its enforcement jurisdiction. And if it brings a proceeding against the vessel in its courts, it is exercising adjudicative jurisdiction. As a general rule, international law recognizes only limited bases for the exercise of prescriptive jurisdiction. States may regulate activities that (1) take place within or have a direct effect on their territory (territorial jurisdiction), (2) are committed by their nationals (nationality jurisdiction), or (3) threaten their security (protective jurisdiction). In addition, some states claim jurisdiction to regulate activities that harm their nationals (passive personality jurisdiction), although this basis of jurisdiction has not been widely accepted. Finally, certain types of acts are considered so serious that any s tate may proscribe them, regardless of whether the state has a connection with the activities or individuals involved (universal jurisdiction). Piracy is the classic example of such an act, but more recently, universal jurisdiction has also been recognized for certain terrorist and human rights offenses such as hostage taking and torture. Enforcement jurisdiction, like prescriptive jurisdiction, is an aspect of sovereignty and may be exercised by a state within its territory. However, unlike prescriptive jurisdiction, which can be exercised by several states concurrently, a state's enforcement jurisdiction within its territory is exclusive. Thus, while a state may prescribe standards for its citizens living in another country, it may enforce measures in the other state's territory only with

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that state's consent. Prescriptive and enforcement jurisdiction also differ in how they localize the exercise of jurisdiction. In the context of prescriptive jurisdiction, the important variable is where the act takes place or its effects are felt. Pursuant to the territoriality principle, a state may prescribe norms for acts taking place in, or having a direct effect on, its territory. In contrast, enforcement jurisdiction generally depends on the location of the actor at the time of the enforcement measures. The enforcement process has a number of stages. The initial and often most difficult problem is determining what happened. With respect to vessel-source pollution, this can be accomplished through self-reporting requirements, passive surveillance, inspection of the vessel's documents, or direct inspection of the vessel and its crew and cargo (which, if the vessel is at sea, involves stopping and boarding it). If the vessel is found to have committed a violation, the next step is to determine the appropriate recourse. For vessels in the enforcing state's coastal waters, one possibility is simply to exclude them (or, if a vessel is seeking access to its waters, to deny access). Alternatively, the enforcing state may arrest and detain the vessel, institute criminal proceedings, and impose sanctions. If a state institutes criminal proceedings against a vessel for a pollution offense, it is exercising adjudicative as well as enforcement jurisdiction. Adjudicative jurisdiction is the power of courts or administrative tribunals to adjudicate the rights and responsibilities of persons or entities. It can be either part of the criminal enforcement process (criminal jurisdiction) or between private litigants (civil jurisdiction). Like U.S. law, international law conditions adjudicative jurisdiction on the existence of minimum contacts between the defendant and the forum. These three types of jurisdiction are interrelated in that both enforcement and adjudicative jurisdiction depend on a prior exercise of prescriptive jurisdiction. Enforcement or adjudication against a vessel is possible only if the vessel has committed some legal transgression by failing to comply with a prescribed standard. Thus, the enforcement provisions of UNCLOS III refer to enforcement of ``applicable'' rules and standards. If a rule or standard has not been made applicable to a vessel by law, the vessel is under no obligation to comply with it. But while enforcement and adjudication both depend on prescription, the state that prescribes a standard and the state that enforces or adjudicates that standard need not be one and the same. This is quite clear in civil lawsuits for money damages, where a court may use choice of law rules to apply foreign law and the forum state need not have prescriptive jurisdiction. c. Flag, Coastal, and Port State Jurisdiction Vessel-source pollution often has international dimensions. Who may exercise jurisdiction when a vessel flies a foreign flag or cause pollution on the high seas? Which state or states may impose standards and exercise criminal or civil jurisdiction when international standards are violated? On the one hand, since vessel-source pollution often occurs in or affects the waters or territory of coastal states, coastal states have a strong interest in prescribing and enforcing standards. On the other hand, the traditional principle of freedom of navigation implies that flag states should have primary jurisdiction over vessels. Reconciling these competing coastal and maritime interests has been one of the central problems for the law of the sea. (1) Flag State Jurisdiction Flag state jurisdiction at sea, like territorial jurisdiction on land, has traditionally been the core form of jurisdiction and, as such, has not required special justification. Flag state jurisdiction is necessary, given the principle of freedom of the high seas since on the high seas a vessel must be subject to the authority of some state to preserve order. Perhaps because of its unquestioned status, the exact juridical basis of flag state jurisdiction has always been somewhat murky. According to one theory, a vessel is a floating part of the flag state's territory, and therefore flag state jurisdiction is a type of territorial jurisdiction. Others view flag state jurisdiction as an exercise of nationality jurisdiction, since a vessel possesses the nationality of its flag. Still others justify flag state jurisdiction on pragmatic grounds. In any event, the only limitation placed by customary international law on flag state jurisdiction is the principle that states have exclusive enforcement jurisdiction within their territory. For this reason, a flag state may not ordinarily take enforcement measures against its vessels in another state's territorial sea or internal waters, since this would infringe on the coastal state's sovereignty. In discussions concerning flag state jurisdiction, the question has not been its permissibility but rather its adequacy. Critics argue that since pollution on the high seas or in another state's coastal waters normally does not affect the flag state, the flag state has little incentive to prescribe environmental standards or take adequate enforcement measures. Moreover, since shipowners have wide latitude in choosing where to register their vessels, they can choose a ``flag of convenience'' with comparatively lax environmental regulation or enforcement. (2) Coastal State Jurisdiction

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Coastal states suffer most directly from marine pollution and therefore have the greatest interest in preventing vessel-source pollution.76 As a result of this interest, as well as their general concern with the adequacy of flag state jurisdiction, coastal states have claimed the right to exercise prescriptive and enforcement jurisdiction over vessel-source pollution. This claim is largely based on the territoriality principle, since coastal states have sovereignty over their internal waters and territorial sea. But broader coastal state jurisdiction has on occasion been asserted on the grounds that pollution beyond the territorial sea may affect the coastal state or threaten its security. Since coastal state jurisdiction may impinge on the ability of vessels to navigate freely, rules pertaining to coastal state jurisdiction must balance coastal states' interest in controlling pollution against maritime states' interest--and the interest of the world at large--in free navigation. In general, the balancing of coastal and maritime interests has been undertaken in broad geographic terms, by dividing the oceans into different zones: internal waters;79 the territorial sea;80 the contiguous zone;81 and now, in UNCLOS III, the exclusive economic zone (the EEZ.)82 Each zone has its own allocation of jurisdiction between coastal and flag states. As one goes further out to sea, the balance of interests between coastal and maritime states changes: the coastal state's interest in protecting the environment weakens and the maritime state's interest in freedom of navigation grows. For both reasons, coastal state jurisdiction diminishes. Thus, in their internal waters, states have plenary powers; in their territorial sea, their authority is limited by the regime of innocent passage; and beyond the territorial sea, vessels have high seas navigation rights . (3) Port State Jurisdiction Port state jurisdiction is generally defined as jurisdiction based solely on the presence of the vessel in port. If a pollution incident occurs in or affects a state's coastal waters, the state may exercise jurisdiction as a coastal state. It acts as a port state if its sole connection with the incident is the delinquent vessel's presence. From a policy standpoint, port state enforcement represents a compromise between coastal and flag state enforcement. On the one hand, port states may be more inclined than flag states to enforce environmental norms, since port states are themselves coastal states and, as such, are at risk from substandard and delinquent vessels. Port state jurisdiction therefore serves as a useful corrective to inadequate flag state enforcement. On the other hand, port state enforcement is preferable to coastal state enforcement since it interferes much less with freedom of navigation and can generally be performed more safely. Stopping and boarding a vessel in transit at sea for inspection purposes directly interferes with the vessel's movement and can be hazardous, depending on the weather and location. In contrast, inspecting a vessel while in port imposes little if any burden on navigation and can be performed safely. Even bringing a proceeding against the vessel does not hinder navigation so long as the vessel is able to go free upon posting bond. Only if the port state actually detains the vessel to carry out the investigation or proceeding is there an interference with the vessel's freedom of movement. Moreover, port states have a direct economic interest in shipping and receiving goods, and therefore they are more likely than coastal states to balance environmental measures against maritime commerce. Since by definition a port state has no connection with a pollution offense other than the vessel's presence in port, it cannot prescribe standards on the basis of the territoriality, nationality, protective, or passive personality principles. The only basis for port state prescriptive jurisdiction would be if the universality principle extended to vessel-source pollution, that is, if vessel-source pollution was a universal crime that any state could proscribe. Because there is little support for this proposition, port state jurisdiction is usually limited to enforcement where the location of the vessel at the time of enforcement (in port) is the key variable. It should be noted, however, that when a port state takes an enforcement measure such as inspecting a vessel to determine whether the vessel has committed a discharge violation on the high seas, the port state is investigating a violation of another state's law, not its own, which it lacks jurisdiction to prescribe. 2. The Law of the Sea Convention3 A dominant theme of the Law of the Sea Conference in 1973 was the failure of this traditional structure of prescriptive jurisdiction to protect the interests of coastal states. On the one hand, the power of the coastal state to regulate shipping and activities off its coast was too limited; on the other, the duty of the flag state to adopt and enforce appropriate regulations was too imperfectly defined and observed. But more important was the realization that it could not be conducive to the protection and preservation of the marine environment to continue with a legal regime based on the assumption that regulation of all sources of pollution was largely permissive. It left too much discretion to individual states to decide whether and how to control pollution. The approach of the Law of the Sea Convention17 to these problems is threefold. It attempts firstly to create a general duty to regulate all sources of marine pollution. Secondly, there is a redistribution and redefinition of the balance of prescriptive powers and duties between coastal and flag states, to some extent enhancing the power of the

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former at the expense of the latter's traditional primacy in the regulation of shipping. Finally, the Convention not only determines who may or should regulate pollution; it tries for the first time to control the content and standard of those regulations through a preference, in most cases, for internationally agreed rules. This approach serves a limiting function in two alternative senses. When specifying international rules as a maximum standard of regulation, it seeks to prevent abuse and the imposition of excessively onerous burdens on foreign vessels; when specifying them as a minimum standard, it gives content and effectiveness to the state's duty to regulate. A measure of uniformity is thus also achieved. a. Prescriptive Jurisdiction and Standard Setting (1) A Duty to Regulate Pollution The obligations contained in Articles 207-212 to adopt laws and regulations and to establish international, global and regional rules and standards form part of the primary obligation established by Articles 192 and 194 to protect and preserve the marine environment and to take all necessary measures to prevent, reduce and control pollution. These regulatory obligations apply to all sources of pollution covered by the Convention, except that for vessel-source pollution only the flag state has the duty to adopt laws and regulations; coastal states are merely empowered, but not bound, to do so, and then only in areas within their jurisdiction and within limits defined by the Convention. In their strongest form, these references indicate a minimum standard for legislation. Thus, flag state regulation of vessel pollution must ``at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference''; seabed operations laws must be ``no less effective than international rules, standards and recommended practices and procedures''; and dumping regulations must be ``no less effective . . . than the global rules and standards.'' There remains a measure of discretion in each case; the state is free to set higher standards should it choose to do so, but international or glal rules provide the starting point for at least what it must do. As an essential corollary, the Convention also envisages a duty to establish such international rules. In contrast, the role of the rules of reference for atmospheric and land-based pollution is very much weaker. Here the obligation is only to ``take account of'' internationally agreed rules and standards, but not necessarily to adopt them. States are also not obliged to establish international rules for these sources of pollution, as they are for vessel and seabed pollution; they need only ``endeavor'' to do so. In consequence of these provisions, Articles 207 and 212 are largely hortatory; they relegate obedience to the duty to regulate land-based and atmospheric pollution to the good faith of individual states. The Convention therefore does not maintain a single, uniform approach to the regulation of all sources of pollution. Land-based and atmospheric pollution is clearly subjected to a negligible level of international control and such regulations as are adopted need not conform to any particular pattern, whether of minimum standards or otherwise. This difference of approach resulted in part from pressure from developing countries for recognition of their special needs: a claim for a double standard that was a matter of some controversy at the conference, as it had been at earlier conferences on aspects of pollution control. But many developed states shared a particular reluctance on economic grounds to impose uniform international standards for these two sources of pollution, and there is no doubt that regional solutions to these problems seemed to many states to offer a more acceptable compromise. If the function of the rules of reference in the Convention is thus somewhat varied, it is nonetheless clear. The same cannot be said when it comes to identifying precisely which rules and standards are being referred to. Throughout the Convention there are references to ``international rules and standards,'' ``internationally agreed rules,'' ``generally accepted rules'' and ``global rules,'' with no obvious uniformity in terminology or clarity of meaning. International rules for the control of vessel pollution, to take one example, are contained in the 1954 London Convention, with its later amendments, and in the 1973 marine pollution Convention. What exactly do ``generally accepted'' or other similar phrases mean in this context? One interpretation would require widespread ratification or incorporation in national law, and some commentators have argued that only those conventions which have achieved the status of customary law can be regarded as setting international rules or standards. Either of these interpretations would probably cover the 1954 Convention and the 1972 London Convention on dumping, but they would impose a very substantial burden of acceptability that the 1973 Convention could not meet. Thus, as regards vessel pollution, these interpretations would be unduly favorable to maritime states and would merely perpetuate the application of an obsolescent convention not designed for the control of pollution under modern conditions of tanker operations. More generally, to insist on widespread ratification or acceptance in customary law before the duty to regulate is perfected would not encourage broader adoption of international rules and standards for all sources of pollution. The intention behind these rules of reference is, in most cases, to give effective content to the regulatory duties of states, or in the case of coastal states, to limit their assumption of regulatory power. The Convention should be

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construed with that object and purpose in mind. An alternative interpretation to those mentioned above, one more consistent with that aim, would concentrate on securing the incorporation of those conventions, such as the 1973 Convention, which are intended to represent the international community's most recent formulation of relevant rules and standards, provided only that they have been ratified by enough states to enter into force. The strength of this approach, but also, in contrast to other interpretations, its difficulty, is that it would place on parties to the Law of the Sea Convention a duty to adopt rules and standards in other conventions to which they might not and need not be parties. This might be thought to be an unacceptable intrusion on the sovereignty of states; but any less radical formulation requiring ratification or adoption in national law by a larger number of states leads back to the problems referred to earlier. Whichever interpretation is adopted, the result, to a greater or lesser degree, will be to limit the traditional freedom of states to refuse to ratify or apply relevant multilateral conventions; but if the object of the pertinent provisions of the Law of the Sea Convention is to bring about the widest possible application of international rules, this conclusion seems inescapable. There is also some doubt over the distinction, if there is one, between ``rules'' and ``standards.'' The meaning of ``rules'' as a form of potentially binding obligation is clear enough, but are ``standards'' intended to refer, by contrast, to resolutions of the International Maritime Organization (IMO) and other such nonbinding instruments, or is the distinction merely descriptive of different categories of obligation? This question raises in even starker form the issue of the imposition on states of duties derived from sources by which they would not otherwise be bound, but here there seems less to be said in favor. States should be allowed the freedom to make collective recommendations without their becoming instantly and indirectly a form of binding obligation. If this observation is correct, then ``standards,'' like ``rules,'' should be restricted to those laid down in instruments intended to be binding, and for this purpose nothing of substance turns on the difference in terminology. It is doubtful how far any of the foregoing represents preexisting customary international law. Insofar as there have been customary obligations concerning pollution, they have been obligations imposing responsibility for causing loss or damage to other states, not for protecting the marine environment or controlling pollution by regulation. The most striking achievement of the Convention in this regard is the creation of a legal regime whose primary focus is not on obligations of responsibility for damage, but on comprehensive regulation to prevent and control marine pollution. But serious weaknesses remain. To say that states have a duty to regulate pollution is to beg the question what regulations they must adopt, a question the Convention does not satisfactorily answer. Its use of rules of reference is sensible in principle but flawed in practice by the failure to specify with clarity when existing or future rules and standards become applicable and by the dilution of the role of international rules and standards for land-based and atmospheric pollution. Above all, there is an insidious uncertainty about too much of the phraseology and a danger it may be used to undermine the Convention's effectiveness. Though in appearance the regulation of pollution may be obligatory, there may remain a significant level of discretion and a continued role for the creative function of state practice in defining the acceptable content of pollution obligations and their limits. (2) Coastal State Powers of Regulation Faced with the inadequacy of contemporary arrangements for controlling pollution at sea, a strong lobby of states, including notably Canada and Australia, exerted considerable pressure at the conference for a general extension of coastal state legislative powers in the territorial sea and in an extended zone beyond it. Some states, especially Canada, had already begun to claim pollution control zones beyond the territorial sea, but these claims were strongly opposed by major maritime powers who feared that the extension of coastal state legislative control would interfere with the freedom of navigation and might lead to the application of a variety of standards affecting vessels. There was general agreement at the conference that coastal states should continue to have jurisdiction over pollution in the territorial sea and that, in principle, they should be given jurisdiction to protect and preserve the marine environment within the exclusive economic zone. The conference also acknowledged the duty of coastal states to regulate pollution from seabed activities and installations under their jurisdiction in the EEZ and continental shelf, and they were given power to regulate dumping in these zones. But the extension of coastal state powers over vessels remained controversial; thus, it is not possible to characterize the result of the conference as a straightforward extension of coastal state power at the expense of the flag state. Instead, the creation of the exclusive economic zone involved a compromise between the competing claims of flag states and coastal states: on the one hand, the EEZ regime conferred regulatory jurisdiction over all sources of pollution including vessel pollution on the coastal state; on the other, that regulatory jurisdiction in respect of vessels was limited to the application of international rules for enforcement purposes only. Thus, although the Convention leaves untouched the exclusive responsibility of the flag state for the regulation of vessel pollution on the high seas, the new EEZ regime does involve a significant redistribution of power to the

