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California Law Review
Volume 55 | Issue 2
Article 5
May 1967
Law, Technology and the Sea
Douglas M. Johnston
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Douglas M. Johnston, Law, Technology and the Sea, 55 Cal. L. Rev. 449 (1967).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol55/iss2/5
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http://dx.doi.org/doi:10.15779/Z38J187
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Law, Technology and the Sea
Douglas M. Johnston*
have been matched by sweeping changes in the world community. Diverse techniques of social
and political organization seek to cope with the "revolution of rising
expectations." Racial fears and suspicions are exacerbated by technological advances which seem to mock the efforts of "have-not" states to
lessen the gap which separates them from the technological powers. New
forms of cooperation, such as regional associations, are appearing while
at the same time the forces of nationalism and especially the preoccupation with military security remain strong.
International law attempts to serve as an impartial framework of
reference for the processes of claim and decision. It seeks to limit the
choice of alternative policies and methods of implementation to those
most likely to enhance values shared by most members of the world
community and therefore least likely to disrupt public order. From a
sociological viewpoint, international law is, in our present age of machine
technology, a form of technique. The strains on this technique are especially clear with respect to the allocation and management of resources
and unoccupied space. Here, international law must reconcile diverse
national interests by means of equitable and rational solutions. To be
fully rational these solutions must also accommodate themselves to the
overriding value of efficiency inherent in modern technology. As problems
of allocation and management become more technical in nature, the logic
of efficiency will be applied more rigorously. As traditionally structured,
international law conflicts with this emerging "hypertechnical logic.",
This article will explore one aspect of this conflict by examining the
significant changes taking place now and in prospect in the law of the sea.
ECENT DEVELOPMENTS IN TECHNOLOGY
I
TECHNOLOGY AND THE SEA
Through the ancient skills of surface navigation and fishing, man first
contrived to make use of the sea for adventure, conquest, colonization,
transport and food.2 Navigation by the stars, developed by the Chinese
*MA., 1952, LL.B., 1955, St. Andrews University; M.C.L., 1958, McGill University;
LL.M., 1959, J.SJ)., 1962, Yale University; Research Associate, Harvard Law School. The
author is grateful for the expert advice of Steven P. Steinhour; however, the views expressed
are those of the author and Mr. Steinhour is in no way responsible for them.
1 As used in this article "hypertechnical logic" refers to reasoning that places maximum
emphasis on the value of efficiency, skill and economy.
2 D.M. JoHNsToN, TnE INTERNATIONAL LAW or FisimnEs 68-72 (1965).
CALIFORNIA LAW REVIEW
[Vol. 95: 449
and the Phoenicians in their respective hemispheres long after the first
scientists began to observe and measure movements in the sky, did represent a limited advance in marine technology; but man's capacity to
make fuller use of the sea had to await further technical advances, such
as improvements in the technology of building materials. Boat fishing
was practiced in coastal as well as inland waters thousands of years before the introduction of exact navigation; yet, it remained wholly innocent of science until the late nineteenth century when it seemed that the
new industrial techniques of capture might threaten the supply of fish.8
Partly because of the slow development of marine technology and the
resulting lack of stimulation to marine science, man has consistently regarded the sea as an alien element and himself as a land-bound mammal.
Until recently, moreover, the history of land-bound man permitted him
the luxury of remaining largely indifferent to the potential uses of the sea.
As little as a generation ago even oceanographers had limited visions
and modest objectives. Since then both visions and objectives have rapidly expanded.4 Scientific discoveries and technical innovations have projected the exciting possibility of radical solutions and improvements
arising out of new and expanding uses of the sea. In response to economic needs and stimulated by "spin-off" from the technologies of flight,
electronics, food, and nuclear energy, government and private investors
have begun to convert many sea-green fantasies into concrete projects.
Within the next decade the scale of government regulation over relevant
industries can be expected to ensure that marine science and marine technology will be more carefully matched than in the past and new developments related to fairly specific policies advanced in the national interest.
Although the variables of policy interaction in the world community
prevent confident predictions about the outcomes of large-scale investments in marine technology, certain developments can be expected. The
talents, training facilities and money available for the advancement of
marine technology will continue to be unevenly distributed among the
maritime countries.6 Disparities in scientific and technological knowledge
8 Id. at 77-80, 321-26.
4Compare H.BIGELOW, OCMAoOGRAm: ITS SCOPE, PROBLEMS AND EcoNowMc ImI'OR-
TANCE (1931) (Report of Comm. on Oceanography Nat'l Academy of Sciences), with the
same committee's reports, EcoNoMIc Bamns nom OcEAxorAPHac RESEARCH (1964),
and OCEAmOGRARHY 1960 TO 1970 (1962), and the uses and abuses of the sea categorized in
R EIF, TH UNrrED STATES AND THE TREATY LAW Or TBE SEA 18-72 (1959).
SSee, e.g., C. TROEBST, THE CONQUEST or T=E SEA pass' m (1963).
6The International Geophysical Year World Data Center for Oceanography at Texas
A. & M. College
tributed among
United Kingdom
(7), Yugoslavia
currently lists 342 major oceanographic research vessels in the world, disthirty nations: United States (166), Japan (25), Soviet Union (22),
(22), Canada (20), Norway (14), South Africa (8), France (7), Argentina
(5). The remaining twenty nations have less than five vessels each. 2
19671
LAW AND SEA TECHNOLOGY
may be even more serious than those created by the uneven distribution
of raw materials, since the former are less amenable to solution by international trade and financing arrangements. The international exchange
of scientific data and ideas can be expected to continue despite political
obstacles,7 but free exchange of the products of marine technology is more
difficult to envisage. Only those products that are relatively inexpensive
and nonstrategic in character are likely to be widely distributed among
maritime users. It is not fanciful to expect, however, that the leading
technological powers, moved by hypertechnical logic rather than the
spirit of altruism, will find it advantageous to provide navigation, weather
forecasting and other systems for general use." There may be a tendency
for permanent fixed installations to be made subject to widely shared
administrative authority, if hypertechnical logic dictates that these installations form part of a worldwide system which can only operate at
maximum efficiency through universal cooperation.
Before the extent to which the sea is likely to become subject to a
technologically inspired international law of cooperation can be examOCFANOGRAPMC VESSEs or THE WoRma (1965). This listing is, however, admitted by the
editors to be far from complete. In my estimation, it certainly fails to reflect accurately
the number of Russian research vessels known to be in service.
Another attempt to represent the concentration of oceanographic activity can be found
in the latest (1964) listing of known oceanographic scientists and workers totalling 2,607
among 79 countries (compared with 750 from 48 countries in 1950). The major oceanographic
powers by this reckoning are United States (540), United Kingdom (272), Soviet Union
(240), Japan (209), West Germany (131), Canada (128), India (64), Mexico (61), Norway
(53), France (52), Netherlands (50), Denmark (46), New Zealand (46), and South Africa (44).
NAT'L AcADEMy op ScExcEs, INTxnEoATONAL DRECTORY or OCEANOGRAPH'ERS (4th ed. 1964).
The two listings are quite closely correlated at the top; but it seems surprising, for example,
that fourieen Argentinian oceanographers enjoy the luxury of seven research vessels, while
their 131 colleagues in West Germany have only four. Compare id., with 2 OCEANOGRAPHIC
VssELs, supra. It is less surprising that Japan and Britain, both islands, are represented
among the most sea-minded populations in the world.
7The International Geophysical Year, sponsored by the non-governmental International
Council of Scientific Unions, was largely a triumph of science over politics. It was even
welcomed by the People's Republic of China; but on the eve of the IGY (June 29, 1957)
the Chinese committee of scientists officially withdrew in protest against the late admission
of a similar Chinese committee from Taiwan, which the Communists regarded as another
evidence of the "two China plot." U.S. CoNSuLATE, HONG KONG, No. 1564, SURvEY or CaNnA
AWALAND PREss 34 (1957) (English language broadcast by the New China News Agency
from Peking, June 29, 1957). Despite their formal withdrawal-the only one among sixtyseven nations-the Communist Chinese scientists seem to have carried out most of the
program originally planned. See SuLivAw, AssAuLT ON TH UNxNOWN 36-44 (1961). Their
program of seismic observations was expanded, apparently because it was regarded as essential to know the distribution of earthquake centres in planning the construction of dams,
bridges,
and other structures necessary to industrialization. Id. at 387.
8
Current developments in aviation technology suggest that certain features, such as
safety devices, are rapidly absorbed by all airlines-first by International Civil Aviation
Organization (ICAO) adoption, then by bilateral arrangements of nonmember competitors
such as the Soviet Union. 15 I.C.A.O. 19, I.C.A.O. No. A1S-P/58516 (1965).
CALIFORNIA LAW REVIEW
[Vol. 59: 449
ined, it is necessary to categorize the uses of the sea suggested by technology.
A. Animal and Vegetable Resources
The living resources of the sea are sharply distinguished from most
mineral resources because normally they can be widely shared and are
capable of perpetual self-renewal. By careful management and restricted
consumption they can be made to yield a steady harvest which will not
jeopardize their future yieldY But with increasing population pressures
on land food supplies technological developments in the detection, capture and processing of fish are expanding more rapidly than developments
in the technique of fishery management and conservation. The technologically available food products of the sea, including fish protein concentrate as an important additive to low-protein diets, are of immense
value. With the economies of large-scale industrial organization the fishing industries of advanced technological powers like Japan and the
Soviet Union will be able to supply these protein foods in a variety of
forms at relatively low prices."' To some extent it is possible to extend
pond fish culture to shallow areas of the coastal sea without large investments." In addition to fish and sea-mammals, the sea provides potential
food in abundance in the form of plankton and algae. 2 With further
9 D.M. JOUNSTON, supra note 2, at 3-21.
10 The modem fishing unit is a large, highly
mobile fleet that can operate continuously
for long periods of time in distant waters. It consists of highly mechanized catchers providing
a flow of catches to the mother ship and a floating factory with processing facilities (sometimes including a cannery) on board-all serviced by supply ships which can also deliver
the processed products directly to their markets. From pre-extraction investigation to the
wholesale phase of distribution, the industry operates autonomously at sea.
11 Significantly, Communist China has by far the largest yield from fish culture of any
nation in the world. In 1959 China produced 1.8 million metric tons of fish from fish culture,
which represented 35.8% of its total yield. Slightly more than half of this production was
carried on in the sea. U.S. FIsH & Wnrua SvicEw,
FIsHERIEsS OF COiMUIST C=A 3
(1966) (Foreign Fisheries Leaflet No. 104). See also PEKING Ramw, Nov. 12, 1965, p. 37.
12 On the prospect of harvesting marine plankton and cultivating algae in factories and
tropical ponds see 1 A.C. HARDY, THE OPEN SEA: ITS NATURAL HISTORY (1956); 7 PROCEED3N0S OF THE U.N. SCI NTC CONSRRENCE ON THE CONSERVATION AND U IIZATION Or RzsOuaczs 174-86, U.N. Doc. E/CoNP.7/7 (1949); H.B. S"EwART, TrE GLOBAL. SEA 97-102
(1963) ; C. TROEBST, supra note 5, at 141-50. Aquaculture is being developed on a significant
scale in Japan. Report on United Nations Conference on the Application oj Science and
Technology for the Benefit of Less Developed Areas, in 1 ScGENcF AND TECHNOLOGY YOR
DEVELOPIMNT 53, U.N. Doc. E/CoNT.39/1 (1963). Some people resent "heroic" attempts to
solve population problems by seeking massive new supplies of food, arguing that it is entirely
the wrong approach. But surely no one seriously believes that the world's population can be
stabilized through voluntary birth control within the next fifty years, and the majority of
people everywhere are opposed to coercive measures. In the absence of overwhelming
catastrophe, the world is faced with the certainty of having to find food for a doubled and
redoubled population within a couple of generations. The manufacture of synthetic foods
is a possible venture, but this aspect of food technology is still in a primitive phase.