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coastal state in pollution matters over a geographically much larger area. In other respects, however, this change is considerably less radical than some states had hoped. The real debate at the conference on extending coastal state jurisdiction over vessels was not about whether coastal states should have authority over a wider area of sea, but about who should be entitled to set applicable regulations and what these rules and standards should include. Should they be international rules and standards or should coastal states have the power to determine their own national regulations? Should there be limitations on the range of matters the coastal state would be entitled to regulate? Both of these questions were of particular concern to maritime states, whose clear preference for international rules and standards and for excluding construction, design, equipment and manning from the purview of coastal state power the Convention substantially recognizes. For the territorial sea, the final compromise was not in any sense an extension of coastal state regulatory jurisdiction but a clarification and definition of its limits. Article 17 of the Convention on the Territorial Sea and the Contiguous Zone had merely required foreign ships exercising the right of innocent passage to comply with the laws of the coastal state, insofar as these were in conformity with the Convention and other rules of international law and did not hamper innocent passage. Although the coastal state's regulatory power was therefore not unlimited, it was nevertheless a power to adopt national, rather than international, rules, a power exercisable within relatively broad and imprecise limits. The Law of the Sea Convention contrasts strongly with this by specifying the matters on which the coastal state may legislate, including under Article 21, the safety of navigation, the preservation of the environment of the coastal state, and the prevention, reduction and control of pollution. The Convention retains the basic preference for national rules and standards in the territorial sea, however, and in effect allows the coastal state to adopt its own pollution discharge rules for foreign vessels; there is no requirement that these conform to international standards, whether those contained in the 1954 or 1973 Conventions or otherwise. There are two important limitations on this power of the coastal state to legislate for pollution control in the territorial sea. The obligation not to hamper, deny or impair the right of innocent passage remains, and the right of innocent passage is itself defined in much more detailed and specific terms by Article 19. Vessels causing pollution will only cease to be in innocent passage if the pollution is ``wilful and serious,'' which probably excludes most typical operational discharges of oil because, though they may be ``wilful,'' they are more rarely ``serious.'' The effect of these provisions thus seems to strengthen the hand of flag states in resisting intrusive legislative inroads on their vessels' right of passage, despite the apparent power of the coastal state to set its own standards for pollution control. Maritime states were also successful, after much debate, in securing the exclusion of coastal state regulation of the design, construction, manning and equipment of foreign ships unless such rules give effect to ``generally accepted international rules or standards.'' This provision and the reference in Article 23 to special precautions established by international agreement for nuclear-powered ships and ships carrying inherently dangerous or noxious substances are the only places in the Convention where coastal state power in the territorial sea is confined to the adoption of international standards. Although Article 22, which permits the use of sea lanes and traffic separation schemes, requires the coastal state to ``take into account'' the recommendation of the ``competent international organization,'' this formulation, like other similar ones, seems to leave the coastal state broad discretion to draw up its own national routing schemes. That interpretation appears to be consistent with state practice in the territorial sea. The territorial sea regime envisaged by the Convention is thus a compromise: it offers coastal states power to control navigation and pollution, while preserving rights of passage and international control of the construction, design, equipment and manning standards for vessels. This result, in substance, endorses the position that had prevailed in practice before the Convention, but by substituting more precise definitions for formerly vague limitations, the Convention preserves the rights of maritime flag states more securely from future erosion. The extension of coastal state legislative jurisdiction to cover vessel pollution in the exclusive economic zone is more clearly controlled by and limited to the application of international standards. Here the coastal state has jurisdiction over the protection and preservation of the marine environment, but it must have due regard for the rights and duties of other states, which include the right of navigation. Article 211(5) specifies that coastal state regulations for the control of pollution from vessels should conform and give effect to ``generally accepted international rules and standards established through the competent international organization or general diplomatic conference.'' This formulation seems to leave the coastal state no discretion in the adoption of rules and standards. Clearly, it is not entitled to set more onerous rules or standards for vessel pollution than those accepted internationally, but it does not seem able to apply lower standards either, since these would not ``conform to or give effect to'' international rules and standards. Paradoxically, since regulation of vessel pollution in the economic zone is not obligatory, the coastal state may simply refuse to adopt any rules or regulations. The difficulty of deciding

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what constitutes ``generally accepted international rules and standards'' applies here as well, but most delegations at the conference appear to have had the 1973 marine pollution Convention in mind. Special circumstances in the economic zone are provided for in two ways. Zones of special mandatory measures for the prevention of vessel pollution may be authorized by the IMO (``the competent international organization''). The coastal state may then adopt international rules and standards for special areas promulgated by the IMO, or adopt its own national laws, provided these relate only to discharge or navigation and not to construction, design, equipment or manning. Only within ice-covered areas does the coastal state have a general power to apply national standards to EEZ pollution control, provided they have due regard for navigation and are nondiscriminatory. This exception was a concession to Canadian interests in the Arctic Ocean, but its limited application does not seriously affect the general conclusion that for vessel pollution in the zone, the Convention favors the application of international, rather than national, rules and standards. All told, this compromise scheme does not add up to the dramatic extension of coastal state legislative jurisdiction over vessel pollution that some states had originally sought. Apart from concessions over special areas and ice-covered zones, the Convention serves the interest of maritime states in ensuring uniformity of standards in the economic zone and, above all, in preserving their ability to influence the formulation of those standards through the IMO. Herein lies the importance of the distinction between coastal state legislative power over vessels in the territorial sea and in the exclusive economic zone. Only in the territorial sea is the coastal state in most respects the sole judge of its interests, within the limits imposed by the Convention. In the economic zone it has no such discretion over the rules it may apply. Not only does that power lie primarily with the states that make up the IMO, but the international regulations adopted through that institution are an expression of compromise and common interest among the various groups represented there, and not merely of the interests of coastal states. For this reason, the articles on vessel pollution in the economic zone are better understood not as an attempt to give the coastal state more power at the expense of the flag state, but as part of a policy of strengthening and making more effective the primary duty of flag states to control their own vessels. In this sense, the coastal state's legislative role in the zone is a secondary or subsidiary one, more important for enforcement purposes than as an example of legislative jurisdiction. b. Enforcement Jurisdiction Historically, enforcement has always been the weakest part of international efforts to regulate marine pollution. While land-based, atmospheric and seabed pollution fell clearly within the enforcement power of the coastal state alone, there was certainly no duty under international law to enforce whatever regulations states might at their discretion have adopted to deal with these matters. International law had little to say on this subject. Enforcement powers over vessels for pollution and dumping rested primarily with the flag states, save that coastal states did have the right to arrest and prosecute for offenses committed in the territorial sea. This right was subject in turn to the right of innocent passage, and under the Convention on the Territorial Sea and the practice of some states was only exercisable, as a matter of comity, where the consequences of the violation affected the coastal state; but customary law probably allowed a general power of enforcement for pollution and dumping in the territorial sea. Both the 1973 Convention on marine pollution and the 1972 London Convention on dumping required coastal states to apply and enforce their provisions against all vessels in the territorial sea. A limited concept of port state jurisdiction also developed in customary law, allowing prosecution for violations in the territorial sea and internal waters of the port state. The 1973 Convention on marine pollution additionally permitted port state inspection with a view to reporting any violation to the flag state. Otherwise, enforcement was entirely a matter for the flag state, which, apart from an obligation to enforce the 1973 Convention, was free to choose what action, if any, to take. Surveys of violations reported and prosecutions undertaken have consistently shown the unwillingness of many flag states to enforce pollution laws against their vessels with any vigor, although difficulties of proving violations have contributed substantially to an indifferent record of enforcement by coastal and flag states alike. Considering this generally abysmal record of enforcement and compliance, it is not surprising that the construction of a more impressive and effective enforcement regime became one of the major pollution issues at the Law of the Sea Conference. The Convention is notable for imposing on states a duty to enforce regulations on all sources of pollution, but the provisions on vessel pollution are again the most interesting. These represent an extension, rather than a radical revision of, the existing law. Many of the changes had previously been debated, though shelved, at the 1973 conference on marine pollution; they do reflect some movement away from the primacy of flag state enforcement jurisdiction. There are two elements in this revised framework. Firstly, the obligation of flag states to ensure compliance by their vessels with applicable pollution standards is reiterated, but in much stronger form than hitherto. This obligation expressly includes such matters as prohibiting substandard vessels from putting to sea,

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ensuring that vessels obtain appropriate international certificates for seaworthiness and other requirements and are inspected regularly, investigating and prosecuting alleged violations of pollution laws and ensuring that penalties imposed are adequate. Clearly, if properly adhered to, these provisions would greatly increase the effectiveness of flag state jurisdiction as the main means of control over shipping. Secondly, it was generally accepted that strengthening flag state duties would not alone be sufficient to remedy existing inadequacies. The more contentious issue was whether to enhance the enforcement power of the coastal state and extend it to the whole economic zone or to concentrate instead on increased use of port state jurisdiction as the main complement to flag state power. The advantage of increasing coastal state jurisdiction was that it would enable those states that suffered most from poor enforcement to act for themselves, but the disadvantages of such a radical redistribution of power were the threat it would pose to unimpeded freedom of navigation, particularly in the economic zone, and the practical difficulty of stopping and arresting ships in passage. From this point of view, increased port state jurisdiction emerged as the more attractive solution by far, for it presented no dangers to navigation and more readily afforded facilities for investigation and the collection of evidence. After much debate, the conference settled on a compromise between the two approaches, extending coastal state powers in certain limited respects, but according a significantly greater role to the port state. The coastal state retains its power to investigate, arrest and prosecute vessels in the territorial sea for violation of pollution laws, but it is not given plenary competence in the economic zone. There its powers are graduated according to the degree of harm threatened. Arrest and prosecution may only be undertaken when pollution causes or threatens ``major damage'' to the coastal state. The coastal state may inspect the vessel if there is at least ``substantial discharge'' causing or threatening ``significant pollution,'' but if none of these conditions is met, the coastal state may only require information about the identity of the ship and its next port of call. These rather vague gradations may well be open to liberal interpretation by coastal states, but they plainly amount to rather less than plenary power to enforce international pollution standards in the exclusive economic zone. Save where the coastal state is itself threatened by the pollution, its role is limited to collecting the necessary information to invoke flag state or port state enforcement; its jurisdiction in the economic zone is thus strictly protective, rather than fully territorial, in character. The port state may as before investigate and prosecute any violation of applicable rules in its own territorial sea or economic zone, but--in a novel development--it may also investigate and prosecute pollution discharge violations on the high seas or within the jurisdictional zones of other states. Though free to act on its own initiative in respect of high seas offenses, the port state may prosecute for violations within the coastal waters of another state only if requested to do so by the coastal or flag state concerned. In this latter respect, therefore, the port state functions as an agent, ensuring prosecution where the coastal state is incompetent to act, while in other cases, it facilitates prompt prosecution where the vessel is unlikely to sail within reach of the flag state's jurisdiction. How far do these provisions diminish the traditional primacy of flag state jurisdiction? Only partially, it seems. Flag states no longer enjoy sole and exclusive jurisdiction over offenses on the high seas. Their enforcement jurisdiction is now in all respects concurrent at least with that of port states and in some cases, with that of coastal states as well. In principle, this change is clearly important, and there is some likelihood that, in practice, it may furnish more effective machinery for enforcing pollution laws. But this is not concurrent jurisdiction in the ordinary sense, entitling either party to prosecute. The new powers of coastal and port states are subject to one very important limitation in the form of flag state preemption, which enables the flag state to insist on taking over the proceedings itself, except in cases of major damage to the coastal state. It must, of course, continue the proceedings and it loses its right if it repeatedly disregards its obligations; moreover, preemption does not apply to coastal state proceedings for territorial sea offenses or port state proceedings for offenses in the port state's own territorial sea or economic zone. Nevertheless, in most cases, it is ultimately the flag state that alone will determine whether proceedings by coastal states or port states will be allowed. The loss of exclusive jurisdiction is in this sense severely qualified, and as one commentator has put it, unless the bona fides of the flag state can really be assured, the provision could effectively destroy the impact of the coastal and port states' prosecutory power. As with other parts of the Convention, these apparent changes in fundamental principles must therefore be treated with some caution. c. Responsibility, Liability, Intervention and Notification In traditional customary international law, responsibility for loss or damage represented the only significant general principle mitigating the freedom to pollute the seas. The Convention has made some important changes in these respects and in the related issue of coastal state rights to notification of and self-protection from threatened or imminent pollution. Articles 194 and 198 reiterate the basic customary obligations to avoid causing pollution damage to other states or their environment and to notify them of imminent or actual damage, but the Convention has a broader emphasis, concerned with the protection and preservation of the marine environment as such. States

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are thus required to take all necessary measures to prevent, reduce and control pollution of the marine environment, to prevent pollution from spreading beyond the areas where they exercise sovereign rights, to prevent the transfer of pollution damage or hazards from one area to another or the transformation of one type of pollution into another, and to prevent, reduce and control pollution from the use of technology or the introduction of new or alien species. It is for breach of these provisions that Article 235 seems to contemplate the novel possibility of state responsibility for causing damage to the marine environment unconnected to loss or damage to the interests or environment of other states. This notion represents a considerable departure from arbitral awards like the Trail Smelter or Lake Lanoux decisions, and it is altogether more difficult. The Convention does not reveal how the concept of responsibility, expressed in its customary form as an obligation to make reparation, could usefully be applied to the causing of general environmental pollution when no state has suffered loss as a result. How would the damages be assessed and who would claim them? The Convention offers no guidance on these points. Principles of liability in national law for causing pollution damage are likewise left for further development. Litigation in national courts in respect of marine pollution damage raises complex problems of choice of law, applicable principles and jurisdiction of the courts over foreign defendants and foreign events, which, for the sake of uniformity, are best resolved by agreement and cooperation between states. This has been done successfully in the case of pollution from vessels, nuclear pollution and seabed operations pollution, where international conventions have settled issues of jurisdiction and provided self- contained codes of liability; but the attempt of the Convention to cover all forms and sources of pollution raises the possibility of providing for those not already covered. Here Article 235 is of little value. It does no more than require states to ensure that recourse is available under national law for pollution damage caused by persons subject to their jurisdiction, but there is no attempt to prescribe any detailed principles of liability or to provide for specific sources of pollution. Nor is it clear why the obligation to make recourse available is imposed on the state whose nationals have caused the damage; for good reasons of practicality, ease of proof and uniformity of damages, the 1969 Convention on civil liability requires proceedings to be brought in the courts of the victim's state, whether or not the person causing the damage is otherwise subject to the jurisdiction of that state. There seems no good reason why Article 235 should contradict this considered preference. (1) Intervention and Notification The right of coastal states to intervene on the high seas in cases of maritime casualties that cause or are likely to cause pollution damage was clarified by the 1969 Convention on intervention after the Torrey Canyon disaster raised doubts about the existence and basis of such a right in customary law. The Law of the Sea Convention makes no attempt to deal with this issue directly and merely preserves without prejudice the rights of states under customary and conventional law to intervene beyond the territorial sea. Suggestions were made by some states, notably France, to extend the right of intervention following the Amoco Cadiz disaster, and Article 221, which originally had followed closely the wording of the 1969 Convention, eventually emerged with the references to ``grave and imminent danger'' of damage to the coastline deleted. Intervention may now take place when there is merely ``actual or threatened damage,'' which suggests the possibility of somewhat earlier action by the coastal state than might be permissible under the 1969 Convention. Of course, the right of intervention, at whatever point, has little utility if the coastal state is kept in ignorance of impending disaster until it is too late to act. This was the real source of France's problems in the Amoco Cadiz incident, and it was a serious weakness of the 1969 Convention that it did not provide for prompt notification when a ship was in difficulties. The attempt of the Law of the Sea Convention to deal with the issue of notification is for that reason a more significant provision than any changes in the conditions for intervention. Flag states are now required to adopt regulations obliging vessels to give prompt warning to coastal states likely to be affected by incidents involving discharges or the probability of discharges, but this provision is not limited exclusively to maritime casualties; it covers all pollution incidents, including operational discharges, and thus establishes as a general principle the obligation contained in the 1973 Convention on marine pollution for all vessels to inform coastal states of pollution they have caused, whether accidentally or deliberately, lawfully or unlawfully. States are also required to notify each other of the likelihood that they will be affected by pollution damage of which they become aware. The latter obligation probably already represents customary law. d. Conclusions The primary significance of the pollution provisions of the Law of the Sea Convention is clearly their formulation of a structure of principles governing all aspects of marine pollution prevention and control. Based on the general duty of protecting and preserving the marine environment, this structure is comprehensive as to sources and forms of pollution and in requiring states to take all necessary measures to prevent, reduce and control marine pollution. In addressing issues of regulation, enforcement and cooperation, it reflects a fundamental shift from

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power to duty as the central controlling principle of the legal regime of the marine environment, and a transition from a regime based on obligations of responsibility for damage to one based on obligations of regulation and control. Regional cooperation agreements will assume considerable importance in this regard by helping to ensure that states possess or have access to adequate means of combating pollution and by providing a more immediate focus for putting pressure on them to comply with their obligations under the Convention and international law; but beyond the limits of national jurisdiction, the sole mechanism for control of pollution remains, as it always has, action taken by the flag state, aided perhaps by port state enforcement powers. Despite the attempt in the Convention to strengthen flag state obligations and provide for better enforcement, the effectiveness of this form of control must remain questionable; and the provision for state responsibility in respect of damage to the marine environment as such will be of doubtful effect where no state has suffered sufficient damage to have an interest in seeking redress. Finally, by including within the EEZ regime coastal state jurisdiction over pollution, the Convention alters, but only marginally, the balance between coastal and maritime states. Although the coastal state now has jurisdiction over the control of pollution up to the limit of the economic zone and has to this extent acquired enhanced rights and responsibilities, its jurisdiction over vessels remains restricted. Only in the territorial sea does it have the right to set national standards for pollution discharges, and its power to regulate the construction, design, equipment and manning of foreign vessels in the territorial sea or pollution discharges in the economic zone is limited to the application of international rules and standards. In the zone, its powers of enforcement over vessels are substantially less than they are for the territorial sea, and in many cases the coastal state must rely on port or flag state assistance. The rights of vessels to high seas passage in the economic zone and innocent passage in the territorial sea have thus been substantially preserved from abusive interference in the name of pollution control. This result is entirely characteristic of a convention that in environmental matters has proceeded cautiously and built on principles developed for the most part from existing law. 3. Flags of Convenience1 Maritime flags are a symbol of nationality. As such, they are generally thought to be important in determining when a relationship exists between a state and a ship and, thus when a vessel is subject to the law of that state. The flag of a vessel serves two different functions: it is a symbol of the nationality of the ship, which consequently designates the national law governing the affairs of the vessel, and it identifies the location of those responsible for the vessel. For at least the last thirty years, the practice of some shipowners of registering their ships under the flags of states with less stringent manning and safety requirements than states which traditionally have set the standards of safety, has led to controversies. Some states offer vessel registration under conditions that impose fewer financial and administrative burdens than those which are imposed by other states. Economic rather than political considerations usually account for an owner's decision to flag or to re-flag a vessel. These practices have waxed and waned over time. During the nineteen fifties, for example, the United States' maritime unions waged a complex campaign against flags-of-convenience2 shipping. States have two responsibilities in the flagging of ships. The first responsibility arises in the decision whether or not to flag the vessel. Since international law places so few restrictions on the right to grant nationality to ships, this responsibility is fulfilled easily. Thereafter, other states are obliged to recognize the ship's nationality as being that of the flag granting state. The second responsibility arises when the flagged vessel sails. The flag state has a general obligation to insure that its flagged vessels neither impede nor endanger other states in their use of international waters. More recently, the antagonism to the practice of using flags-of-convenience to avoid stringent controls of shipping has increased. Environmental and conservation groups, which, in the context of domestic industrial activities, have not been known to have interests sympathetic with those of the maritime trade unions, are the new opponents. Over the years, transnationally operating agreements and international agencies have developed, at least in part, to restrain pollution damage to the oceans, enhance the rational use of resources, and to protect the mammal life of the sea. As a result, the arbitrary and individualistic interests which resort to flags-of-convenience may be seen as increasingly anachronistic. These interests resist the circumambient development of a legal consciousness by remaining a legal device for circumventing the law. This paradox is still possible because there remains in this modern world, where state sovereignty survives, the constantly eroding ancient principle of the exclusivity of the sovereignty of the flag state, regardless of the flag or the state's actual relation to the ship or the relevancy of its laws to the rational use of the oceans from the point of view of international community values. This article will review the problem of flags-of-convenience in terms of the growing consciousness of the need