LAW AND SEA TECHNOLOGY
1967]
developments in underwater navigation, sea farming (or "aquaculture")
may realize a more brilliant future than the cultivation of land, which is
limited to a few inches of topsoil. At present only one per cent of man's
food comes from the sea; yet the sea covers seventy-one per cent of the
earth's surface and possesses a vastly greater proportion of cultivable
space when its depth is taken into account.
Apart from food for direct human consumption, the living resources
of the sea, along with some minerals, are used for animal feed, fertilizers,
oils and fats, pharmaceutical products, and a host of other purposes.
B. Mineral Resources13
The nonliving elements in the sea are of inestimable value whether
dissolved in the water or deposited on the continental shelves and the
deep sea floor. The most immediate development will be in the exploitation of petroleum and natural gas. It is estimated that the ultimate petroleum potential of the shelves of the United States alone may range up
to 35 billion barrels of petroleum liquids and 170 trillion feet of natural
gas. 4 Substantial industries extract sodium chloride, sodium sulphate,
potassium chloride, bromine, magnesium chloride and magnesium metal
from the sea. Recently developed mining techniques are rapidly opening
up an entirely new age of wealth in marine minerals. 5
In the case of hard minerals and fossil fuels, the factors of limited
shareability and limited renewability involve fundamentally different
processes of use and concepts of conservation from those of living resources.' 6 But the cycle of constant renewal in the ocean ensures an
13 "Mineral resources" refers to "those elements or compounds which are normally used
or marketed in an inorganic form whether or not their mode of genesis was due to organic
or inorganic processes." J. MRO,Tn MmniA REsoucEs or THE SEA 2 (1965).
14 Nelson & Burk, Petroleum Resources of the ContinentalMargins of the United States,
in ExpvzormG
=
OcEr 116 (1966)
(papers presented at the Second Annual Conference
of the Marine Technology Society).
15 "Substantial engineering data and calculations show that it would be profitable to
mine materials such as phosphate, nickel, copper, cobalt and even manganese at today's
(1964) costs and prices. And I firmly believe that within the next generation the sea will
be a major source of not only those metals, but of molybdenum, vanadium, lead, zinc,
titanium, aluminum, zirconium, and several other metals as well." J. MERO, supra note 13,
at 275. Moreover, "the seafloor nodules should prove to be a less expensive source of
manganese, nickel, cobalt, copper, and possibly other metals than are our present land
sources." Id. at 280. It may be true that the discovery of fossil fuels in the sea will merely
delay the replacement of conventional sources such as atomic or solar energy, but the sea
will continue to provide heavy hydrogen as a fuel for thermonuclear power stations. The
discovery of certain minerals may only postpone the inevitable transfer to plastic materials,
but it is hard to believe that the end of our age of steel is imminent. By virtue of technical
innovation the increase in available mineral reserves in the sea may be roughly proportionate
to the increase in world consumption. Id. at 273. See also Mero, Review of Mineral Values
on and Under the Ocean Floor, in EXPLOIT=nG TEM OcEAN, supra note 14, at 61-78.
26 "Many elements are accumulating in the manganese nodules now forming on the
CALIFORNIA LAW REVIEW
[Vol. 55: 449
almost limitless use of desalinized sea water for human consumption,
industry and, eventually, irrigation. 7 By the same token, there is a
virtually endless supply of important chemicals, such as salt, precluding
the possibility of allocation problems arising within the foreseeable
future.
C. Transportationand Communication
Navigation has always been the crucial factor in developing the uses
of noncoastal surface areas of the sea. Despite the advent of the airplane
the sea is still the major highway for the long distance carriage of goods,
and it is busier than ever. Nuclear-powered merchant ships and improvements in the handling of cargoes promise to bring substantial cost reductions in the freight trade. Another important feature of modern marine
technology is the development of submarine and seabed transportation
assisted by "spin-off" contributions from electronics, space and computer
technology. The use of complex detection and communication systems
will eventually replace the traditional methods of navigation.1 8 One envisages submersible freighters and barges, sheltered from wind and
waves, "towing behind them a chain of enormous, sausage-like containers . . . almost a mile long, transporting some 75 different liquids
ranging from oil, petrol, alcohol and acids to fine-grained materials like
cement or grain."' 9 Submarine buoys will mark out waterways under
the surface with traffic stacked in layers like air traffic today. Eventually, no doubt, navigation will become automatic with traffic passing
from buoy to buoy like guided missiles. At this stage, submarine ships
would be able to dispense with expensive inertial navigation equipment.
Communications will be organized through a system of fixed stations in
the sea, satellites in space, or a combination of the two.
Pacific Ocean floor faster than they are presently being consumed, in fact, three times as
fast in the case of manganese, twice as fast in the case of cobalt, as fast in the case of nickel
and so on. As in the case with many mineral deposits of the sea, the manganese nodules
would be a renewable resource. The fact that many deposits of the sea are renewable
resources is, of course, of academic interest only, for the reserves of the minerals contained
in presently mineable deposits are generally measured in terms of hundreds of thousands
or millions of years." Mero, Review of Mineral Values on and Under the Ocean Floor, in
ExPLor
G THE OcEAN, supra note 14, at 76.
17 However, the cost of desalinizing seawater on the scale required for irrigation probably
will remain prohibitive for some time.
18 The new method of inertial navigation (ship inertial navigation systems or SIMS)
enables submarine craft to remain exactly on course for weeks on end without surfacing.
C. TRomxsT, supra note 5, at 98-99. For a review of recent developments in navigation
technology, see Mackenzie, Position Determination Under the Sea, in E.KLorrmo T=E OCEAN,
supra note 14, at 147-57.
19 C. TroE sT, supra note 5, at 97-98. These flexible containers, already in service to a
limited extent, are more useful for carrying liquids which would not have to withstand
pressure in deep waters.
19671
LAW AND SEA TECHNOLOGY
D. Military Security
In recent years the military significance of the sea has become a
function of nuclear capacity. Military marine technology has been
shrouded in secrecy, even in the United States where some of the strategic aspects of space technology are widely publicized.2 ° It is known,
however, that the sea is now the focus of vast investments in defense
techniques by the Soviet Union and the United States. Submarine missile systems are gradually replacing air force units and surface fleets as
the chief component of strategic capability for nuclear powers, since the
sea still provides the largest space in which attackers and their weapons
can avoid detection. There are reports that submarine detection systems
of "electronic fences" may soon be built around the coasts of North
America to warn against surprise attacks. 21 It is certain that at least in
the nuclear states the sea has received top priority rating from the military planners and that oceanography and the related techniques will continue to receive very large government funds for strategic studies.22
These investments in military marine technology are bound to produce
significant benefits for nonstrategic uses of the sea.2
E. Weather Forecastingand Climate Control
Advances in weather forecasting by land stations are unlikely; further development in meteorology will come from artificial satellites and
from stations in the sea. Improvements can be made in short-range forecasting for coastal areas where the prevailing winds blow onshore by
investigating the interrelationships beween sea and atmosphere. Longrange forecasting is still in its infancy, but present developments in
space, marine and computer technology would permit the continuous collection of data on a worldwide basis resulting in accurate fourteen-day
forecasts.2 4 "A system consisting of satellites interrogating and transmit20
But even Russian readers are familiar with the U.S. Navy's program in nuclear-power
submarines and with its man-in-the-sea Genesis 1 Project. 5 OcAEONro OO 124 (1965).
21 C. TROEBST, supra note 5, at 60-80.
22
The U.S. Navy is reported to be spending more than $25 billion per year with almost
$400 million specified for research and development. Martell, Defending the Sea, ImusnpiA_
RESEARCaH, March 1966, at 95. Various aspects of the U.S. Navy's oceanographic research
program have been criticized recently in a published report: "If the Navy does not adequately
pursue programs recommended in this report... program responsibilities for man-in-the-sea
and undersea technology should be shifted to a civilian agency." D. HoRIo, THE Erc=
UsE op =E SEA, quoted in Oceanography Nears High Tide, Busnrss Wann, Aug. 6, 1966,
at 52.
23 Itis evident that military experiments with the Nautilus-type submarine by the U.S.
Navy in the 1950's prepared the way for the first nuclear-powered surface freighters appearing in 1960. Developments in inertial navigation and electronic detection systems obviously
improve the prospect of undersea commercial freighters.
24A recent report concludes that on the basis of the most realistic general circulation
CALIFORNIA LAW REVIEW
[Vol. 59: 449
ting information for sensors on balloons and oceanic buoys, as well as
making remote radiometric measurements," has been recommended as
scientifically and economically feasible. 5 With increased knowledge, success can be expected with limited experiments in weather modification
and eventually perhaps with more ambitious projects in climate control
designed to render all parts of the globe habitable, cultivable and amenable in response to population pressures. 6
F. Scientific Investigation
In addition to serving government or commercial projects directed
at facilitating the technologically controlled uses of the sea, marine science constitutes a relatively new channel for man's intellectual curiosity
and sense of beauty and adventure. Though cast in the role of handmaiden to technology, marine science will also serve as a warning system,
flashing signals when abuses of the sea are discovered. As a relatively
safe space for recovery of capsules, the sea also marks the termination
of scientific investigations of outer space and may itself be studied from
space.
28
G. Storage and Disposal
Innovations in the technology of materials, agriculture and food,
especially in economies geared to overproduction, may be expected to
create both the problem of storing surplus stocks in bulk and the means
of solving it with large safe containers. 9 Since the range of temperatures
in the ocean is narrower than on land, the sea has great possibilities both
in its temperate and frigid zones as a giant storage room for perishable
models available "the limit of determinate predictability for the atmosphere is about two
weeks in the winter and somewhat longer in the summer." CoMM. ox PoLuTiUoN, NAT'L
ACADEmY or ScJEcs-NAT'I. RESEARCr CouNCH., PuB. No. 1290, TiE FFAsmiBrrY OF A
GLOBAL OBSERVATION AND ANALYSIs EXPERIMENT 31 (1966).
25
Id. at 5.
26
The development of high-speed. automatic computers has accelerated progress in constructing mathematical models for studies in weather and climate modification; but "there
is, at present, no known way deliberately to induce predictable changes in the very largescale features of climate or atmospheric general circulation." 1 PANEL ON WEATHER AND
CLIMATE MODIFICATION TO THE COMM. ON ATmosPHERIC SCIENCES, NAT'L ACADmy oi?
SCIENCES-NAT'L RESEARCH CouNCIL, PuB.No. 1350, WEATHER AND CLIMATE MODIFICATION:
PRoBL. s AND PROSPECTS 8 (1966).
27Dangers such as fishery depletion, radiation, and pollution by oil may be discovered
in the course of marine research conducted independently of specific investigative projects.