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for international maritime environmental and conservationist regulations. It will, of course, be confronted by a paradox: states which follow flags-of-convenience policies may lawfully and appropriately call upon countries opposing flags-of-convenience practices to recognize and respect those flags. On the other hand, these flags-of-convenience states may become increasingly subject to pressures to amend their domestic laws to limit the permissiveness of their ship registration criteria and procedures. Indeed, some states may eventually insist upon their right to refuse to recognize such flags-of-convenience registration on the grounds that to accord this recognition would give effect to the rights and classifications contrary to their local policies and laws. This view contrasts with the traditional view taken by scholars such as Dr. Boleslaw Boczek in his book Flags-of-Convenience: An International Legal Study.3 The categorical position taken in this book asserts that states have the unequivocal right to admit ships to their registries and that other states are obliged to recognize the unilateral exercise of this right. According to Dr. Boczek, states themselves are authorized to decide under what conditions they will grant nationality to merchant vessels. Once granted, this registration must be recognized by other states since ``[T]he authority given by a State for a ship to fly its flag ought to be construed as constituting a grant of its nationality by the State to the ship. . . .'' Boczek presents the thesis that while permissive norms of apparently unlimited extent confer upon all states an absolute right to grant their nationality to ships ``for all purposes,'' international rules of obligation exist which bind all other states to recognize and receive into their legal systems the granting states' creations of rights and classifications. Such a juxtaposition of norms of obligation and permission is extremely arbitrary. Inevitably this thesis gives rise either to the unresolvable opposition, in the field of international action, of equally valid but conflicting classifications under the domestic laws of different States, or to the elevation of the PanLibHon4 states to the sovereign positions so aptly depicted in Lord Ellenborough's rhetorical question: ``Can the Island of Tobago pass a law to bind the rights of the whole world?''5 a. Jurisdictional Issues The reflagging of tankers must be justifiable on its own merits as a reflagging under the international and domestic standards that govern vessel registration. The international standard is embodied in the concept of the ``genuine link'' doctrine that was addressed in three specific conventions: (1) the Convention on the High Seas of 1958, (2) the United Nations Convention on the Law of the Sea of 1982 (UNCLOS III); and (3) the Convention on Conditions for the Registration of Ships (UNCTAD). (1) Treaty Formulations Articles 5 and 6 of the Convention on the High Seas provide:

Article 5 1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.

Article 6 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. These provisions are substantially, rather than exactly, reiterated in articles 91 and 92 of the 1982 United Nations Convention on the Law of the Sea. Article 97 of UNCLOS III, which reiterates Article 11 of the Convention on the High Seas, provides as follows:

Article 97 Penal Jurisdiction in Matters of Collision

1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

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2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or license shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. As the International Law Commission pointed out in its commentary to draft article 35 Concerning the Law of the Sea, this article is limited in scope. It is a penal provision directed to allaying the disquiet of ``international maritime circles'' to which the Permanent Court of International Justice gave occasion by its decision in the Case of the S.S. ``Lotus'' (Fr. v. Turk.).6 Article 97, like article 11 of the Convention on the High Seas, restates and adds to the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collisions and Other Incidents of Navigation (Brussels Convention). It was the product of a diplomatic conference held in Brussels in 1952 to deal with the specific issue which the Lotus case precipitated--namely the recognition that a state, other than that of the ship which inflicted the injury, may try the responsible officers. In that case, the S.S. ``Lotus'', a French steamer, collided with a Turkish flag vessel on the high seas, resulting in the sinking of the Turkish flagged vessel and the death of Turkish citizens. The Permanent Court of International Justice upheld the right of the non-flag state (Turkey) to arrest and try for manslaughter the officer during whose watch the collision took place. The after-shocks of this decision led to the Brussels Convention. This agreement effectively reversed the holding for most major maritime cases and restored what had previously been viewed as the customary international law of the sea. As such, this was incorporated into the article 97 of UNCLOS III and 11 of the Convention on the High Seas. The International Law Commission also pointed out that its 1956 draft of what became article 11 of the 1958 Convention was not intended to have effect on ``private international law issues arising out of the question of collision''. On the other hand, the limitation on non-flag states' competence with regard to visiting penal consequences on the negligent navigation of ships on the high seas might be of considerable significance for a coastal state whose shores may be badly polluted by a maritime collision or stranding. In May 1967, the Liberian flagged supertanker, the Torrey Canyon, spilled 100,000 tons of crude oil into the English Channel, causing extensive damage to both the English and French coastlines. The inadequacy of existing domestic and international legal principles relating to marine oil pollution casualties was exposed by the ensuing difficulties in resolving the numerous compensation claims and liability issues raised by the various claimants in that case. While the civil claims arising from the Torrey Canyon disaster, for example, remained unaffected by the Brussels Convention and the Convention on the High Seas, Liberia took exclusive charge of the penal aspects. As a result, a Liberian Board of Investigation sitting in Genoa penalized Captain Rugiati, the master of the Torrey Canyon, by removing his master's certificate. It is regrettable that the Board was apparently suspected of refusing to inquire into the issue of the ship's seaworthiness. It would seem the Brussels Convention and its progeny, cast a fig-leaf of respectability over the question of the ship's seaworthiness, or lack of it. Had the vessel been found unseaworthy, the owners would not have been able to limit liability nor would the captain's masters certificate have been revoked. While the basis of maritime jurisdiction in coastal waters tends to be in terms of the categories of the exclusive claims which states assert offshore, the authority that states claim on the high seas has traditionally been seen as stemming from the exclusive jurisdiction that states assert based on the flags the ships fly. While the Lotus case denies this proposition, it is upheld by the Brussels Convention. Apart from some recent and tentative treaty developments, and the customary international law privilege arising from a state of emergency of abating a nuisance on the high seas, the basis for controlling pollution on the high seas is still through the flag state's laws. These laws may bind its own shipping to respect the integrity of the environment. But that is a matter of unilateral decision and is the policy choice of each individual state. In matters of the world community interest in protecting the environment from the pollution of the oceans, it is a most haphazard approach, made all the more risky by the current practices of many international oil corporations (and other extractive enterprises) of registering their giant, sometimes poorly maintained and negligently navigated, fragile tankers under the so-called flags-of-convenience. (2) The International Court of Justice's ``Genuine Link'' Doctrine: An Unruly Metaphor for Ships Responding to a comment by Professor van Panhuys, Professors McDougal and Burke pointed out the central difficulty in applying the ``genuine link'' doctrine to the nationality of ships. They stated: Our reference to Professor van Panhuys' views was in the context of a demonstration that no one has as yet suggested an empirical meaning for ``genuine link'' as applied to ships, in terms of the common interests of states. Professor van Panhuys does not in his present note suggest any such meaning. We remain of the opinion that it is an impossible task for anyone--third party decision-maker or other--to identify such meaning.7

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In this brief passage, the authors criticize the extension of the ``genuine link'' doctrine from the law of nationality (where the International Court of Justice enshrined it, not without considerable criticism, in the Nottebohm Case)8 to the international law of shipping. Professors McDougal and Burke's brief comment is more than a ``Footnote.'' It is a challenge. However, their animadversions have not deterred the International Law Commission, the 1958 United Nations Conference on the Law of the Sea (UNCLOS I), UNCLOS III, and, most recently, the United Nations Conference on Trade and Development (UNCTAD), that the ``Footnote'' deems indeterminate. Once those indeterminacies have been identified, we need not despair of reformulating them in a less indeterminate language. Indeed, UNCTAD has already begun the process. In article 29 of the International Law Commission's 1956 Articles Concerning the Law of the Sea, which resembles article 5 of the Convention on the High Seas, the Commission formulated the requirement of the ``genuine link'' and permitted states to sanction other states by refusing to recognize their flags. The Commission's formulation was as follows: 1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. Nevertheless, for purposes of recognition of the national character of the ship by other States, there must exist a genuine link between the State and the ship. 2. A merchant ship's right to fly the flag of a State is evidenced by documents issued by the authorities of the State of the flag. The issue of recognition that the International Law Commission identified as providing a sanction behind the ``genuine link'' doctrine reflects the International Court of Justice's holding in the Nottebohm Case. In this case, the Court did not question the domestic law validating Liechtenstein's grant of nationality to Friedrich Nottebohm. It did, however, find that under international law it was not opposable to Guatemala who was not obliged to recognize the grant through the lack of a ``genuine link.'' The Court stated that: Guatemala had not recognized Liechtenstein's title to exercise protection in respect of Nottebohm. It then considered whether or no[t] the granting of nationality by Liechtenstein directly entailed an obligation on the part of Guatemala in regard to the exercise of protection. In the Commission's commentary on its formulation of the ``genuine link'' proposal, it observed (in harmony with the McDougal and Burke ``Footnote'') that it did not ``consider it possible to state in any greater detail what form this link should take.'' However, the Commission stressed that a State's grant of the right to fly its flag ``cannot be a mere administrative formality,'' and in this context it emphasized the need for an effective control of the ship. Regretfully, while the Commission accepted the fact that the formulation of regulations could ``not prevent abuse,'' the Commission added that it: [T]hought it best to confine itself to enunciating the guiding principle that, before the grant of nationality is generally recognized, there must be a genuine link between the ship and the State granting permission to fly its flag. The Commission does not consider it possible to state in any greater detail what form this link should take. This lack of precision made some members of the Commission question the advisability of inserting such a stipulation. But the majority of the Commission preferred a vague criterion to no criterion at all. While leaving States a wide latitude in this respect, the Commission wished to make it clear that the grant of its flag to a ship cannot be a mere administrative formality, with no accompanying guarantee that the ship possess a real link with its new State. At its 348th meeting, the Commission's members discussed the question of recognition and, although they did not mention the Nottebohm Case by name, they were clearly guided by its principle when they accepted Professor Scelle's observation that: It would be for third States to decide whether a genuine link existed between the ship and the State of new registration and consequently whether the ship was entitled to fly its flag. The situation was analogous to a disagreement between two States over the nationality of an individual. (3) The Nottebohm Case's Relevance to Flags-of-Convenience: Ocean Pollution Issues The Nottebohm Case turned on the issue of whether Friedrich Nottebohm's speedy naturalization as a national of Liechtenstein was ``opposable to,'' and so entitled to recognition by, Guatemala. The Liechtensteinian law of naturalization required that a qualifying individual had to be accepted into a ``Home Corporation'' (a Liechstenstein commune) and was required to produce documents showing a continued residence in the Home Corporation for upward of three years. Nottebohm arrived in the country of his adoption (Liechtenstein) in the beginning of October. He applied for admission as a national of Liechtenstein on October 9, 1939 and was accepted into the Commune of Mauren which conferred its citizenship on him on October 15, 1939. Furthermore, a document signed on behalf of the Principality, dated October 20, 1939, testified to the fact that Nottebohm had been naturalized on October 13 of

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that year. Upon the grant of Liechtensteinian nationality, Nottebohm promptly applied for and obtained a Liechtenstein passport. This was visaed by the Guatemala Consul General in Zurich on December 1, 1939. He was thus able to enter Guatemala as a Liechtenstein national in 1939. Prior to receiving his naturalization certificate, Nottebohm paid 25,000 Swiss francs to the Commune of Mauren and 12,500 Swiss francs to Liechtenstein. He paid an additional 1,000 Swiss francs as an amount owing for an ``annual naturalization tax,'' and further deposited 30,000 Swiss francs as security for his further obligations with respect to that tax. The International Court of Justice did not question the authority of Liechtenstein, as a sovereign state, to legislate its own rules regarding the conferral of its nationality. The Court stated this was a matter falling entirely within the state's domestic jurisdiction. However, the Court did hold that a state's claim to exercise protection of its citizens in the international arena (specifically, on whether Nottebohm's naturalization could be successfully invoked against Guatemala) depends on international criteria. In finding that the naturalization in this case could not be so invoked, the Court said: The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. This was so, failing any general agreement on the rules relating to nationality. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. In subsequent paragraphs, the Court amplified this criterion of the concordance between the legal bond of nationality and the social reality of the individual's nexus with the community by uttering emphatic phrases stressing the need for the individual's genuine linkage, in terms of reciprocal rights and duties, with the state of his nationality. The nationality conferred should appear as real and effective as the exact judicial expression of a social fact of a connection. The Court concluded with the observation that Nottebohm had not so much sought Liechtensteinian nationality to obtain ``a legal recognition of [his] membership in fact in the population of Lichtenstein'' as to become enabled to: [S]ubstitute for his status as a national of a belligerent State that of the subject of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations . . . and exercising the rights pertaining to the status thus acquired. (4) The Nottebohm Case and Subsequent Developments in the Law of the Sea Deliberations At UNCLOS I, the implicit grant of a right to refuse recognition to the nationality of a ship, when a state determined an absence of a ``genuine link,'' came under considerable criticism. Mr. Colclough (United States) observed that: The third sentence of article 29, paragraph 1, raised many questions. Did it merely mean that, if a particular State decided that a ship sailing under the flag of another State had no genuine link with the flag State, the first State was not required to allow the flag State to afford diplomatic protection to its ship? Or, did it mean that such a ship would become stateless, with all the attendant disadvantages?9 He added that ``in addition to producing direct consequences in public international law, non- recognition would also produce consequences in private international law,'' leading to insecurity in transactions. He pointed out that, among the practical difficulties which would result, were the adverse effects on property rights, ``the validity of contracts executed under the laws of the flag State, and maritime insurance.'' A majority of the Second Committee concurred with Mr. Colclough's criticisms. Those critics of UNCLOS I pointed out that any analogy between the nationality of individuals and ships was highly misleading and the reliance on such a metaphor would lead to ``disputes between States.'' The Second Committee, however, retained its requirement of the ``genuine link'' but deleted the clause conditioning a ship's nationality on its recognition by other states. This deletion of the central key role of recognition by other states in determining the relationship of the ship to its state of registry was potentially disruptive. This formulation was approved in the Tenth Plenary meeting and became incorporated into article 5 of the Convention on the High Seas. Article 5, with only some minor changes (but retaining the reference to the requirement of the ``genuine link'' between the flag state and the ship), was incorporated into article 91 of UNCLOS III. The final draft of the article followed the requirement of the ``genuine link'' in article 5 of the Convention, namely: ``in particular, the state must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.'' This obligation was, however, spelled out in article 94 under the rubric, ``Duties of the Flag States.'' Subsequently UNCTAD had proposed a new convention in 1986. This spells out, in much greater detail than did article 94 of UNCLOS III, the duties of the flag state with regard to its legal and administrative control of the ship in compliance with the ``genuine link'' metaphor. But this latest convention, like the Convention on the High

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Seas and UNCLOS III, does not raise the issue of giving other states a discretion as to recognizing the nationality of a ship based on the existence, or imputed absence, of a ``genuine link.'' The traditional, customary international law duty to recognize the ship's flag remains in place as a consequence of the conferral of the flag and papers by the state of registry. In fact, in UNCTAD's preamble, this new attempt to tackle the problem of effective control reaffirms in identical words the opening sentence of article 5 of the Convention on the High Seas. Far from raising the issue of recognition, the preamble provides that the Convention has been ``prompted by the desire among sovereign states to resolve in a spirit of mutual understanding and cooperation all issues relating to the conditions for the grant of nationality to, and for the registration of, ships.'' The implication to be drawn from this assertion in that the duty to recognize the conferral of nationality upon a ship remains unchanged and that a state may not look behind the flag. All that it purports to achieve is the imposition of a sanctionless duty on states when conferring the privilege of flying their flags. In the language of the Nottebohm Case, any grant of nationality to a ship by a state, and the consequential right of a ship to fly that country's flag, is appealable to every state and to all the world. b. Flags of Convenience as Responsibility-Avoiding Devices The great weakness of the present international law governing jurisdiction over ships and shipping stems from its present naive invitation to engage in legal fictions and responsibility-avoiding devices. Indeed, international law clearly encourages the avoidance of its own values, rules, policies and prescriptions as embodied in the concept of ``genuine link'' while it evades the obligation of making those rules and presumptions effective. For as long as shipowners find certain laws objectionable, they will feel encouraged to seek legal devices to evade the laws to which they object provided that no disagreeable consequences will result. When a law-avoidance practice becomes widespread, it generally comes to be supported by its own evolving morality which develops as an alternative to the traditional one embodied in the existing rule of law e.g., the relation between flags-of-convenience shipping and the fleets of ``traditional maritime states.'' While American business theorists would argue that American seamen are entitled to the best wages and conditions of labor they can bargain for with American shipping companies, the defenders of flags-of-convenience would argue that American shipowners are entitled to register their vessels under foreign flags in order to avoid paying the wages for which American seamen have bargained. The fictional and law-avoiding character of the flags-of-convenience device creates this further anomaly: The United States has entered into agreements with owners of flags-of-convenience shipping for the purpose of providing for ``effective United States control'' of such vessels in times of a United States emergency. In a book defending this policy, denominated ``Project Walrus'',10 the National Academy of the Sciences offers the following explanation: In the event of war it will be necessary to augment U.S. flag shipping. The Maritime Administration and the Navy Department have determined jointly that it will be practicable to bring a portion of the U.S.-owned foreign-flag shipping under direct U.S. control on the event of a national emergency. This effective U.S. control concept is a matter of expediency, rather than choice, and applies essentially to designated shipping under the ``flags of convenience.'' Determinations regarding effective control are not founded on governmental treaties. Assurances that specific ships will revert to U.S. control are given by the U.S. owners of the ships, not by the country of registry. Former U.S. flag vessels that were transferred to PanLibHon registry are under effective control as a result of stipulations in the transfer contract approvals granted by the Maritime Adminis tration. Less formal agreements apply to foreign-built shipping. U.S. owners can register foreign-built shipping under any friendly flag of their own choice, or transfer from one flag to another at will. In the case of foreign-built PanLibHon-flag ships, the Maritime Administration normally negotiates agreements with the U.S. parent companies that the ships will be made available to the United States in the event of a national emergency. This inherently self-contradictory assertion provides fruitful soil for the growth of a number of anomalous situations. On the one hand, the traditional international law doctrine of the freedom of the high seas can be invoked to justify the exercise of discretion (except insofar as this may be limited by some states' domestic law restrictions on the privilege of registering under their flags) by ships' owners in their selection of an appropriate nation of registry. Yet, on the other hand, permitting the United States to take over such ships, as if they were United States flagged vessels, ignores the accepted international rule of law that a ship's nationality is that of her flag and that she may not lawfully have a dual or multiple nationality. The policy embodied in ``Project Walrus'' is clearly intended to subordinate a ship's flag nationality to her ``effective control'' nationality. Accordingly, it appears to contradict the traditional rule and ignores the interests and obligations of the state of the ship's flag nationality. Furthermore, the issue of ``United States ownership and control'' of ships has gone beyond merely the issues of national defense and logistics. The question of whether the United States may exercise jurisdiction over foreign

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flag ships has since shifted to seamen's claims in federal courts. This development has given rise to a number of bizarre possibilities. The following provide instructive anomalies: 1. Contrary to international law, the ship may, in domestic courts, come to be recognized as having dual or multiple nationalities; or 2. Despite the flag the ship flies, her single nationality is her purportedly dominant one, namely that of her ``effective control.'' If this is to be the outcome, then articles 5 and 6 of the Convention on the High Seas (and articles 91 and 92 of UNCLOS III) are rendered ineffective in such cases; or 3. The ``effective United States control'' agreements entered into between the United States government and the owners of the flags-of-convenience ships should, necessarily, be regarded as ineffective, leaving the flags-of-convenience state in sole legal and validly effective control of the ship and leaving the United States without the authority over the ship stipulated for or the jurisdiction claimed; or 4. The flag-of-convenience state and owners of ships choosing such flags are entitled, by virtue of the ship's flag, to refuse to recognize or choose to be bound by, the ``effective United States control'' agreements, or to reject them as derogations from the flag state's sovereign authority under international law; or 5. States with which flags-of-convenience states may be in political contention, and which may have declared a blockade or ``quarantine'' against such states and their shipping, could choose to disregard the ``effective United States control'' agreements, arguing that such agreements do not bind third parties. They could then treat the vessels as belonging to the flag state and hence may, for example, seize the ships as lawful objects of high seas blockade and even prize in time of belligerent situations and relations. This ``enemy character'' of the ships in question would make a mockery of such factual considerations that they are engaged in the foreign trade of the United States (a neutral) and not that of the belligerent state which is being subjected to the quarantine or blockade by its enemy. Additionally, all five of these variables are relevant because they show how flawed the international and transnational accountability of states and enterprises for the catastrophes caused by the management of flags-of-convenience to the proposition, (that provides the supporters of flags convenience practice with its only juridically serious supportive argument) that a ship may only have one nationality: namely that of its flag. Flags-of-convenience vessels have dual or multiple nationalities. These flaws and contradictions, moreover, provide a handsome return to the states of flags-of-convenience registry and to the owners of such ships, but they constitute an environmental danger to the world community. c. Flags-of-Convenience and the IMO Civil Liability Convention A number of coastal countries have become signatories to the International Convention on Civil Liability for Oil Pollution Damage (CLC). The treaty was an outgrowth of a 1969 International Conference which addressed oil pollution damage from any escape or discharge from a ``seagoing vessel'' or any ``seaborne craft . . . actually carrying oil in bulk cargo.'' The CLC was designed to ``adopt uniform international rules and procedures for determining questions of liability and providing adequate compensation for vessel source oil pollution.'' Note should be taken of the CLC's selection of the owner of a ship as the party to be made liable under article 3. The owner has been defined as ``the person or persons registered as the owner of a ship, or in the absence of registration, the person or persons owning the ship.'' This represents a departure from the concept of the party liable in the Brussels Convention on the Liability of Operators of Nuclear Ships, and the other three conventions on the liability for nuclear harms which have been developed in the last decade. All of these look to the ``operator'', rather than to the ``owner'', as the accountable party. In the conduct of ships and shipping enterprises one frequently finds that the charterer (the ``operator'' of a ship) is more in control of her than is her owner. (There are various kinds of charter parties or agreements between the owner and the charterer of a ship.) Under bareboat or demise charters, for example, the manning, operation, provisioning and navigation of a ship are in the hands of the charterers--who are thus the parties who exercise control over the ship. The owner has effectively passed the control to them. The restriction of liability to the ``owner'' may look suspiciously like the creation of a straw man to answer for major maritime pollution catastrophes in light of the practice of owners of flags-of-convenience ships. In general flags-of-convenience practice, owners are often conduits and therefore, amount to little more than the name of a company which exists in a file drawer and on a brass plate. Their practice frequently has been, prior even to the ordering of the ship, to give long-term demise charters (fixed term leases, as contrasted with ``voyage charters'' or leases for a simple voyage and not fixed by a period of time) to the enterprises for whose benefit the ships were built in the first place. This contract provides the security for the bank loans needed to finance the cost of building the ship. The installments of the charter party (rent) are used to pay off the financial obligation incurred. The Torrey Canyon provided an example of this practice. She was owned by the Barracuda Corporation which demised the ship to the Union Oil Company (charterer). The charterer's payments were intended to defray the Barracuda Corporation's loan plus bank interest as well as provide a profit for the participants in the incorporation of

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Barracuda. Although, in a flags-of-convenience situation, the owner may be a judgment-proof straw man, the CLC's limitation of the party to be made liable to the ``owner'' may be salvaged by another provision. The Convention requires that the parties to it should issue a certificate to each tanker it registers, which indicates that she carries a form of insurance or guarantee adequate to compensate persons harmed by oil pollution casualties. The Convention also provides for a right of direct action against the insurer or other guarantor. States should, however, be aware of the problem of the financial capability of the insurers or guarantors named in certificates issued by foreign countries to meet the obligations imposed by the Convention. May not some countries with flags-of-convenience facilities be prepared to grant certificates of financial capability on the basis of more flimsy credit and assets than would the ``traditional maritime States,'' and may not the ``Gresham's law'' of maritime insurance come into being through flag-of-convenience temptations? Article 7, paragraph 7, of the CLC provides for consultation on this important point at the initiative of a contracting state. But what should be that country's next step if the consultations, in its view, should turn out unsatisfactorily? Should that country bar vessels from its ports that it regards as potentially unable to meet the scale of compensation provided for in the Convention? Could it refuse to honor the certificate of financial capacity? If such an amelioration of the law on the books as presented by the Convention were accompanied by such a deterioration of legal responsibility on the high seas by virtue of giant tankers remaining outside that Convention's regime of responsibility, then indeed, we all would have to ``build swimming pools''--if we could get enough clean water to fill them. d. Conclusion The use of flags-of-convenience could render the owners of giant tankers (of ever-increasing tonnage and risk to the environment) effectively judgment proof, as a matter of fact, from liability for harms they cause. Also, as the world's giant tanker fleet continues to age, more and more ships become less and less safe. This development is an inevitable consequence of tanker economics. As ships age they tend to become the property of less scrupulous owners, who, in order to glean their profits, make cuts in their ship's maintenance and so in their environmental protection costs. Thus, in order to earn a precarious living, these vessels will increasingly become menaces on the high seas, creating disasters afloat and on the shoreline. Hence, the privilege of registering ships under permissive flags-of-convenience will increasingly create more severe problems, in the context of the environment and of liability, than that practice has done in the past in terms of United States labor-management issues on the waterfront and in the maritime industry. As The Economist has pointed out, it is doubtful whether Liberia, for example, has the means, even if it had the will, to prosecute breachers of the CLC regulating (and eventually prohibiting) the pumping out of oily ballast onto the common high seas of mankind. This juxtaposition of the flags-of-convenience issue with the ``tragedy of the commons'' points to the need for new controls as well as new standards. Usually the participants in the common right welcome the development of a regulatory system for the utilization of their common resource which effectively restrains each from inexorably working against both the good of all the other users and against their own long-term advantage. But where even the most insignificant party who stays outside the proposals for the rational regulation and protection of the commons has the capacity of destroying the regulatory system, there remains a threat to the integrity of the commons. Furthermore, the gains by the party who holds out against the system will supply the incentive for others to quit and join the free-for-all. At the very least, non-participation permits the non-participant to reap advantages from the regulatory system's restrictions and imposition, inevitably, of increased operating costs on all the other participants. It is on these grounds that flags-of-convenience have increasingly proved attractive to some ship owners. The owners of such shipping operate on the joint assumptions of: (1) the existence of a regulatory system (for example an anti-dumping or an anti-pollution convention) that ties the hands of the maritime nations that honor it; and (2) the effectiveness of the anomalies inherent in the flags-of-convenience system to permit the flags-of-convenience owners to be loosened from the restriction of such a regulatory system. They can thus directly profit from that system's restraints on others. (In such a context, of course, a flags-of-convenience state can become a party to violation of an anti-pollution convention. It is merely anticipated to fail, conspicuously and consistently, if not conscientiously, in performing its treaty obligation to police effectively the contaminating proclivities of ships privileged to fly its flag.) In this way, the anomalies created by resort to flags-of-convenience can undermine the effectiveness of international conventions directed to preventing, or at least greatly reducing, the incidents of the pollution of the sea by ships. Resort to flags-of-convenience thus exacerbates the tragedy of the already polluted common high seas and creates the condition for undermining any regulatory attempts to rationalize the use of that common resource. This is, surely, a classic examp le in the context of maritime environmental protection as ``Gresham's law'' was in precious metal currencies, that bad practices tend to drive out good when external restraints

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either do not exist or are ineffective. C. Fishery Conservation 1. The Law of the Sea Convention11 One of the most significant threats to marine life is pollution of the marine environment. That pollution originates in many ways and in many places. No state is in a position to solve the problem alone, even off its own coast. Widespread ratification of the Convention is likely to promote greater protection from pollution. The biological boundaries respected by most stocks of fish in the wild have little in common with the political boundaries drawn by states. What is required is consistent management of ecosystems and fish stocks throughout their migratory range. No general convention can achieve that. But the Convention at least makes clear that economic zones are not the end of the inquiry, and that sound management is required on the basis of biological characteristics.12 Unless management is coordinated, fishing outside a state's zone can prejudice both its conservation measures and the economic preferences accorded its fishermen within the zone. The 1992 Rio Conference called for international negotiations on the matter, which are now under way. The future of the Convention, and the stability of the law of the sea, may depend on the willingness of governments to negotiate constructively in this regard. General legal rules must be applied to specific regions in any event. In some regions it may be easier to resolve the problem directly by agreement among the states concerned with fishing in that area. Such an agreement was recently negotiated with respect to the so-called doughnut hole that is completely surrounded by the economic zones of Russia and the United States in the Bering Sea. The Convention expressly makes the right to fish beyond the economic zone subject to the rights, duties and interests of the coastal state provided for in connection with the economic zone. Fishing beyond the economic zone is subject to compulsory arbitration or adjudication. Tribunals are empowered to prescribe provisional measures ``to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.'' Should resort to Convention procedures fail to yield compliance, there is established doctrine regarding the right of a state to respond to violations of a treaty by another party without challenging the integrity or binding force of the treaty as such. This approach should be contrasted with the momentous consequences for the future of the Convention and the law of the sea if states that have yet to ratify the Convention were now to make new unilateral claims over the waters beyond the economic zone. They would bear a heavy burden were they to destroy the practical opportunity the world now has to accept an agreed framework governing all the uses of all the oceans. 2. Driftnet Fishing on the High Seas13 Many nations have recently emphasized concern over the use of very large driftnets on the high seas. Driftnets are not a new type of fishing gear; they have been used for centuries to harvest marine animals. In the past ten years, however, high seas driftnet fishing has increased significantly and employed considerably larger nets than previously.14 Much of the increase derives from fishing effort displaced due to the expansion of national jurisdiction to 200 nautical miles. Despite this preoccupation with high seas driftnet fishing, this gear is in common use within waters subject to coastal state jurisdiction. For example, it has been estimated that in the North Pacific alone the amount of driftnet gear employed within 200 miles of any coastline was three times as great as that employed on the high seas outside national jurisdiction. Gear used within 200 miles of a coastline is subject to national regulation, assuming the area has been enclosed within national jurisdiction, and is therefore subject to national management for length, location, time, and duration of placement, composition, associated gear, and so forth. The problem with high seas driftnet gear is that there is no assurance of regulation and enforcement. It is known that the total length of nets and total amounts deployed are very large. The recent increased attention to fishing with high seas driftnets does not, for the most part, rest on scientific knowledge about the impact of this gear on marine animals. With the possible exception of the effects of driftnet gear on salmon populations in the North Pacific, there does not appear to be an accepted body of knowledge about the effects of driftnets on particular target species, on incidentally affected species, or on the marine ecosystem as a whole. At this writing, the public furor over the use of high seas driftnets is not supported, with the exceptions noted, by an established body of scientific information about effects on population abundance and structure. Particular efforts to remedy this uncertainty are now under way in some areas, partly as a result of national legislation demanding better information. This lack of information, and scientific efforts to produce improved data,

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underscores the relevance and applicability of some of the international legal principles mentioned below. A concluding section comments on the problems of high seas fishing in general and on the need for means to resolve the conflicts that arise, which involve driftnets as well as other issues. In light of this general concern, the purpose of this discussion is to identify and to examine the international legal issues involved in coastal state efforts (individual and collective) to regulate or ban the use of pelagic driftnets on the high seas, i.e., beyond 200 miles. The legal issues arise from the principles of international law claimed to be applicable to this fishing. The aim is to discuss such principles without attempting to demonstrate the validity or invalidity of the claims that might be made. In particular, it is not the purpose to attempt to argue the application of any of the legal principles to particular problems of current interest. The categories of relevant international law principles include those (a) imposing obligations on fishing states owed to all other states, (b) establishing duties owed to coastal states with jurisdiction over waters adjacent to the high seas, and (c) imposing obligations assumed by bilateral or multilateral treaties. Fishing states may als o invoke specific principles of the law of the sea, particularly those asserted to protect high seas fishing operations from the exercise of other states' jurisdiction. According to the 1982 Convention on the Law of the Sea (``CLOS''), the international law principles applicable to driftnets on the high seas embrace the obligations that fishing states owe to the general international community of states: --to take the necessary measures to conserve the living resources of the high seas;15 --to cooperate with other states in taking measures to conserve such resources; --to enter into negotiations with other states fishing the same or different resources in the same area ``with a view to taking the measures necessary for the conservation of the living resources concerned'' --to contribute and exchange scientific information, catch and effort statistics and other data regarding conservation of stocks on the high seas; --to take measures ``designed, on the best scientific evidence available to the states concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors. . . '' --to ensure that the measures adopted are nondiscriminatory against the fishermen of any state [and] --to observe treaty obligations they have undertaken. It is also possible that each of the above substantive principles (except the last) may be considered a principle of customary international law and thus have a binding effect on fishing states. An additional principle, related to all of the above, is the obligation not to abuse the rights and freedoms of the high seas while exercising those rights and freedoms.16 Flag states activities on the high seas are protected only to the extent that they are reasonable in relation to others' uses similar or otherwise. High seas fishing states also have obligations to coastal states concerning animal populations that are subject at some phase of their life cycle to coastal state jurisdiction. Assertions have been made invoking the principle that high seas fishing states are obliged, by agreement17 and perhaps by customary law, to observe coastal state conservation regulations affecting high seas fishing for particular species. The coastal state regulations potentially or actually applicable include those addressed to shared stocks, particularly those which are common to coastal state jurisdiction and to the high seas (straddling stocks), anadromous species,and highly migratory species. The provisions applicable in these instances are in Parts V, VII, and XV of the 1982 Convention on the Law of the Sea. States fishing on the high seas may also be bound by agreements with other states. Such agreements specifically address driftnet fishing on the high seas and may deal with activities related to driftnets. Activities related to driftnets and potentially affected by such agreements include loss or disposal of driftnets at sea and practices to be employed in their use at sea. Regulations regarding use include provisions for scientific observers to be employed aboard driftnet vessels, for carrying equipment designed to record the location of vessel operations, for record-keeping regarding such fishing, and for subjection to boarding and arrest. The major multilateral agreements relating to driftnet regulation include the London Dumping Convention and the 1973/78 International Convention for the Prevention of Pollution from Ships (MARPOL), Annex V. These agreements pertain to the dis posal or loss of driftnets. Proposed restrictions on driftnets as a harvesting method meet objections based on international law principles safeguarding the independence of vessels conducting fishing activities on the high seas. Such principles include freedom of fishing and freedom of navigation on the high seas. It is argued, for example, that the customary international principle of freedom of the seas protects fishing vessels of any State from any interference with high seas fishing by another State.18 Similarly, it is asserted that freedom of navigation prohibits imposition of any

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requirements to install particular equipment on fishing vessels on the high seas. Acceptance of observers on board high seas fishing vessels or agreement to use special monitoring equipment are apparently regarded as inconsistent with the principle of freedom of the high seas and an intrusion on national independence. Some of these arguments might also be made in the context of freedom of navigation in the exclusive economic zone. Principles about piracy at sea have been frequently mentioned in public statements by some public officials but will not be discussed here because they have no relevance to any of the problems of high seas driftnet fishing. Even if it were established that driftnet fishing on the high seas amounted to theft of property, which has not been the case, the law of piracy would not be applicable. Statements of this kind are made for political effect and internal national consumption; they have no application here. a. Rights of High Seas Fishing States Article 2 of the 1958 Convention on the High Seas embodies the general understanding, also considered to be part of customary law of the sea, that the freedoms of the high seas include the freedom of fishing in this area. This freedom, as all others on the high seas, must be conducted with reasonable regard to the interests of others in their exercise of the same or other freedoms of the high seas. Freedom of fishing has traditionally extended to all types of fishing gear, without exception. Article 1 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas contains a more qualified formulation of the rights of states to fish on the high seas, declaring: 1. All States have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas. 2. All States have the duty to adopt, or to cooperate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. Although Article 1 is in a treaty which has not been widely adopted, Paragraph 2 at least is now considered as part of customary law. As noted more fully below, the International Court of Justice in the Fisheries Jurisdiction case (UK v. Iceland) declared that a high seas fishing state must take full account of necessary conservation measures in conducting its operations. The most recent multilateral agreement dealing with freedom of fishing on the high seas affirms this right once again and confirms that states generally are agreed on the obligations that burden this right. Part VII of CLOS deals with the high seas. Article 87, entitled ``Freedom of the High Seas,'' provides: 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by the Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: . . . (e) freedom of fishing, subject to the conditions laid down in 2; . . . Article 116 of CLOS repeats Article 1 of the 1958 Geneva Fishing Convention in declaring that ``all States have the right for their nationals to engage in fishing on the high seas. . . ,'' but adds significant new conditions that are relevant, inter alia, to high seas pelagic driftnets, as discussed below. While it is evident that the principle of freedom of fishing on the high seas continues to protect this activity, it is also evident that conditions burden the exercise of this right and need to be taken into account in relation to the use of driftnets (or the use of other fishing gear on the high seas). b. Obligations of High Seas Fishing States to the General Community of States (1) Obligation to Conserve the Living Resources of the High Seas The decision in the Fisheries Jurisdiction case establishes the principle that states fishing on the high seas have the duty to attend to the needs of conservation of the living resources affected. In a passage from the Fisheries Jurisdiction case, the International Court of Justice declared, in reference to fishing in an area which the majority considered part of the high seas: [E]ven if the Court holds that Iceland's extension of its fishery limits is not opposable to the Applicant, this does not mean that the Applicant is under no obligation to Iceland with respect to fishing in the disputed waters in the 12-mile to 50-mile zone. On the contrary, both States have an obligation to take full account of each other's rights and of any fishery waters. It is one of the advances in maritime international law, resulting from the intensification of fishing, that the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all. Consequently, both Parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information, the measures required for the conservation and development, and equitable exploitation, of those resources, taking into account any international agreement in force between them . . . .