28 See generally OCEANOGRAPHy FROM SPACE (1965) (Proceedings of Conference on Feasibility of Conducting Oceanographic Explorations from Aircraft, Manned Orbital and Lunar
Laboratories, held at Woods Hole, Mass., in August 1964).
29
.Containers are being developed for carriage of goods by sea. Containerization,MARINE
ENGINEERING/LoG, June 1966, at 67. But it seems likely that these techniques will be applied
eventually to storage of goods in the sea.
1967"1
LAW AND SEA TECHNOLOGY
materials; the Antarctic has some additional advantages as a freezing
compartment. As the biggest hole in the world, the sea would also be
very useful for guilty parties with something to hide. Nuclear missiles, for
example, could easily be hidden in the sea. The means of launching them,
however, would require either men or an elaborate, and therefore easily
detectable, system of electronic devices.
Industrial civilization has not only generated periodic overproduction
but it has also aggravated the problem of waste materials. Disposal of
these materials in the sea is often the simplest and cheapest solution,
though it sometimes raises dangers of pollution and fears of radiation.3
H. Emerging Uses of the Sea
1. Power
The principle of tidal power has been understood since the use of
tide mills in the late Middle Ages, but it has only recently been applied
to the large-scale generation of electricity.3 1 This source of energy will
be too expensive in relation to other sources for all but the most techno30
The sea has long been used for sewage and refuse disposal. More recently in North
America it has become a popular place for the dumping of old motor vehicles, which
incidentally provide fish with excellent breeding grounds. But the disposal of radioactive
waste materials has raised fears of contamination on a new scale of magnitude. There are
three types of radiation hazards in the sea: "1. direct hazards, in which a sufficient concentration of radioactive material exists to injury anyone in contact with it; 2. indirect hazards,
from the concentration of radioactive wastes by organisms living in the sea and their subsequent use as human food; and 3. ecological hazards that may produce unpredictable changes
in the biological communities in the ocean." Wallen, Atomic and Other Wastes in the Sea, in
Ocrm ScIEncrs 123 (E.J. Long ed. 1964). The four major sources of radiation hazards at
sea are nuclear power plants, laboratories, oceanic experiments and nuclear explosions.
Fortunately the dangers seem to spring chiefly from industrial uses, which are more easily
controlled than, say, government defense experiments. "Within the foreseeable future the
probleii of disposal of atomic wastes from nuclear fission power plants will greatly overshadow the present problems posed by the dispersal of radioactive materials from weapons
tests." Revelle-Schaefer, General Considerations Concerning the Ocean as a Receptacle for
Artificially Radioactive Materials, in Commr. OF NAT'L ACADEMY OF SCIENCES-NAT'L RESEARCH CouIxcn, EFFEcTs oF ATOMIC RADIATION ON OCEANoGRAPHY AND FISmMzES (Pub.
No. 551, 1957). See generally NAT'L AcAor.wy or SCINCE-NAT'L REsEACr CouNCI, THE
BIOOICAL ErECs oF ATOMIC RADIATIoN (1960); Water, INT'L ATOMIC ENERGY BLL.,
Sept. 1966, at 6.
31 Communist China has built a large number of small, low-cost tidal power stations. A
larger tidal generating station being built on the estuary of the river Rance near St. Malo
will feed about 560 million kilowatt hours into the French grid. This station is expected to
be incorporated into the much larger Isles des .Chaussey project, which would involve building a dam across the bay of Mont St. Michael and would provide half of France's present
electricity consumption. Currie, Conservation and Exploitation of the Sea, in REPoRT oF
CONFERENCE ON LAW AND SCIENCE 53 (1964) (David Davies Memorial Institute of Int'l
Studies and British Institute of Comparative and Int'l Law). This French project is being
watched carefully in the United States, Canada and Britain, and similar plans have been
suggested for Passamaquoddy Bay and the Severn Estuary.
CALIFORNIA LAW REVIEW
[Vol. 55: 449
logically advanced powers. Wave power constitutes another potential
source, but its use lies in the more remote future.
2. Recreation and Therapy
With expanding leisure the increasing attractiveness of the sea for
surface water sports is already much in evidence. One effect of marine
technology will be to extend the range of underwater recreation far
beyond the present sport of scuba diving. In a highly educated, scientifically oriented society with increasing leisure, we may also witness
widespread "amateur" participation in scientific investigations both on
and under the surface. In the more remote future one can envisage underwater recreation and vacation areas and restful underwater sanatoriums
for recuperation from various disorders and anxieties produced by the
strains of technological society on land.
3. Residence
The logical culmination of increased use of the sea is the complete
adaptation of man to life in the sea. Experiments along these lines in
Monaco and the United States have received wide publicity. 82 At the risk
of losing credibility it should be pointed out that serious suggestions
have been made for surgical experiments in adapting the human body
for a normal life under water so that communities can eventually be
established in the sea. Such radical human resettlement may be feasible,
given the failure of all terrestrial solutions to the population problem
together with a preference for marine life rather than resettlement on
another planet. The limited alternatives available for human survival in
the event of a nuclear holocaust might also cause man to relocate his
83
society under water.
TECHNOLOGY AND THE INTERNATIONAL LAW OF THE SEA
All law can be regarded as a technique of human organization. In
the world community international law offers a system of order for coping with diverse and unruly subjects. Legal management of the sea is
321. COUSTrnAU, Wo=r
WroUr SUN (1965);
NAT'L GEOGRAPHc 465 (1964); Link, Outpost Under
(1965); Link, Tomorrow on the Deep Frontier, 125
Our Man-in-Sea Project, 123 NAT'L GEOGRAPHIc 713
Cousteau, At Home in the Sea, 125
the Ocean, 127 NAT'L GEormAPic 530
NAT'L GEOGRAPHIc 778 (1964); Link,
(1963).