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Although this duty was first enunciated in the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, it is no longer considered only a treaty obligation binding the parties to that agreement, but has become a general obligation owed to the community of nations as a whole. Elaborating on the Court's pronouncement quoted above, Judge Dillard's concurring opinion in the Fisheries Jurisdiction case observed: ``Although Iceland was not a party to this [1958 Fishing] Convention it is yet possible to surmise that, in light of the practice of States and the widespread and insistent recognition of the need for conservation measures that the principle it announces may qualify as a norm of customary international law. . . .'' Since the Fisheries Jurisdiction decision in 1974, the negotiations for CLOS produced still further evidence of the general acceptance of the obligation to conserve high seas living resources. Article 117 provides, ``All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.'' Thus, irrespective of another state's involvement in a high seas fishery, a state whose nationals fish on the high seas is obliged to adopt conservation measures for its own nationals. These obligations are now embodied in customary international law. The state or states to whom the high seas fishing state is obliged is not specifically identified in the provisions of the various treaties. However, the injunction to have due regard to the interests of other states appears to establish that another state (not necessarily another fishing state) with an interest may secure redress for nonobservance of the obligation involved. In the Fisheries Jurisdiction case, the Court found that the United Kingdom's interests had been infringed by Iceland as a coastal state in exercise of its freedom of fishing, but indicated that ``due regard'' also extended to the interests of other states. In the context of driftnet fishing, the obligation to conserve the living resources of the high seas harvested by this gear extends, therefore, to other states with an interest in the resources affected. As will be further noted below in more detail, other articles of CLOS also make provision for conservation obligations on the part of a high seas fishing state. Article 116(b) places a burden on the high seas fishing state with respect to Articles 63(2), 64, 65, 66, and 67 by specifying that the right to fish on the high seas is subject to the ``rights, duties as well as the interests of coastal States provided for, inter alia,'' in these Articles. That coastal states have an interest in conserving the stocks mentioned in such articles goes without question. In short, the 1982 Convention makes it clear that high seas fishing states have the duty to take conservation measures on the high seas, either for their own nationals alone or in cooperation with other nations for their nationals together. That these obligations are not simply on paper is evident from the actions, including recent ones, of high seas fishing states in conjunction with other concerned states. The most recent indications of state expectations about obligations to conserve on the high seas include: the South Pacific negotiations concerning driftnets; the reactions of the fishing states of Japan, South Korea and Taiwan to demands for international measures; the FFA Convention on the Prohibition of Driftnets, the Organization of Eastern Caribbean States declaration on driftnets; and the US legislation and subsequent bilateral agreements with Japan, South Korea, and Taiwan. Prior to the international pressure in the South and North Pacific, the states concerned, (except Japan in connection with salmon) gave little indication of a felt obligation to introduce conservation measures. There has been much discussion of the effect of a UN General Assembly resolution on international law. One scholar and former Judge of the International Court of Justice has condensed the possible effects of UN resolutions to four: (a) they may be binding within the legal order of the international organization concerned, for example, upon the organs of the United Nations; (b) they may influence the formation of new international law and so constitute a step in the emergence of new rules; (c) they may be persuasive evidence that rules of international law, as defined in the resolutions, exis t; (d) finally, their most far-reaching effect may be a legislative one creating new international principles or rules firstly for member States and secondly for the international community as a whole. In sum, states generally, including high seas fishing states, recognize the obligation to take measures aimed at conservation of the living resources of the high seas, but the evidence is that the obligation is to act in light of the best available scientific evidence. A requirement to cease harvesting, without any evidence for a conservation need, does not yet exist. These points are further developed by a discussion of the meaning of the term ``conservation'' with respect to the obligation to conserve the living resources of the high seas as well as a discussion of the scientific basis for high seas conservation measures. (a) The Interpretation of ``Conservation'' with Respect to the Obligation to Conserve the Living Resources of the High Seas

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Thus far there do not appear to be conflicting views about the objectives of conservation measures directed at living resources taken by high seas driftnet gear. An issue could arise if some fishing states contend that the only acceptable regulations are those which aim to maximize the sustainable yield, while other states, including other fishing states, take the view that conservation measures may place limits on catch such that the yield is less than the maximum sustainable. The only authoritative source of guidance on this appears to be the Convention on the Law of the Sea. CLOS contains important innovations in its provisions for the conservation of living resources, including those for high seas living resources. Article 119 provides: 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global; (b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. 2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned. 3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State. The most significant innovation of Article 119 is that it permits departure from Maximum Sustainable Yield (``MSY'') as the goal of conservation measures. Such departure has the intent of providing that relevant environmental and economic factors may be used to determine the level of stocks to be maintained in a fishery. In practice this enables the adoption of measures that provide for a higher level of stocks than might have to be maintained to produce the MSY. The resulting increased stock density permits a higher catch per unit of effort, which translates into lower costs and greater net returns to the harvester. The price for this achievement is to lower the total catch. In the case of a high seas fishery, this means there are less fish to be shared among the fishing states concerned. The overall returns might be greater, but because of different costs to different national fleets, the net returns might be less to some. It should be emphasized that in this context, as well as in others, there may be sound environmental or economic reasons for measures which seek the lower level of abundance that will produce the maximum sustainable yield. Nonetheless, there may be disputes about the alternative measures of abundance allowed by Article 119. Article 119 does not require that the states concerned with high seas conservation determine an allowable catch for the stocks of interest, although it does not exclude this form of regulation either. The article leaves it to the states concerned to determine the nature of the conservation measures, if any, that should be employed in the fishery. It goes without saying that prohibiting any use of driftnet gear is not directed by this article, nor is it excluded. It is also clear from Article 119(2) that high seas driftnet fishing states must make an effort to acquire information about species associated with or dependent upon harvested species and must take into consideration the effects on such species. Driftnet technology is known to kill substantial quantities of marine mammals, therefore this obligation is an important one. The substantive conservation obligation which must be considered for associated or dependent species is to maintain or restore populations ``above levels at which their reproduction may become serious threatened.'' Although this obligation permits substantial takings, it also may require a considerable research effort, since both the population abundance of high seas species and the effects of the driftnet gear on such populations may be difficult to determine. (b) The Scientific Basis for High Seas Conservation Measures The standard of scientific evidence relating to conservation measures on the high seas is in Article 119 of CLOS. This language is similar but not identical to that in Article 61(2) which spells out the authority of coastal states within their EEZ. In both instances the decision-maker is to employ the best scientific evidence available. This formula is clearly relative, demanding only the best available evidence, not the ``fullest'' or ``complete''

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or the best that could be conceived. Accordingly, this standard does not necessarily place a great or an imposing burden that must be discharged before the necessary conservation measures can be taken by coastal or high seas fishing states. Taking action to conserve does not require these states to come up with definitive studies or assessments of the data about a particular fishery problem, that allegedly involves excessive exploitation. It has long been recognized that in particular contexts, information about catch statistics, population structures, characteristics of life history, population abundance, relationship to other species, interaction with the marine environment as a whole, long-term cycles, and other crucial data is difficult to obtain. Relevant information is sometimes scarce, produced by uncertain methods, of variable quality, and subject to divergent interpretations. In such a context, an absolute standard of scientific verity would inevitably mean a non-existent regulatory system, leaving the fishery or fisheries to continued exploitation no matter how probable it was that excessive harvests are being taken. The ``best available'' standard permits the use of poor evidence to justify conservation measures concerning a specific fishery, if that evidence were the best available. This may have some special importance in connection with high seas driftnet fisheries, which may occur in remote areas, where the preceding investigations have been sketchy and doubtfully representative, and where the coverage of investigations may be thin in relation to the size of the area of exploitation. Even this information, as poor as it may be, might be superior in quality relative to the initial efforts by regularly constituted scientific teams brought in for hurried studies. However, it may develop that the ``best available'' standard triggers regulatory activity that would otherwise await more systematic or complete investigation. Although this standard for scientific evidence appears to be widely accepted, its invocation in the 1989 UN Resolution on high seas pelagic driftnets raises questions. This Resolution can be interpreted, and probably should be interpreted, as recommending action regarding high seas driftnet use without the necessity of support from any information at all, scientific or otherwise. The following paragraphs address this with respect to the 1989 UN Resolution. In a preambular paragraph, the 1989 UN Resolution recognizes ``that any regulatory measures to be taken for the conservation and management of the living marine resources should take account of the best available scientific data and analysis[.]'' Enjoining that decision-makers must take into account this evidence is not necessarily the same as saying that they must take measures based on this evidence. Indeed, operative paragraph 4(a) recommends that all states agree to moratoria by June 30, 1992, on high seas driftnet fisheries even in the absence of any information about the effects of fishing on specific stocks or on the marine ecosystem generally. A moratorium is to take effect if certain events have not occurred, i.e., if effective conservation and management measures are not in place. Thus, a moratorium might be agreed on pursuant to the 1989 UN Resolution even if there is no scientific evidence presented that indicates a sound basis for termination of the specific fishery. Inaction alone leads to the end, at least temporarily, of the fishery. In addition, the institution of conservation measures need not be based on the best available scientific evidence. According to Paragraph 4, the measures may be introduced on the basis of ``statistically sound analysis.'' This is not necessarily the same as ``best scientific evidence available'' and may be inconsistent with such evidence. It is conceivable that such an analysis would take account of the best evidence available, but there is no requirement to this effect unless one is implied from the preambular paragraph or from operative paragraphs 2 or 3. Even if the term ``sound statistical analysis'' is understood to be qualified by the requirement that the parties use the ``best scientific evidence available,'' it is also provided that the analysis must be ``jointly made by the concerned parties.'' This appears to mean that the soundness of the analysis and the quality of the evidence is to be left to the combined judgment of the several concerned states. If one or more of these states does not concur in the analysis, or has a different view of the evidence, the effect is to obstruct the production of the analysis. This could occur despite very good data and analysis. Since the analysis is the key condition to maintaining or resuming a fishery, the attitudes of the states concerned are critical. It seems possible that actions might be taken based upon less than the best scientific evidence available. It is an additional complication that in the 1989 UN Resolution, the aim of the measures to be taken is not limited to conservation but also includes ``[preventing] unacceptable impacts of such fishing practices on that region.'' Since ``unacceptable impacts'' is not defined and carries no generally accepted meaning, it is not clear what facts or information are to be considered the ``best available scientific evidence.'' The 1989 UN Resolution distinguishes such impacts from ``conservation,'' therefore the normal evidence that bears upon conservation does not appear to be involved. The UN Resolution actually reverses the normal burden of proof to require that conservation measures be in place before the available scientific data supports specific action and before fishing may begin or be continued. In this context, the provision for employing sound statistical analysis may be a sensible alternative. Without adequate

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data, statistical inferences are a viable alternative where the failure to take any action at all results in the termination of a fishery. However, adhering to the 1989 UN Resolution does not diminish the value and need for scientific evidence relating to proper conservation and management measures when such evidence becomes available. In sum, the 1989 United Nations Resolution appears to obscure the meaning and utility of the principle of using the best scientific evidence available. To illustrate the problem, population estimates of affected marine mammals in the high seas squid driftnet fishery in the North Pacific may not be available for a long time to come. In that circumstance, it will be difficult to assess the impact of the known incidental take. In this instance, and perhaps others, it may be that the only way to continue the driftnet fishery is to adopt conservation measures based on statistical analysis. The latter may have little to do with the real world, because the numbers involved may be somewhat arbitrary, but it may be the best that can be done at the time. (2) The Obligation to Cooperate with Other States in Taking Conservation Measures The previous discussion shows that the obligation to conserve living resources in the high seas is clearly spelled out in the CLOS, most particularly in Article 117, and is probably also considered to be a customary law principle. In the Fisheries Jurisdiction case, the International Court found that, due to their respective rights in the high seas areas involved beyond 12 miles, the parties were required ``to examine together, in the light of scientific and other available information, the measures required for the conservation and development, and equitable exploitation, of those resources....'' In addition to this specific form of cooperation flowing from the simultaneous rights in the high seas, the Court found that the parties were to engage in negotiations to resolve the dispute between them and directed them to do so. Cooperation can, obviously, take many forms, and is not exhausted by any single activity, whether parallel or joint or coordinated. In the case of driftnets there has already been significant cooperative activity of various kinds between the various states concerned, at bilateral, regional and global levels, which might be taken as evidence of a perceived obligation to cooperate. Japan, in particular, has long been involved in research regarding its salmon driftnet fisheries in the North Pacific, in discussions regarding this research, and in negotiations to deal with the impacts of this fishery on various stocks. More recently, several North Pacific states have reached bilateral agreements with the United States on a variety of measures to develop scientific information regarding the squid driftnet fishery in this region. The general record of international cooperation in seeking to cope with conservation of marine resources on the high seas is, of course, quite substantial and does not need detailed discussion. To do so would virtually entail a history of fishery conservation for several decades. Practically every coastal nation in the world interacts in some fashion with other nations or international institutions concerning fisheries adjacent to their coast or of significant concern elsewhere. These forms of cooperation embrace a wide range of activities, including exchange of information and views, in both bilateral and multilateral fora, separate adoption of parallel policies and positions, exchanges of scientific personnel and information, discussions concerning issues of common concern, formal participation in joint scientific investigations, participation in national and international scientific gatherings, international (bilateral, regional, multilateral, global) negotiations, and specific agreements of various kinds and levels of formality, including those for establishing better cooperation. The most recent evidence of individual and collective national concerns over fishery conservation is afforded by CLOS. Almost all states in the world participated in this most extensive cooperative effort to date dealing with conservation of living resources. Although the problem was intensely political and controversial, and involved large stakes for fishing and coastal states, the effort to negotiate relevant principles for fishery conservation was successful. Many of the principles in this agreement, as suggested elsewhere in this article, reflected and now reflect customary law of the sea. (3) The Obligation to Negotiate Conservation Measures Article 118 of CLOS sharpens the expression of the duty to cooperate in conservation to specify that high seas fishing states must negotiate ``with a view'' to taking the necessary conservation measures. This duty arises both where the nationals of different States take identical living resources or where they take different resources in the same area. Specifying an obligation to negotiate is a different burden than simple cooperation, which might be shown by other activities. It is more demanding. An obligation to negotiate does not require an agreement, but it does mandate good faith in the attempt to remove differences and reach substantive agreement. The identification of cooperation with negotiation is not new in the context of high seas fisheries problems. In the Fisheries Jurisdiction case the Court linked the obligation of the United Kingdom and Iceland to cooperate regarding the high seas fishery to negotiations as the means of resolving their differences. The Court repeated the declaration it made in the North Sea Continental Shelf Case that negotiation is a special application of a principle recognized in the United Nations Charter Article 33 as one of the methods for settlement of disputes.

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In the context of high seas pelagic driftnets, there is ample evidence that the parties involved have engaged in negotiations, as well as other forms of international cooperation. Some long established international agreements are concerned with pelagic driftnets and recently, special agreements have been reached to implement measures concerning use of high seas driftnets and to lay a basis for further cooperative action. (4) The Obligation to Generate and to Contribute Scientific Information about Stocks Being Fished on the High Seas The obligation to conserve fisheries exploited on the high seas seems necessarily to imply that the flag state has the corresponding responsibility to undertake the necessary scientific investigation to inform an adequate conservation program. Unless this state also has the duty to develop the scientific basis for such a program, including knowledge of the significant effects of such fishing on species and stocks caught incidentally to the target fishery, it could hardly carry out the basic obligation to conserve. The evidence is overwhelming that conservation measures for living marine resources are formulated to take account of scientific investigations carried out by individual nation states involved in the use of such resources. Many coastal and fishing states have entered into limited multilateral agreements on conservation of fisheries and marine mammals. The agreements often provide for an institutional mechanism for cooperation among the states concerned and specifically call for scientific undertakings by the member states to provide a basis for conservation measures to be recommended by the agency thus established. In a few instances states have created independent scientific staffs to carry out the necessary scientific work, but this has been the exception. The standard approach to international cooperative activity has been to have the necessary scientific investigation performed by scientific entities within the member states, followed by consultations and discussions regarding the results of the research and, sometimes, by joint recommendations to the nations involved. It is therefore not surprising that the 1958 Geneva Convention on Fishing and the Conservation of the Living Resources of the High Seas, which is the first effort at general multilateral agreement on the subject, assumes, rather than directly provides, that states are responsible for the necessary scientific study underlying conservation measures they are obligated to implement on the high seas. It is impossible to read this agreement and understand the undertakings specified without assuming that high seas fishing states have the burden of doing the scientific research required for imposing conservation measures in the areas involved. The treaty is otherwise meaningless. Similarly, the customary law obligation to take conservation measures when the flag state's vessels fish on the high seas would be without meaning if that state did not also have the duty to develop scientific knowledge of the fishery being prosecuted. These considerations help to explain the decision of the International Court in the Fisheries Jurisdiction case, which may be cited again as recognition of the obligation of the high seas fishing state (and the interested coastal state in that case) to ``keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information, the measures required for the conservation and development, and equitable exploitation, of those resources....'' The Court noted that in resolving the dispute by negotiation between them and thereby establishing catch and effort limitations ``necessitates detailed scientific knowledge of the fishing grounds.'' ``It is obvious that the relevant information and expertise would be mainly in the possession of the Parties.'' CLOS is unequivocal in placing the responsibility for fisheries research on coastal states within the exclusive economic zone where it has sovereign rights and upon high seas fishing states (in addition to coastal states) for fishing on the high seas. CLOS not only provides that the coastal state has sovereign rights for the purpose of conservation of the living resources of the EEZ, which limits authority for the purpose to the coastal state, but also it specifically provides that only the coastal state has authority to regulate and to conduct fishery research in the EEZ. A state fishing in the EEZ may be required to do fishery research in the zone, but Article 62(4) declares that this is subject to the authority and control of the coastal state. In short, there is no question that the obligation to conduct research in the zone rests with the coastal state which has the duty there to carry out conservation of the resources. The EEZ situation is analogous in the high seas. The responsibility for conservation measures is placed upon high seas fishing states. Article 117 requires such a state to take the measures necessary for conservation. Unless these words have lost their meaning, this directs a high seas fishing state to produce or acquire the data, perhaps requiring direct research, that is necessary for conservation action. Article 119 is similarly unequivocal in requiring the production and distribution of scientific information concerning high seas fisheries: Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned. As the Court remarked in the Fisheries Jurisdiction case, it is obvious that the relevant information would be

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in the hands of those harvesting the living resources. c. Obligations of High Seas Fishing States to Coastal States CLOS contains provisions which establish obligations for states fishing on the high seas for certain living resources that also occur in areas subject to coastal state jurisdiction and therefore are shared with the coastal state. Articles 63(2), 64, and 66 set out obligations for conservation on the high seas and would be applicable to fishing with driftnets if applicable at all. Article 63(2) requires a high seas fishing state and a coastal state to seek agreement where the stocks being fished on the high seas are also found within the exclusive economic zone. The obligation is to seek agreement on conservation of the shared stock in the adjacent area, i.e., high seas. Article 64 refers to another specific instance of shared stocks: highly migratory species which are fished within the exclusive economic zone as well as in the high seas. Under Article 64, the high seas fishing state and the coastal state in a region are to cooperate ``with a view to ensuring conservation. . . [of] such species throughout the region[.]'' The latter three words contemplate that conservation measures here would be applicable on the high seas and also in areas subject to national jurisdiction, although the measures perhaps need not be identical. Article 66 concerns anadromous species and provides, inter alia, that the state of origin has primary interest in and responsibility for such stocks. The state of origin is to establish regulatory measures for fishing within its EEZ and on the high seas beyond, including total allowable catches. The high seas fishing state and the host state of the anadromo us species shall maintain consultations ``with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks.'' An obligation of the high seas fishing states under Articles 63, 64, 65, and 66 differs from those previously discussed because it is owed to specific states rather than to the general community of states. Furthermore, these Articles, coupled with those on the high seas (Articles 116-120), provide that the high seas fishing state is not competent to decide alone on conservation measures for high seas fishing under the circumstances set out in these Articles. A coastal state is a necessary associate of the high seas fishing state when it takes species subject to the coastal state's rights, duties, and interests. These various Articles concerning shared stocks might be considered to be supplemental in nature because if the high seas driftnet states and the coastal states cooperate and negotiate successfully, i.e., adopt and implement an effective regime of conservation measures, there would be no need for resort to any other principles of international law to resolve conservation difficulties. But if these states are unable, by acting together, to take measures necessary for conservation of living resources on the high seas, coastal states might invoke these other principles in CLOS to justify unilateral imposition of conservation measures on harvesting stocks on the high seas. At present, this seems unlikely but it is not beyond the realm of possibility. Accordingly, the following discussion examines the implications of the aforementioned Articles in relation to possible coastal action taken to achieve conservation of the high seas stocks involved. d. Conclusion As a result of the combined effect of state practice in extending national jurisdiction and the conclusion of CLOS, including the decision to provide for a 200-mile EEZ, fishing activity on the high seas has increased significantly. Some entirely new and high productive fisheries have developed because of the loss of fishing opportunities within the new areas of national jurisdiction. The squid driftnet fishery in the North Pacific, initiated by Japan and joined by South Korea and Taiwan, coincided with the progressive exclusion of foreign fishing from the US EEZ in the North Pacific. Similarly, the development of the pollock fishery in the high seas enclave in the central Bering Sea (the doughnut hole fishery) came about as fishing for that species elsewhere in the Bering Sea, which is entirely within national jurisdiction, was claimed entirely by the two coastal states of that area, the United States and the Soviet Union. Similar developments occurred elsewhere in the world. As discussed earlier, this increase in high seas fishing, particularly on stocks that also occur within adjacent EEZs, has given rise to significant dispute, some of global political consequence sufficient to trigger action by the United Nations General Assembly. But none of these disputes has yet stimulated implementation of international legal principles for the management of the new high seas operations, nor have any led to the creation of new institutions for that same purpose. Yet it is evident that CLOS did not leave the freedom to fish on the high seas in the same relatively undeveloped and unqualified condition that had existed prior to that time. As the preceding discussion suggests, such fishing is now subject to principles which entail significant new duties and responsibilities, some of which are owed to particular identifiable coastal states. It is true that in the case of straddling stocks the strong efforts made by Canada and others at the CLOS negotiations to establish a mechanism and procedures for bringing such fisheries under management did not succeed

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as proposed. Although these formal proposals did not survive the political necessities of completing negotiations on a document of enormous complexity, the remaining provisions in Parts V and VII make it abundantly clear that high seas fishing on straddling stocks can no longer be conducted in disregard of the rights, duties, and interests of the coastal states concerned. Driftnet fisheries that either target upon or incidentally take straddling stocks are subject to this same principle. The problem with the relevant principles in Parts V and VII is their vagueness and generality, with a consequent lack of specific guidance in particular contexts. The specific problem is how to give effect to ``rights, duties, and interests'' and to facilitate and to promote the evolution of the principle that these are superior to high seas rights in certain contexts of high seas fishing. For high seas fishing on non-straddling stocks, the treaty also provides general guidance by affirming unequivocally that the high seas fishing states must provide for conservation and undertake the operations necessary to accomplish that objective, including the conduct of scientific research. The treaty, in this respect, provides additional support for the principle that high seas fishing states are not free to disregard the wider community's interest in conservation of marine species. Unfortunately, the effective application of these general principles has yet to occur in concrete disputes although discussions are under way at the diplomatic level concerning various fisheries, especially in the North Pacific. Until the principles embodied in customary law and the law of the sea treaty are invoked and applied to resolve such disputes, widely shared goals of conservation and management will not be achieved. The major point of the new principles, however generally formulated, is that the old order of unrestricted fishing on the high seas is no longer authoritative. That CLOS or customary law do not provide specific methods for implementing restraints on this fishing is regrettable, but continued pressure on objectionable high seas fishing practices through concerted international action may prove effective over time. If it does not, the existing regime, leaving large areas of high seas beyond national jurisdiction, may not survive. Given such stakes, even excessively general principles are better than none and they can be tailored to produce reasonable solutions. The emo tional overtones of the recent driftnet controversies strongly suggest that solutions will be vigorously pursued, if not secured. Better that they be found through genuinely international solutions than imposed through unilateral actions, either to extend national jurisdiction or to impose severe economic sanctions. D. DEBATE: Which Governs the Seabed: High Seas Freedoms or the Common Heritage Principle?19 1. The Common Heritage Principle20 The principal issue that underlies the ``reappraisal'' of the Law of the Sea Convention by the United States is the question whether it is lawful for a nation to mine the polymetallic nodules without treating the resource as part of the ``common heritage'' of humankind without adhering to international standards, and without sharing the profits with the rest of the world. The United States gave significant support to the common heritage idea during the Nixon administration, but, during the last few years, our spokespersons have declared that the exploitation of deep seabed resources is a freedom of the high seas under current law. As Ambassador Richardson noted, however, only a few other countries share this opinion. Opposing the United States are at least 130 nations, including the 119 developing nations represented by the Group of 77, China, and, at least since 1978, the Soviet Union and the other Eastern European nations. a. The Freedoms of the High Seas: Is Seabed Mining One of Them? (1) The Text and Commentaries of the 1958 Convention on the High Seas Before the mid-1960s, few scholars argued that the exploitation of the deep seabed was a freedom of the high seas. Today, however, the United States and a few other developed countries argue that the deep seabed is subject to the legal regime of the high seas and that seabed mining is lawful as a freedom of the high seas. The source most often cited as showing that polymetallic nodule mining is a freedom of the high seas has been the 1958 Geneva Convention on the High Seas, especially Article 2 and its associated Commentaries. The text of Article 2 reads as follows: The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by general principles of international law, shall be exercised

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by all States with reasonable regard to the interests of other States in the exercise of the freedom of the high seas. The argument is that seabed mining is a freedom of the high seas included among the unstated ``inter alia'' because of language in the Commentaries. The Commentaries to Article 2 are elusive but arguably offer some support for the idea that deep seabed mining is one of the freedoms of the high seas. The first Commentary of the International Law Commission included the following language: The list of freedoms of the high seas contained in this article is not restrictive; the Commission has merely specified four of the main freedoms. It is aware that there are other freedoms, such as freedom to explore or exploit the subsoil of the high seas and freedom to engage in scientific research therein. . . .21 The second Commentary, prepared for submission to the United Nations General Assembly with the draft articles of all of the Conventions on the Law of the Sea, contained language that seems to recognize the uncertainty of the subject: The Commission has not made specific mention of the freedom to explore or exploit the subsoil of the high seas. It considered that apart from the case of the exploitation or exploration of the soil or subsoil of a continental shelf--a case dealt with separately in Section III below--such exploitation had not yet assumed sufficient practical importance to justify special regulation.22 The ``exploitation or exploration of the soil or subsoil of a continental shelf'' did not, of course, become a high seas freedom. Instead, it is within the exclusive jurisdictions of the coastal State. As applied to the deep seabed beyond national jurisdiction, these oft-cited Commentaries are simply ambiguous. Although it is possible to read the Commentaries as stating that deep seabed mining is a freedom of the high seas, that is certainly not the only possible interpretation. More importantly, no evidence exists that this interpretation was adopted in the Convention or that the Commentaries to Article 2 express customary international law. The history and text of the Commentaries provide further evidence why they should not be used to make sweeping claims about the legal status of the deep seabed. These Commentaries were the product of a struggle of one of the members of the International Law Commission (ILC), Professor Georges Scelle, against the continental shelf doctrine. Scelle, a Frenchman, believed that national jurisdiction over the continental shelf violated the traditional freedom of the high seas. When it became clear that he would be unsuccessful in opposing the continental shelf doctrine, Scelle pressed for an explicit limit to the continental shelf, beyond which the regime of the high seas would apply. Scelle also objected to the ILC's failure to include seabed mining as a freedom of the high seas in its Draft Article 2. The ambiguous language of the Commentaries was apparently prepared in part to satisfy Scelle's concerns, and he in fact said that he was ``satisfied'' with the Commentaries. They in effect side step the issues that divided the members of the Commission. Taken as a whole, the Commentaries point out the lack of interest in the deep seabed. Had the ILC considered the issue in detail, it is doubtful that it would have decided that deep seabed mining was a freedom of the high seas. In fact, it is possible that the ILC would have proposed something like the ``common heritage'' idea for the deep seabed. Professor Scelle, the source of the Commentary's freedom of the seas language on seabed mining, had earlier proposed an ``international administrative authority set up within the framework of the United Nations'' to govern the exploitation of submerged areas beyond the territorial sea. It is ironic that his efforts at the ILC are now used as the primary authority to argue that such international authority should not govern the deep seabed. The texts of the Conventions produced at the United Nations Conference on the Law of the Sea I (UNCLOS I) are obviously more important than the ILC's Commentaries. There the record is clear: no decision was made, even implicitly, on the legal status of the deep seabed. Although article 2 with its ``inter alia'' language was adopted, no evidence indicates that sealed mining was meant to be among the inter alia. The Convention on the High Seas appears to exclude the deep seabed altogether from the ``high seas'' as it defines that term. Article 1 gives us the definition: ``The term `high seas' means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.'' This definition of the high seas includes only the waters. When the ILC wanted to declare that the seabed of a region was subject to the same regime as the waters of the region, it did so in explicit terms. For example, the ILC's Commentary on the Draft Convention on the Territorial Sea declares: ``The sovereignty of a coastal state extends also to the air space over the territorial sea as well as to its bed and subsoil.'' The Convention on the High Seas recognizes that the laying of cables and pipelines on the bed of the high seas is a freedom of the high seas. But this recognition does not imply that seabed mining is a freedom of the high seas or that the seabed is to be considered as part of the high seas for all uses. The right to lay submarine cables and pipelines is a high seas freedom of all nations, even when the cables or pipes are placed on the continental shelf of

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another nation. Cable-laying is a classic example of an activity that is a high seas freedom because of the nature of the activity. It is very similar to the traditional high seas freedom of navigation. Cables and pipelines do not interfere with the ability of others to use the oceans for the same purposes. Cables cross each other freely; pipelines can cross with appropriate engineering design. They use only a tiny portion of the ocean bottom. Cable-laying is entirely different than the exploitation of mineral resources, which are exhaustible. To the ILC, the nature of the activity was controlling, not the region in which it occurred; cable-laying on the continental shelf is a freedom of the high seas, but mineral exploitation on the continental shelf is the right of the coastal nation alone. Similarly, the high seas freedom to lay cables on the deep seabed in no way implies that the mineral exploitation of the deep seabed is also a freedom of the high seas. Even if the first Commentary is read to state that deep seabed mining is a freedom of the high seas, it cannot be seriously argued that this Commentary was expressing or codifying customary international law. The ILC's members, including Scelle, never mentioned any precedent, practice, or authority for finding such a freedom. It is puzzling that the ILC's members never mentioned the res nullius alternative for the deep seabed, even though that was the clear preference of scholars up to that time. (2) Is the Analogy Logical? The meaning of Article 2 can therefore also be examined from the perspective of the nature of usage and logic. The arguments in favor of the freedom of the high seas are usually traced to Grotius. He wrote that the seas must be free for navigation and fishing because natural law forbids the ownership of things that seem ``to have been created by nature for common use.'' Things for common use are those that ``can be used without loss to anyone else . . . .'' For example, the use of the seas for navigation by one nation does not diminish the potential for the same use by others. Since Grotius, the freedom of the seas has outgrown its natural-law roots; now both navigation and fisheries require some regulation. Nevertheless, the rules that developed governing the use of the sea as a common resource were tied to the special character of those uses. For example, States are free today to navigate and fish on the high seas so long as they do not diminish the resource or prejudice the future ability of other nations to use the seas. The new uses that were recognized as freedoms of the seas, such as cable-laying and scientific research, also did not diminish the use of the sea by others. In contrast, seabed mining for polymetallic nodules is entirely different from any use previously recognized as a high seas freedom. Polymetallic nodules are an exhaustible resource, nonrenewable on any human time frame. Deposits of polymetallic nodules differ dramatically in their economic value, and the deposits that are economically attractive in the near future are limited. If exploited vigorously, the prime mine sites could be completely exhausted within a few decades. Mining could still continue on poorer sites because, as the technology improves, seabed mining should become more competitive with terrestrial mining. But the first miners will take the better sites. Many of these better mine sites have already been identified and explored by scientific groups and by the private seabed mining consortia. The traditional high seas freedoms have favored technologically advanced nations in the use of the oceans. The nations able to equip fleets capable of fishing in distant waters benefited from the freedom of fishing; the great maritime nations benefited from the freedom of navigation. These advantages resulted from the already privileged situation of the developed nations, but at least these uses by developed nations did not exhaust the possibility that other less developed nations might someday share, on equal terms, the great common resource of the oceans, undegraded by the prior use of others. b. The Res Nullius Argument A few spokespersons for seabed mining interests have argued instead that the seabed is a res nullius, open to exploitation and exclusive claims by the first occupier. Before the mid-1960s, few uses had been made of the deep seabed beyond the continental shelf, and few were contemplated. Cables had been laid across the deep seabed since the mid-nineteenth century, but except in coastal areas where they might foul fishing gear, they had spawned no conflicts requiring legal resolution. Some oceanographic research of the deep seabed had occurred; but like cable-laying, these caused no controversies. As a result, writers on international law paid little attention to the deep seabed. Early writers on the seabed generally did not distinguish between the continental shelf and the deep seabed, although they were usually more concerned with the practical issues that might be posed by the use of the continental shelf. These early writers treated the seabed (including the continental shelf) either as a res nullius or as a res communis. This disagreement resulted from two conflicting analogies for the seabed. If the seabed is like unclaimed land, it is a res nullius; if it is like the high seas, it is a res communis. In practical terms, no nation can claim exclusive rights or sovereignty over a res communis or over the high seas, but a nation can acquire exclusive