83 "The ocean offers certain survival advantages to man in case of nuclear war, since
within a few hours, dilution would bring the levels of radioactivity near the water surface
to a level much lower than on land surfaces where the isotopes would be concentrated in
the first centimeter of soil. In addition, since water is an excellent shield for protection from
radiation damage, pelagic fish are likely to be the least harmed of all natural resources."
Wallen, supra note 30, at 135.
19671
LAW AND SEA TECHNOLOGY
complicated because the sea offers both a vast complex of physical resources and an unoccupied space available for expanding human activities.
The living resources of the sea participate in a system or chain of
interdependent processes which include those of human life on land. 4
This ecological aspect of the sea has raised a cautious, scientific concern
for preservation of marine resources which is founded on the principle
of harmony or balance reminiscent of the ancient confucian concept of
order. One legal writer has isolated a particular feature of marine ecology,
namely water supply, for special attention; and a case has also been
made for a separate system of fuctional authority over fishery use of
the sea.36
The nonliving resources reflect a different aspect of the sea-as a
physically and economically limited supply of raw materials for industrial
production. This productive use of the sea may be affected by the rate
at which scientific discovery and technological innovation harness new
sources of energy and by increased needs for building materials and an
unforeseeable range of industrial products. In the case of nonliving resources international law seems less likely to exercise restraint on the
hypertechnical logic of efficiency than in the case of living resources
where the sense of equity is more sharply focused on basic human needs.
More than any other aspect of sea use control, fishery interests have
provoked emotional disputes and irrational claims. Some of these claims
34
Technological man is likely to become one of the most voracious predators of marine
species. Relatively little is yet known about the chain of effects caused by drastically increased
intensity of fishing on existing biological and chemical relationships in the exploited areas.
35 Eek, The Hydrological Cycle and the Law of Nations, in SCANmDAvIAN STUDIES IN
LAw 52 (1965), suggests the need for developing worldwide functional authority over all
water, not merely the sea. "Indeed it may be necessary, at some stage, to reconstruct the
existing body of international law in the light of the importance of water as a basic
commodity for mankind as a whole. The rules relating, for instance, to the high seas or
international waterways have been developed during different periods of history, and their
basis is often conceptualistic rather than functional. It seems possible that a common functional denominator could be found for 'water law' as a whole, with the main emphasis put
on the various purposes for which water is being used rather than on the areas where water
is found." He cites the Lower Mekong River Plan as a pilot project worthy of study, not
least because it is the first effort of its kind under United Nations auspices and uses the
social as well as the natural sciences to solve the hydrological problems involved. He believes
that with the recent establishment of the Water Resources Development Center of the
United Nations Secretariat there is some recognition of the need for a world community
agency to deal with political and legal matters related to the use of the world's waters. He
shares this writer's belief that the International Law Commission is overworked and unsuitable for promoting legislative development in this area. Id. at 90.
The focus on hydrological research by various international organizations, such as
UNESCO and World Meteorological Organization (WMO), has been dramatized by the
inauguration of the International Hydrological Decade (1965-1974).
86D.M.Jomismow, supra note 2.
CALIFORNIA LAW REVIEW
[Vol. 55$: 449
are scarcely amenable to dispassionate analysis of costs and benefits.
Questions of mineral exploitation seem more likely to be discussed in
the language of economics common to government departments and
industrial enterprises.
It is less easy to make confident projections for the other uses of
the sea. Without making unwarranted assumptions about the relative
future inputs of investment in these uses, it is impossible to foresee the
probable state of social organization in the world community. Insofar
as the emerging pattern of authority over the uses of the sea will be
influenced by the timing, origin and nature of these inputs, it might be
supposed that as long as the nation-state system is a basic feature of the
world community, investments in military defense and energy, as well
as mineral exploitation, will be made with the expectation of exclusive
or primary benefits for the investor. But the development rate of weather
modification and prediction, transportation and communication, storage
and disposal, recreation, therapy and residence will depend on advances
in scientific investigation which to be fully effective require cooperation
through worldwide systems of data collection and dissemination. To
the extent that this minimum condition is met, we can anticipate an
emerging worldwide technological order of the sea which will tend to
favor inclusive authority over these uses. As maritime activities multiply
in these and the other categories of uses of the sea and as international
principles and procedures of control become necessary to coordinate the
schemes of functional authority, there will develop an overall system
of modified authority, neither wholly inclusive like the classical freedom
of the high seas nor wholly exclusive like the classical restraint of the
territorial sea." If the control and regulation of this worldwide technological order of the sea requires government by scientific elites, at least
the elites are likely to be large and open-ended. Scientific elites are likely
to grow in size as the frontiers of science continue to expand. The rapid
expansion of knowledge will protract education and heighten specialization making older scientists less secure or even obsolete and concentrating knowledge-based power in the thirty to fifty year age group.
As for the present and recent past, -the technological significance of
certain trends in the processes of claim and decision affecting the sea
can be summarized within the categories used above.
37See generally M. McDouGAL & W.T. BuRxE, THE PuBac ORDER OF ME OCEANS
(1962), which comprehensively details recent trends in the process of claim-making to exclusive and inclusive uses of the sea and provides a sophisticated framework of concepts by
which conflicting interests can be accommodated in the general interest of the world community. For a development of this analysis related to the future technology of the sea,
see W.T. BuRKE, OcEAx SCmNCES, TEcnoLOGy AM THE FuTuRE INTERNATioNAL LAW OF
SSEA (1966).