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rights to a res nullius through occupation. The res nullius theory enjoyed a surge of popularity in the late 1940s and early 1950s, when it was invoked to provide a legal justification for the then-novel national claims to the exclusive right to exploit natural resources, chiefly petroleum, on adjacent continental shelves. These res nullius advocates used as their primary example the longstanding recognition that certain nations had the exclusive right to exploit sedentary fisheries on the seabed contiguous to their territory but outside their territorial limits. These claims included the regulation of pearl fisheries by Ceylon, Australia, Mexico, and Colombia, and the Italian and French regulation of coral in the Mediterranean. All of the sedentary fisheries were located in seas that are now juridically considered continental shelves. The evolution of the ``continental shelf doctrine'' makes res nullius obsolete as an explanation for the regulation of sedentary species. In fact, occupation of a res nullius was thoroughly considered and emphatically rejected by the Convention on the Continental Shelf as the basis for national jurisdiction over the continental shelf. The coastal States have jurisdiction over the continental shelf because it is the ``natural prolongation of its land territory.'' The coastal State need make no occupation in order to obtain jurisdiction over the continental shelf; such jurisdiction by another State cannot defeat the coastal State's jurisdiction. Res nullius was politically unacceptable to the drafters of the Convention on the Continental Shelf because it would have permitted the first ``occupant'' to claim a continental shelf--even if the occupying nation was not adjacent to the shelf. For example, had the United States been the first to drill for oil in the North Sea, under a res nullius theory the United States would arguably have been able to claim exclusive rights to the North Sea oil fields. The rejection of res nullius for the continental shelf is now firmly established in international law. Because the continental shelf did not become a res nullius zone, virtually no authority supports the proposition that the deep seabed should be considered as such a zone. Certainly the sedentary species examples are weak authority. Upon close examination, the legitimacy of such claims by nations seems to have been based on prescription, rather than on the occupation of a res nullius. In addition, the practice seems far from universal; one could surely find many sedentary and demersal fisheries that were not claimed by a single nation. c. The Argument that ``What is Not Prohibited, is Permitted'' Some advocates for the mining consortia have offered, as a separate and distinct argument, the theory that seabed mining is permitted because no international law principle specifically prohibits it. This theory differs from the argument that new uses of the high seas do not require consent in that it is broader and more inclusive: no new activities of sovereign nations require consent, absent a prohibitionary rule. The principle that ``what is not prohibited, is permitted'' is one that appears from time to time in international law. The S.S. Lotus and the Fisheries Case are cited for this proposition. In the Lotus case, the Permanent Court of International Justice held by a divided vote that the Turkish government could exercise criminal jurisdiction over the officer of a French ship which collided with a Turkish ship in international waters because such jurisdiction, although not expressly allowed by international law, was also not forbidden by international law. In the Fisheries Case, the International Court of Justice held that although Norway's claim to draw straight baselines connecting the outer limits of its indented coast was unusual, no rule of international law prohibited it. Both cases are now accepted as good law, not because international law permits whatever is not specifically prohibited, but rather because the result in each case makes sense on its facts. Turkey's assertion of jurisdiction in Lotus was reasonable because the French officer's negligence caused damage to a Turkish ship, which is akin to Turkish territory; the assertion of jurisdiction thus fits into the principle that jurisdiction can be exercised over ``conduct outside the territory causing effect within.'' The court's decision in the Fisheries Case was a reasonable solution to the unusual coastline involved in that case, and the result has been approved and codified in the Convention on the Territorial Sea and Contiguous Zone and in the Draft Convention of UNCLOS III. The theory that nations are free to do as they please, absent some prohibitionary rule, is inimical to the settlement of international disputes by law. ``The moment the ultimate foundation of State rights is found in State sovereignty, law suffers because the rights in question tend to cancel out . . . .'' Assertions of rights by one nation of necessity often deny rights asserted by other nations. To place the burden of proof on one party to find a rule that prohibited the conduct of another would reduce much international law to procedural jockeying between the parties to become plaintiff or defendant, whichever would avoid having the burden of proof. As a practical matter, when asserted rights are in conflict and if the parties wish to resolve the conflict by legal procedures, the parties must drop the claim that they have a pre-existing right to their positions, absent a prohibitionary rule, and allow the dispute to be settled by the relevant rules of international law. d. The Making of International Obligations, 1967-81 (1) The Emergence of an International Consensus In 1969, the United Nations General Assembly passed the Moratorium Resolution, by a vote of 62 to 28, with

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28 abstentions, declaring that States and corporations are ``bound to refrain'' from seabed mining until an international regime can be established to govern this activity. The following year, the members of the General Assembly worked hard to hammer out a document that could achieve a broader consensus. The result was an ambiguous document, a negotiated compromise carefully worded to achieve the broadest possible consensus, called the ``Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction'' (Declaration of Principles). It was passed unanimously, by a vote of 108-0, with only 14 nations from Eastern Europe including the Soviet Union abstaining. Since the mid-1970s, the Soviet Union and the other Eastern European nations have come to endorse the developing nations' interpretation of the Declaration of Principles. The United Nations General Assembly lacks formal legislative competence. Nevertheless, resolutions of the General Assembly have significance for the formation of international law in three distinct ways. First, resolutions may serve as convenient formulations of customary international law. Given the highly decentralized formation of customary law, resolutions that formalize and express existing law can be tremendously useful. In this sense, the resolutions do not add to the content of existing law; they merely give it new expression. Second, General Assembly resolutions, particularly those labeled ``declarations'' may be considered to import, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon States. Resolutions may thus contribute to the development of new law by influencing the moral and political climate in which nations operate. Third, a General Assembly resolution may itself be an element in the practice of nations which leads to the establishment of law. The most important question, especially with respect to novel activities such as seabed mining, is the extent to which the process of enacting a resolution may establish law when little other relevant State practice exists. In arguing against giving much weight to United Nations resolutions, it is sometimes stated that nations ``don't mean what they say'' in the United Nations; they do not regard their votes or statements in the General Assembly as law-making, and hence, cannot be bound as if they were. Nations often paper over real differences by voting for ambiguous resolutions merely to avoid politically embarrassing confrontations. (Similar compromises also occur, of course, in domestic legislatures, where legislators frequently vote for bills that they are not completely satisfied with in order to further party goals.) The way to meet these objections, without capitulating to the cynicism they express, requires examining resolutions individually to find what meanings enjoy genuine consensus and what perceptions of the legal effects can be fairly attributed to the nations involved. Applying these criteria to the 1970 Declaration of Principles seems to lead to the conclusion that it should be viewed as evidence of emerging customary law. This conclusion seems particularly logical as applied to the vote of the United States because our leaders were speaking and acting during this period in support of the goals of the Declaration of Principles. For instance, in the first major policy statement regarding the deep seabed, in 1966, President Lyndon B. Johnson said: [U]nder no circumstances, we believe, must we ever allow the prospects of rich harvest and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms, are, and remain, the legacy of all human beings. Then, in 1970, President Richard M. Nixon announced a new oceans polity that included the renunciation of all sovereign rights to the seabed and its resources and the establishment of international machinery to administer the licensing of exploration and exploitation of the resources of the seabed. Among the ``Basic Principles'' announced by President Nixon to govern the seabed were the following three: The International Seabed Area would be the common heritage of mankind and no state could exercise sovereignty rights over this area or its resources or, except as provided in the convention, acquire any right or interest therein. The International Seabed Area would be open to use by all states without discrimination, except as otherwise provided in the convention, and would be reserved exclusively for peaceful purposes. Provision would be made for the collection of revenues from mineral production in the Area to be used for international community purposes including economic advancement of developing countries and for promotion of the safe, efficient, and economic exploitation of the mineral resources of the seabed (emphasis added). President Nixon, followed by President Gerald Ford and President Jimmy Carter, entered into active negotiations at the United Nations preparatory meetings and at UNCLOS III to develop a treaty that would create an

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international regime to govern seabed mining consistent with the Declaration of Principles. At no time did our negotiators express any reservations about these Principles. The Deep Seabed Hard Minerals Resources Act of 1980 specifically acknowledges the commitment of the United States to the 1970 Declaration of Principles. Nations have agreed in the Declaration of Principles that the deep seabed is presently the common heritage of humankind. Although a comprehensive law of the sea treaty is necessary to implement the principle, a new treaty is not necessary to confirm the present status of the deep seabed as the common heritage. Nations have some freedom to negotiate what the common heritage means and its legal significance, but they cannot deny that the seabed is the common heritage of humankind. Nations have also agreed that they must implement the principle of the common heritage during the United Nations Conference on the Law of the Sea. It was an explicit purpose of the Declaration of Principles to serve as the basis for negotiating the future seabed regime. The analysis in this section presents the justifications of giving legal significance to aspects of the Declaration of Principles and the seabed's ``common heritage.'' The Declaration was universally endorsed at the time of its adoption. The best approach to giving definite content to the ``common heritage of mankind'' was proposed by the United States Representative John Stevenson when he explained the vote of the United States in favor of the Declaration of Principles: the meaning of the ``common heritage'' ``is indicated by the principles which follow'' it in the Declaration ``and will be established in the internationally agreed regime to be established.'' With this procedure in mind, several principles which follow the ``common heritage'' concept in the Declaration of Principles can now be further discussed. These principles regarding the seabed have been established as law by virtue of their universal recognition by all major nations in the Declaration of Principles and by other actions of nations in the last fifteen years. The principles are as follows: (1) the ``common heritage'' concept requires that developing nations share genuine benefits from seabed exploitation; (2) a ``generally accepted'' law of the sea treaty can establish a seabed regime binding even on nonparties to the treaty; and (3) even if no treaty is signed, claims of exclusive rights to the seabed resources will be prohibited. (2) A ``Generally Accepted'' Law of the Sea Treaty Will Bind Nonparties It has been argued that even if a comprehensive law of the sea treaty governing seabed mining is adopted, nations that are not parties to the treaty will be free to mine the seabed. Nonparties might offer themselves as ``flags of convenience'' to seabed miners who wish to escape the provisions of the treaty. Although the general rule in international law is that treaties bind only the countries that ratify them, some treaties have had a universal ``constitutive'' effect, binding on all nations; the prime example is a treaty ``which bring[s] into existence some new international entity, whether a State or not.'' A Law of the Sea Convention could have a ``constitutive'' effect in that nonparties could be forced to recognize the international legal personality of the International Seabed Authority established by the treaty. Following the logic of the recent Libyan arbitral award, if a treaty follows the policies agreed upon in the 1970 Declaration of Principles, and if it enjoys support from each of the major political, economic, and geographical groups, the regime it creates should be held to control the use of the seabed by all nations. It is impossible to specify the degree of disagreement that will prevent the international seabed regime from claiming universal effect. But no single nation, not even one as powerful as the United States, can block the creation of international law. If the United States stands alone in opposing the treaty and engages in seabed mining outside the treaty regime that is generally agreed upon, these activities will be held unlawful. 2. High Seas Freedoms 23 The public debate on the issue of the relationship between the high seas regime and the seabed beyond the limits of coastal state jurisdiction divides those who believe that the status of that seabed area is high seas from those who say it is not. Both groups largely end the legal inquiry there. The former group asserts that all uses of the seabed and subsoil are governed by juris dictional rules derived directly or by analogy from existing high seas law. The latter group asserts that the seabed beyond the limits of coastal state jurisdiction is not governed by those rules at all. If one wishes to present an accurate picture of the state of the law at this stage, one cannot avoid the ambiguous details. The reality is that there is no consensus among states at this time on the underlying conceptual issue of the status of seabed areas beyond coastal state jurisdiction. a. Geographic Scope of the Sea If one asks whether the seabed and subsoil are part of the sea for purposes of applying the law of the sea, there can be no doubt that the answer is `yes.' The 1958 Conventions on the Territorial Sea and the Contiguous Zone,24 the High Seas,25 and the Continental Shelf 26 deal with the seabed and subsoil. Many provisions of the 1982 United Nations Convention on the Law of the Sea also deal with the seabed and subsoil.27

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This seemingly obvious point has potential legal implications. The sea, including the seabed and subsoil, are subject to a special system of law that incorporates some, but not all, of the rules applicable on land. Perhaps the most important difference is that the rule that sovereignty may be acquired by effective occupation is a stranger to the modern law of the sea. Internal waters may be established by coastal states within geographic limits determined by the international law of the sea without reference to effective occupation.28 No other states may claim jurisdiction there. Also, every coastal state is entitled to a territorial sea, continental shelf, and now an exclusive economic zone, whose maximum limits are determined by the international law of the sea without reference to effective occupation.29 No other states may claim jurisdiction there either. No claims of sovereignty or territorial jurisdiction are permitted beyond the limits of coastal state jurisdiction established by international law. The received regime of the seabed beyond coastal state juris diction, then, is not a complete tabula rasa. An attempt to extend `first come, first served' rules of pre-emptive occupation to large chunks of the seabed is inconsistent with the nature of the modern law of the sea.30 In itself, this does not mean the seabed and subsoil and their resources cannot be used, but it may mean that pre-emptive claims based on effective occupation need not be respected. b. Geographic Scope of the High Seas High seas law is now extensively codified in a variety of international agreements. This portion of the article analyzes the treatment of the geographic scope of the high seas in some of the more important documents, particularly the 1958 Convention on the High Seas and the 1982 Convention on the Law of the Sea. The foregoing texts do not necessarily clarify the broad question of whether the seabed and subsoil are part of the high seas. The references to the `freedom to fly over the high seas' and to `a submarine cable beneath the high seas' may be used to support either conclusion, and may or may not be relevant. If the seabed and subsoil are part of the sea for purposes of the law of the sea, and if the high seas embraces `all parts of the sea' beyond specified coastal limits, then it would seem to follow that the seabed and subsoil beyond those coastal limits are part of the high seas. But even the 1958 Conventions are not that simple. The precise question is which rules of the law of the sea apply. The text makes it clear that, to the extent one regards the Convention on the High Seas as embodying the regime of the high seas at the time, that regime expressly regulates at least some uses of the seabed. These include not only submarine cables and pipelines, dumping, and pollution resulting from exploitation and exploration of the seabed and subsoil, but other activities traditionally associated with the freedoms of the high seas such as anchoring. The simultaneous drafting and adoption of the Convention on the Continental Shelf makes it clear, however, that not all uses of the seabed of the high seas are subject to all rules of high seas law under the 1958 Conventions. The exploration and exploitation of the natural resources of the continental shelf are not freedoms of the high seas; on the contrary, they are subject to the exclusive sovereign rights of the coastal state. At the same time, the High Seas Convention itself elaborates certain obligations of the coastal state with respect to the exercise of those very sovereign rights, notably with respect to pollution and submarine cables and pipelines. The end result is that all states enjoy only some freedoms of the high seas on the seabed of the continental shelf, and that the coastal state enjoys exclusive rights with respect to the exploration and exploitation of the natural resources of the continental shelf, subject to certain obligations derived from the high seas regime. A categorical statement that the continental shelf is, or is not, high seas would not even begin to describe that result with any accuracy. This analysis of the application of high seas law to the continental shelf suggests only a partial resolution of the issue of the applicability of the high seas regime to the seabed beyond the continental shelf. It is clear that to some extent the high seas regime (including certain freedoms of the high seas) does apply to the seabed of the high seas. Beyond that, it depends on one's point of view. The exclusive rights of the coastal state over continental shelf resources are regarded by some as an exception to the general principle that all uses of the seabed and subsoil of the high seas are subject to the high seas regime. Alternatively, the existence of those coastal state rights is regarded by others as evidence of a principle that, at least in so far as natural resources are concerned, high seas freedoms do not apply to the seabed and subsoil. An examination of the provisions of the Law of the Sea Convention clearly suggests that there is no serious dispute regarding the application of high seas law to at least some uses of the seabed and subsoil beyond the limits of coastal state jurisdiction. Among these would be the freedom to anchor, to lay submarine cables and pipelines, to construct artificial islands and other installations, and to conduct marine scientific research. Needless to say, these freedoms must be exercised with due regard to other uses. It is at this point that this conclusion must be tested against the positions taken by states with specific reference to the seabed beyond the limits of coastal state jurisdiction. c. General Principles

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(1) Prohibition on Claims The fundamental principle of high seas law regarding national claims is stated in Article 2 of the High Seas Convention: `The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.' Articles 87 and 89 of the 1982 Convention repeat this principle. The U.N. General Assembly's Declaration of Principles regarding the seabed beyond the limits of national jurisdiction states: `The area shall not be subject to appropriation by any means by States or persons, natural or juridical, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof.' Article 137 of the 1982 Convention states with respect to the same area: `No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.' The United States Deep Seabed Hard Mineral Resources Act, asserting `high seas freedom to engage in exploration for, and commercial recovery of, hard mineral resources of the deep seabed,' expressly affirms that by enactment of the Act the United States `does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or ownership of, any areas or resources in the deep seabed.'31 From these texts we can articulate an important but not explicit commonality, one subject to erosion, and fragile if not identified and preserved.32 Even those who reject the broad principle that the seabed has the status of high seas in fact accept one of its most important implications, namely the prohibition on national claims. Those who reject the broad principle that all states are bound by Part XI of the 1982 Convention as customary international law nonetheless accept the prohibition on claims if only by virtue of their position that the area has the status of high seas. This point of agreement is not as obvious as it seems, and may in fact erode unless the existence of such agreement is emphasized. A number of commentators have on occasion confused the position that the area is high seas with the position that no law, or at least no traditional law, applies. If the area is high seas, no part of it may be subjected to national claims. If no law applies, then those who reject Part XI of the Convention may contend that states are theoretically free to make pre-emptive claims on the grounds that such claims are not prohibited by international law. In this regard, it is important to recognize what is, and is not, in dispute with respect to the legislation and agreements of the United States and certain other states with respect to deep seabed mining. The United States statute prohibits the issuance of authorizations to mine by the United States if the area proposed is already subject to a previous authorization issued by a reciprocating state. The Provisional Understanding Regarding Deep Seabed Mining agreed by several Western states in essence implements this reciprocating state system. In the words of the statute, the United States thereby 'exercises its jurisdiction over United States citizens and vessels, and foreign persons and vessels otherwise subject to its jurisdiction.' The reciprocating states are doing the same. No pre-emptive claim is made as against the world; what is asserted is a universal right to mine and a right of each state to prevent its nationals from mining. Some may wish to argue that the universal right to mine may be exercised only in conformity with the provisions of the 1982 Convention. They may also wish to argue that while no pre-emptive claims are asserted as against the world, the legislation and agreements may create a political situation in which any global agreement would have to respect the essence of existing authorizations as a condition of acceptance. Be that as it may, there is no basis at present for asserting that any state is violating the `no-claims' principle in letter or in spirit. It is in the interests of all states to emphasize the universal agreement on this point, if only to prevent far-fetched interpretations of the due regard principle. While high seas law does not permit a pre-emptive claim as against non-consenting states of an exclusive right to mine a site measuring thousands of square miles for several decades, all states are required to have due regard to the exercise of the rights and freedoms of other states, including deep seabed mining. Apart from the question of the lawfulness of the mining, there is no doubt that unreasonable physical interference with a mining ship or installation would be prohibited. Some have sought to go further, however, and convert the venerable `reasonable regard' or 'due regard' principle into the functional equivalent of a pre-emptive claim. They argue that mining in an area already staked out by someone else violates the `due regard' obligation. There is no precedent for such extended application of the principle with respect to fisheries or even nuclear tests. It is contradicted by the limited and unobjectionable safety zone provisions of the Continental Shelf Convention and the 1982 Convention, which deal with installations that may be used to exploit resources located well beyond the safety zones. The very states that advocates of such a position seek to benefit would presumably shudder at the notion of such a broad extension of the reasonable regard principle with respect to the waters of the high seas or the exclusive economic zone, or even non-resource uses of the seabed.

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The key point is that the `reasonable regard' or `due regard' principle must be read in conjunction with the `no claims' and universal use principles. Accordingly, whatever the position of states regarding the appropriate system for mining the deep seabeds, it is not in their interests to loosen the restraints of the `no claims' principle on those who take a different view of the regulation of mining. Both the high seas and the Part XI advocates must be encouraged to live with the restraints as well as the benefits of their position. (2) The Universal Use Principle Article 2 of the High Seas Convention states that the high seas are open to all nations. It goes on to state that freedom of the high seas `is exercised under the conditions laid down by these articles and by the other rules of international law.' Article 87 of the United Nations Convention on the Law of the Sea provides, `The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law.' The Declaration of Principles Regarding the Seabed Beyond National Jurisdiction states, `the area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination, in accordance with the international regime to be established.' With respect to the same area, article 141 of the United Nations Convention on the Law of the Sea provides, `The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part .' Part XI of the 1982 Convention contains substantial restrictions on use of the seabed beyond coastal state jurisdiction, but these relate only to `activities in the Area.' The term `activities in the Area' is defined by Article 1 to mean `all activities of exploration for, and exploitation of, the resources of the Area.' Article 133 defines `resources' to mean `all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules.' Accordingly, the effect of Part XI with respect to activities other than exploration and exploitation of mineral resources is the same as the effect of the high seas regime. The area is open to use by all states. Moreover, nothing in the specific provisions of Part XI regarding exploration and exploitation of mineral resources contradicts the universal use principle. The Convention expressly contemplates access by all, with discrimination prohibited. Article 150(g) indeed goes beyond this to encourage `the enhancement of opportunities for all States Parties, irrespective of their social and economic systems or geographical location, to participate in the development of the resources of the Area.' The idea that universal use of an area is subject to generally agreed regulation is no stranger to the high seas regime. Article 10 of the High Seas Convention requires states to conform to generally accepted international standards regarding safety measures and labor conditions. Article 94 of the United Nations Convention on the Law of the Sea elaborates on this duty at great length. The same idea forms the cornerstone of Part XII of the 1982 Convention regarding protection of the marine environment. (3) The Reasonable Regard Principle If everyone has the right to use an area for the same or different purposes, it is clear that the right to use must be conditioned by a duty to respect others' right to use the same area. Article 2 of the Convention on the High Seas provides that high seas freedoms `shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.' Needless to say, if one regards deep seabed mining as a freedom of the high seas, this principle protects mining activities from interference and at the same time limits mining activities that may interfere with other uses, including other mining activities. (4) The Common Heritage Principle The Declaration of Principles adopted by the U.N. General Assembly states, `The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of the area, are the common heritage of mankind.' Article 136 of the 1982 Convention declares, `The Area and its resources are the common heritage of mankind.' No similar provision appears in the 1958 Conventions on the Law of the Sea or elsewhere in the 1982 Convention. The debate over the deep seabeds is sometimes presented as a conflict between `high seas' and 'common heritage.' It should be clear from all the materials previously analyzed that this is misleading. The common heritage principle, as incorporated into Part XI of the 1982 Convention, exists alongside a significant number of other principles elaborated in Part XI that have their origin in high seas law. It is argued that the common heritage principle requires more elaborate institutional and substantive restraints on the `universal use' principle than have been customary on the high seas. Be that as it may, the very idea of negotiated restraints on the exercise of high seas freedoms is not alien to high seas law and tradition; quite to the

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contrary, it is an integral part of the system. One simply cannot imagine multiple and potentially conflicting uses of the high seas without agreement on ground rules. It is difficult to imagine the absence of organizations such as IMO and ICAO devoted to the continual elaboration and administration of such ground rules with respect to particular uses. Protection of the marine environment in an area open to use by all requires agreement on environmental restraints by all users, and mechanisms for enforcing and updating those restraints. In truth, there is nothing in the common heritage principle that is inconsistent with high seas law. States may accept any substantive or institutional restraints on their high seas freedoms that they believe suitable. Were Part XI `generally accepted,' there would even be some basis in high seas law for arguing that at least some of the relevant regulations must be respected by all. Certainly in spirit, high seas law is far closer to the idea of a common heritage of mankind than to appropriation by coastal or other states. The key question is whether the restraints of Part XI that are not generally accepted may be imposed on non-parties. The argument that they may not be so imposed is not peculiar to high seas law, but rather derives from international law more generally. That argument is wholly independent of positions regarding the common heritage principle, and indeed may even be supported by the principle. There is ample support in municipal law for the premise that those with coequal rights in a thing cannot be deprived of those rights without consent. d. Conclusion As of today, the basic structure of the international law applicable to the seabed beyond coastal state jurisdiction is agreed. National claims are prohibited. The area is open to use by all. Any use of the area must be conducted with reasonable regard for other uses of the marine environment, and other uses of the marine environment must be conducted with reasonable regard for any use of the area. All uses of the area must be conducted in accordance with the duty to protect and preserve the marine environment. The significance of this level of agreement, given the alternatives, should not be obscured by debates over whether the agreed principles derive from high seas law as a legal matter, or purely as a historical matter. Broadside attacks on high seas law or on Part XI of the Convention do little more than place in jeopardy those basic principles that are agreed. Such attacks are far too sweeping to explain with any accuracy what is not agreed. The area of disagreement concerns the nature and administration of restraints on the exploration and exploitation of mineral resources. Even in this respect, the area of disagreement is far narrower than it seems. For example, by tying the spatial and temporal criteria for exclusive rights to a mine site to use, Part XI of the 1982 Convention is much closer to pure Lockean theories of property than its ideological opponents seem prepared to admit. It is natural that those favoring the restraints on mining set forth in Part XI argue that the exercise of a right of access to deep seabed resources is conditioned on compliance with those restraints, while those opposing the restraints argue that the right of access is independent of compliance with conditions that have not been agreed. It is implausible to assume that this kind of debate can be resolved in the abstract by invoking, or rejecting, the application of high seas law as a whole. More specifically, even with respect to the points of disagreement, the debate over high seas status is irrelevant. In the words of Article 2 of the High Seas Convention, `freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law.' The real question is not whether there is a universal right to mine, but whether `the other rules of international law' now include the restraints of Part XI. That is a question to be answered by the principles applicable to the emergence of new norms of international law, not by principles specific to the law of the sea or the seabed. Those who support a universal duty to respect the restrictions on mining set forth in Part XI must demonstrate that those restrictions are now part of international law. For this purpose, it is essentially irrelevant whether they maintain that there was no prior international law on the matter, or that the prior high seas right to mine was subject to the emergence of subsequent specific regulation, or that the prior high seas right has now been conditioned by the emergence of specific regulation. But a great deal is lost by making the first argument and completely rejecting the applicability of high seas law. That argument is worse than unnecessary and descriptively inaccurate: from the perspective of those who reject the restraints of Part XI, it implies that the Lotus case gives them a completely free hand. That is no good for anyone. At the same time, those who maintain that the specific restrictions on seabed mining set forth in Part XI apply only to the parties to the Convention must counter the contention that those restrictions are now part of international law. For this purpose, it is essentially irrelevant whether they maintain that the principles and rules set forth in the Convention bind only its parties or maintain that some of the detailed restraints and institutional arrangements in Part XI of the Convention have not been accepted by states with significant interests in the matter. But a great deal is lost by making the first argument and completely rejecting the general acceptability of the Convention as a whole, or

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even Part XI as a whole. That argument too is worse than unnecessary and descriptively inaccurate: from the perspective of those who reject the high seas argument, it implies that the principles of the Convention as a whole, including the unobjectionable principles embodied in Part XI, are not relevant to relations with non-parties. That too is no good for anyone. From the perspective of a seabed miner, it is perhaps a bit disingenuous to say that the legal principles applicable to the seabed beyond coastal state jurisdiction are now generally agreed, except for the problem of regulating deep seabed mining. But from the perspective of all the interests of all the states in the world, that is no mean achievement. Mining is not yet imminent. The rhetoric used in the debate regarding the matters that remain to be agreed should not cloud or, worse still, prejudice the principles that are agreed. FOOTNOTES CHAPTER 13 1 Anthony D'Amato and John Lawrence Hargrove, Environment and the Law of the Sea: A Report of the Working Group on Ocean Management, THE AMERICAN SOCIETY OF INTERNATIONAL LAW STUDIES IN TRANSNATIONAL LEGAL POLICY No. 5. 1-7, 10-18 (1974). Copyright 1974. Reprinted by permission. * HUGO GROTIUS, THE FREEDOM OF THE SEAS. Translated by Ralph Van Deman Magoffin. Oxford University Press for the Carnegie Endowment for International Peace, 1916, p. 37. 2 Daniel Bodansky, Protecting the Marine Environment From Vessel-Source Pollution: UNCLOS III and Beyond, 18 ECOLOGY L.Q. 719, 720, 724-40 (1991). Copyright 1991. Reprinted by permission. 36 The First U.N. Conference on the Law of the Sea met in 1958, and adopted four conventions: (1) Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 206 (entered into force Sept. 10, 1964); (2) Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311 (entered into force June 10, 1964); (3) Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82 (entered into force Sept. 30, 1962); and (4) Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285 (entered into force Mar. 20, 1966). 76 According to one study, 86.6% of tanker collisions and 91.2% of groundings occur in coastal waters. 79 Internal waters are waters landward of the coastal state's baseline (e.g., bays, river mouths, estuaries, ports). 80 The territorial sea is a band of water seaward of the coastal state's baseline, over which the coastal state is sovereign. 81 The contiguous zone is a narrow band of water seaward of a state's territorial sea in which the state has limited jurisdiction to protect its territorial sea. 82 The EEZ is an area beyond the territorial sea that may extend up to 200 nautical miles from the baseline of the territorial sea. 3 Alan E. Boyle, Marine Pollution Under the Law of the Sea Convention, 79 AM. J. INT'L L. 347, 352-72 (1985). Copyright 1985. Reprinted by permission. 17 United Nations Convention on the Law of the Sea, Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), reprinted in 21 I.L.M 1261 (1982). 1 L.F.E. Goldie, Environmental Catastrophes and Flags of Convenience--Does the Present Law Pose Special Liability Issues? , 3 PACE Y.B. INT'L L. 63, 64-90 (1991). Copyright 1991. Reprinted by permission. 2 The phrase ``flags-of-convenience'' has been defined in the following terms: The term ``Flags-of-Convenience'' is commonly used--and is used in this Report--to describe the flags of such countries as Panama, Liberia, Honduras, and Costa Rica, whose laws allow--and indeed make it easy--for ships, owned by foreign nationals or companies to fly these flags. This is in contrast to the practice in the maritime countries (and in many others) where the right to fly the national flag is subject to stringent conditions and involves far reaching obligations. Maritime Transport Committee, Organization for European Economic Cooperation, Study on the Expansion of the Flags of Convenience Fleets and on Various Aspects Thereof, Jan. 31, 1958, at 2 (mimeographed material). 3 BOCZEK, FLAGS OF CONVENIENCE: AN INTERNATIONAL LEGAL STUDY (1962). 4 For connotations of the phrase ``PanLibHon'' with reference to shipping (formerly ``PanLibHonCo'' when Costa Rica's law offered that nation's flag-of-convenience to foreign shipowners, see the definition given by the National Labor Relations Board in West India Fruit and Steamship Co., 130 NLRB 343, 364 and n. 82 (1961): ```PanLibHon' is the term usually employed in referring to `flag-of-convenience' ships of Panamanian, Liberian and Honduran registry.''). 5 Buchanan v. Rucker, 9 East 192, 194, 103 E.R. 546, 547 (K.B.) (1808). 6 The Case of the S.S. ``Lotus'' (Fr. v. Turk.) 1927 P.C.I.J. (Ser.A) No. 10.

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7 McDougal & Burke, A Footnote, 62 AM.J. INT'L L. 943 (1968). 8 Nottebohm Case (Second Phase), 1955 I.C.J. 4. 9 UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, OFFICIAL RECORDS, SECOND COMMITTEE (HIGH SEAS GENERAL REGIME) at 64, 123 U.N.Doc. A/CONF. 13/40, U.N.SALES No. 58. V. 4 Vol. IV (1958). 10 National Academy of Sciences, National Research Council, The Role of the U.S. Merchant Marine in National Security (1959) (``Project Walrus'' Report by the Panel on Wartime Use of the U.S. Merchant Marine of the Maritime Research Advisory Committee). 11 John R. Stevenson and Bernard H. Oxman, Comment: The Future of the United Nations Convention on the Law of the Sea, 88 AM. J. INT'L L. 488, 497-98 (1994). Copyright 1994. Reprinted by permission. 12 This includes conservation measures that take into account the interdependence of species, optimum utilization, coordination between neighboring coastal states, special rules for species that migrate between fresh water and the open sea, cooperation in managing highly migratory species, and agreement with the coastal state on measures to conserve stocks that migrate between the economic zone and the waters seaward of the zone. Marine mammals are afforded special protection, including exemption from requirements for optimum utilization. 13 William T. Burke, ``Common Heritage'' v. ``Freedom of the High Seas'' Regulation of Driftnet Fishing on the High Seas and the New International Law of the Sea, 3 GEO. INT'L ENVTL. L. J. 265-75, 277-94, 308-10 (1990). Copyright 1990. Reprinted by permission. 14 Driftnets are considered a subcategory of gill nets which are frequently used by artisan fishermen. These nets are typically 10 to 20 kilometers long. For a discussion of the various smaller scale driftnet fisheries, see U.N. SECRETARY-GENERAL, LARGE-SCALE PELAGIC DRIFTNET FISHING AND ITS IMPACT ON THE LIVING MARINE RESOURCES OF THE WORLD'S OCEANS AND SEAS 8, U.N. Doc. No. A/45/663 (Oct. 1990). 15 United Nations Conventions on the Law of the Sea, art. 117, U.N. Doc. No. A/CONF.62/ 122, opened for signature Dec. 10, 1982, XVII OFFICIAL RECORDS, THIRD UNITED NATIONS LAW OF THE SEA CONFERENCE 138 (1984). 16 Article 300 of CLOS is entitled ``Good faith and abuse of right'' and provides: ``States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.'' Although the doctrine of abuse of rights has occasionally been applied in international litigation, commentators differ about its scope and meaning in general international law. See also Cheng, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 121-36 (1953); Schwarzenberger, The Fundamental Principles of International Law, 195 RECUEIL DES COURS 290-326 (1955). 17 Two general agreements might be advanced: the 1958 Convention of Fishing and Conservation of the Living Resources of the High Seas, U.N. Doc. No. A/Conf. 13/L 54, done 29 Apr. 1958, 1 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 285 and CLOS. 18 CHURCHILL & LOWE, THE LAW OF THE SEA, 166 (2d ed. 1988); MCDOUGAL & BURKE, THE PUBLIC ORDER OF THE OCEANS 924-25 (1962). 19 [Eds. Note: Ratification of the 1982 Law of the Sea Convention was delayed for over a decade primarily because of the objections voiced by the United States and other industrialized nations to Part XI of the Convention. Part XI established the International Sea-Bed Authority and set forth a regime for authorizing the mining of the seabed and dividing the proceeds from such mining among the nations of the world. In July 1994, a separate Agreement on the seabed issue negotiated under the auspices of the United Nations was opened for signature. The Agreement substantially accommodates the objections of the United States by giving the United States greater representation in the decisionmaking of the International Sea-Bed Authority, embracing market-oriented policies, and removes impediments to mining by private seabed miners. States may become parties to both the Convention and the Agreement. The following excerpts concern the debate that seem to have been resolved by the 1994 Agreement. See Bernard H. Oxman, Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea: The 1994 Agreement and the Convention, 88 AM.J. INT'L L. 687 (1994). The debate concerned the right of states to unilaterally mine the international seabed and was couched in terms of which of two principles apply to seabed mining activities and the mineral mined: the freedom of the High Seas, or the common principle of the heritage of mankind.] 20 Jon Van Dyke and Christopher Yuen, ``Common Heritage'' v. ``Freedom of the High Seas'': Which Governs the Seabed?, 19 SAN DIEGO L. REV. 493, 497-98, 501-11, 514-30, 535-37 (1982). Copyright 1982. Reprinted by permission.

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21 [1955] 2 Y.B. INT'L L. COMM'N 21-22, U.N. DocA/CN.4/Ser.A. 22 Report of ILC to General Assembly, U.N. Doc. A/3159. 23 Bernard Herbert Oxman, The High Seas and the International Seabed Area, 10 MICH. J. INT'L L. 526-30, 533-42 (1989). Copyright 1989. Reprinted by permission. 24 Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, arts. 2, 14(3), 15 U.S.T. 1606, 1608, No. 10, T.I.A.S. No. 5639, at 3, 5, 516 U.N.T.S. 205, 208, 214. 25 Convention on the High Seas, Apr. 29, 1958, arts. 2, 24-29, 13 U.S.T. 2312, 2314, 2319-2320, T.I.A.S. No. 5200, at 3, 8-9, 450 U.N.T.S. 82, 96-98. 26 Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311. 27 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, Dec. 10, 1982, U.N. Sales No. E.83V.5 (1983) 28 The question of historic bays is properly regarded as a question of acquis ition of title by prescription rather than acquisition of title over terra nullius by effective occupation. The requirements for prescriptive title are more exacting, particularly with regard to acquiescence by other states. Moreover, the doctrine of historic bays is applied only in limited coastal areas largely enclosed by land. 29 Article 2 of the Convention on the Continental Shelf, and Article 77 of the U.N. Convention on the Law of the Sea expressly provide that the rights of the coastal state over the continental shelf do not depend on occupation, effective or notional. Article 241 of the U.N. Convention elaborates on the more general theme by providing that marine scientific research shall not constitute the legal basis for any claim to any part of the marine environment or its resources. 30 Invoking the S.S. Lotus case, 1927 P.C.I.J.(ser. A) No. 10, on the issue of pre-emptive claims misses the point. There is ample evidence that claims of sovereignty or exclusive jurisdiction based on effective occupation are prohibited by the law of the sea as a whole, whatever the nature of the specific regime that applies. Id. 31 30 U.S.C. § 1402 (1982). 32 It is important to bear in mind that none of these texts prohibit use, including exploration and exploitation of resources. The question of the appropriate rules governing different uses is another matter.B B