19671
LAW AND SEA TECHNOLOGY
A. Animal and Vegetable Resources
In 1958 the United Nations Conference on the Law of the Sea at
Geneva formally codified a large body of rules based on draft articles
prepared by the International Law Commission. Those dealing with
fishery use were brought together in the form of a separate convention,
the Convention on Fishing and Conservation of the Living Resources
of the High Seas, which purported to represent "progressive development" of international law rather than a restatement of customary law.
Most of the articles in the convention are confined to principles and
procedures for the allocation and application of conservation authority.
They reflect the substantial influence on the members of the International Law Commission of the recommendations of the marine scientists
at the International Technical Conference on the Conservation of the
Living Resources of the Sea convened by the United Nations at Rome
in 1955.11
In retrospect it is clear that the scope of the Rome conference should
have been broadened to allow evidence to be heard on the rapidly developing techniques of fish detection, capture, processing and distribution3 9
so that the Commission would have been persuaded to give the same
weight to the problems of allocation as it did to those of conservation.
With a clearer view of the trends in fishery technology the Commission
would have been less inclined to treat fishery problems as a special aspect
of the law of the high seas. The approach taken unfortunately confirmed
the tendency of nation-states to proclaim sovereign control for all purposes over artificially determined compartments of the sea. 0 With the
38
For example, the Rome Conference defined the principal objective of conservation as
"optimum sustainable yield so as to secure a maximum supply of food and other marine
products." REPORT OF THE INTERNATIONAL TECHNICAL CONFERENCE ON THE CONSERVATION
OF THE LIVING RESOURCES OF THE SEA § 18, U.N. Doc. A/CoNP. 10/16 (1955). This biological
objective, crucial to the theory of fishery conservation, was accepted more or less uncritically
by the International Law Commission. It found its way into article 2 of the Convention
on Fishing and Conservation of the Living Resources of the High Seas despite serious objections that can be raised against it. D.M. JOHNSTON, supra note 2, at 49-55; M. McDouGAL
& W.T. BURxE, supra note 37, at 453-82. Of equal importance were the Conferences refusal to adopt the "bioma" theory as the proper basis for management programs and its
recommendation that preference be given to negotiated schemes of international fishery
regulation based on the geographical and biological distribution of the fishery resources.
D.M. JOHNSTON, supra note 2, at 333-41, 411-15.
30 On the Rome terms of reference see D.M. JOHNSTON, supra note 2, at 344, n.81;
H. VISSER'T HoorT, LES NATIONS UNIES ET LA CONSERVATION DES RsSOURCES DE LA MER
37-45 (1957).
40 One effect of expanding technological uses of the sea will be to focus legal attention
more upon the nature of the activity rather than upon the locus. The developing pattern of
functional authority in the sea will be determined by various factors, including that of
distribution; and within any scheme of functional authority the allocation of particular
CALIFORNIA LAW REVIEW
[Vol. 55: 449
failure to define uniform limits for territorial and fishery compartments
in 1958 and at the succeeding Geneva Conference on the Law of the Sea
in 1960, anarchy and irrationality have ensued; each state feels free to
declare unilaterally the limits of its own fishing zone, subject to its own
exclusive authority without any apparent realization of the futility of
such exercises in self-assertion. In making these claims, states have been
motivated by notions of expedience which are scientifically ill-conceived
for there is no evidence whatsoever that exclusive coastal fishing zones
have any beneficial long-term effects for the domestic fishing industry. 41
In summation, it can be said that marine science has been only partly
successful in teaching governments the special nature of fishery problems
and that international law has failed to accommodate itself to the realities of modern fishery technology. One probably beneficial consequence
of this failure has been an accelerating trend in the regionalization of
fishery authority and in the development of economic cooperation as
an alternative to the law in helping to solve certain problems of allocation.42
B. Mineral Resources
The Convention on the Continental Shelf, also signed at Geneva in
1958, granted the coastal state "sovereign rights" over the shelf "for the
purpose of exploring it and exploiting its natural resources.14
These
resources are defined to include "the mineral and other non-living resources of the seabed and subsoil. 44 This extraordinary grant of exclucompetences will depend upon a variety of considerations, including that of locality. DM.
JOHNSTON, supra note 2, at 82-110; see also Eek, supra note 35.
41Most assertions at present are limited to a twelve-mile zone measured from the
baseline of the claimant's territorial sea. The "contiguous fishery zone" recently claimed by
the United States extends nine miles beyond the seaward limit of its territorial sea which
is still limited to three miles. 16 U.S.C. §§ 1091-94 (1966). Statesmen may pride themselves
on their diplomatic restraint, and lawyers may rejoice in the appearance of uniformity, but
twelve-mile limits of exclusive authority over fish are meaningless in science and technology.
The United States legislation was enacted under strong pressure from the domestic fishing
industry. One can scarcely resist speculation that it was intended to strengthen the hand of
American diplomacy in current fishery negotiations with the Japanese. Note, 8 HARV. INT'L
L.J. 156 (1967). In a recent agreement the United States has permitted Soviet vessels to
continue fishing within the nine-mile zone in coastal areas of the American Pacific coastal
waters. U.S. BuRaAu or COM=RciCL FIsHEmRIEs, MARxT NEWS SERVICE, FISHERY PRODUCTS
RzPORT B-29 (Feb. 10, 1967). United States-Japanese fishing discussions adjourned on
February 21, 1967 without reaching a similar agreement. U.S. BUREAU OF COMMERCIAL
FIsHElUs, MAnR= NEWS SERviCE, FISHERY PRODUcTS REPORT B-37 (Feb. 24, 1967).
421nstead of disputing each other's fishing rights in a given area of common interest,
commercial
enterprises of two or more states are discovering that it can be more profitthe
able to integrate their activities in the industrial process of getting fishery products into
expanding international markets. See Johnston, New Uses of International Law in the North
Pacific, in Symposium-North Pacific Fisheries,42 WASH. L. REv.-(1967) (to be published).
43Law of the Sea: Convention on the Continental Shelf, opened for signature April 29,
1958, art. 2(1), [1964] 15 U.S.T. 471, T.IA.S. No. 5578.
44
1d. art. 2(4)
1967]
LAW AND SEA TECHNOLOGY
sive authority is accompanied by various provisos that reflect awareness
of competing technological uses of the sea which should not be subjected
to unreasonable restraints by the coastal state in exercising its "sover45
eign rights" over the continental shelf.
Since these resources do not lend themselves naturally to perpetual
and inclusive use, this further intrusion of national authority into the
sea can be regarded as a sensible concession to the wishes of most states
to work out the implication of hypertechnical logic in their own way even
though their capacity to do so varies enormously. The new international
law of the continental shelf does, of course, sanction a further widening
of the gap between rich and poor, but this would have been the effect
under any conceivable formula, and mitigating factors lie mostly beyond
the law. The legal definition of continental shelf in the convention, at
variance with those used by scientists,4" serves as a diplomatic compromise between conflicting national interests. Regardless of the technological
capability of a coastal state, it has exclusive authority over the seabed
and subsoil of extraterritorial submarine areas adjacent to mainland
and island coasts to a depth of 200 meters; beyond that depth the coastal
state's authority extends as far as "the depth of the superjacent waters
admits of the exploitation of the natural resources of the said areas."47
This ambiguously worded dual criterion of depth plus exploitability
creates problems of interpretation; even more seriously, the rapid progress toward deep ocean mining has put the applicability of the whole
convention in question.48
45 "The rights of the coastal State over the continental shelf do not affect the legal
status of the superjacent waters as high seas, or that of the airspace above those waters."
Id. art. 3. "Subject to its right to take reasonable measure for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede
the laying or maintenance of submarine cables or pipelines on the continental shelf." Id. art. 4.
"The exploration of the continental shelf and the exploitation of its natural resources must
not result in any unjustifiable interference with navigation, fishing or the conservation of
the living resources of the sea, nor result in any interference with fundamental oceanographic
or other scientific research carried out with the intention of open publication." Id. art. 5(1).
See also id. arts. 5(5-7).
46For various definitions of the continental shelf, see M. MouToN, TnE CONTINmNTAL
SHEEP 6-12 (1952). Strictly defined, the shelf is the outer edge of the land mass, on its
underwater projection, before it falls away more or less abruptly to abyssal depths. Some
scientists distinguish between "inner" and "outer" shelves, "continental" and "insular"
shelves, "real" and "false" shelves. Geologically, the shelves are regarded as an integral part
of the continental land mass extending inland from the shoreline to the foothills of continental highlands as well as outward to the edge of the deep ocean basins. The geologist
focuses on continuity, not contiguity. C.M. FRANx=, THE LAW Or TnE SEA: Somm RECENT
DEvELOPENTs 16-17 (Naval War College International Law Studies 1959-60 No. 53, 1961).
47Law of the Sea: Convention on the Continental Shelf, opened for signature April 29,
1958, art. 1, E1964] 15 U.S.T. 471, T.I.A.S. No. 5578.
4DM.JoHNsToN, supra note 2, at 226-40. Many experts are convinced that oil mining
at a depth of 500 meters will be in operation by the mid 1970's, and it may already be
technologically feasible to retrieve manganese nodules from any depth. For recent discussions
CALIFORNIA LAW REVIEW
[Vol. 55: 449
C. Transportationand Communication
The principle of the freedom of navigation is so old that the history
of the international law of the sea virtually begins with the ius communicationis, the right to conduct international commerce without restraint.
Since transportation and communication are basic to all other uses of
the sea, the principles of uniformity and reciprocity were retained in the
structure of maritime law erected at Geneva. But even in the conventions
of 1958, and especially in the behavior of states since then, certain nonuniform and nonreciprocal rights or privileges are put forward as justifiable if based on reasonable and equitable considerations. Reciprocity
is still the basis for the universal prohibition against unilateral restraints
beyond territorial limits, 49 but in practice these limits are often defined
by the coastal state in accordance with its own conception of what is
reasonably necessary to protect its own interests. Reciprocity has also
been expressed in the doctrine of innocent passage"0 which is tantamount
to a prohibition against unreasonable restraints by the coastal state
within its territorial limits. The notion of reasonableness is bound to
undergo major modification with developments in surface stations and
underwater navigation. Declared law does not yet reflect these trends.
It may be anticipated that technological change will cast doubt on the
traditional distinction between territorial and extraterritorial waters. A
more useful approach would be to recognize sovereign control over a
contiguous zone suitable in scope for the performance of various tasks
in port entry and clearance. 1
D. Military Security
The nuclear bomb tests in the Pacific by the United States and
Britain subjected the classical doctrine of the freedom of the seas to
unprecedented strains5 2 illustrating that in matters of military security
of the Convention on the Continental Shelf and its applicability to deep sea mining, see
Bennett, Legal Climate for Underseas Mining, in ExPLomn'o Ti OcEAN, supra note 14, at
204; Ely, The Laws Governing Exploitation of the Minerals Beneath the Sea, id. at 373;
Tubman, The Legal Status of Minerals Located on or beneath the Ocean Floor beyond the
Continental Shelf, id. at 379; Weber, Our Newest Frontier: the Seabottom. Some Legal
Aspects of the Continental Shelf Status, id. at 405.
49
Law of the Sea: Convention on the High Seas, opened for signature April 29, 1958,
[1962] 13 U.S.T. 2312, TI.A.S. No. 5200.
50 The customary right of innocent passage through the territorial sea of a coastal state
is now reaffirmed. Law of the Sea: Convention on the Territorial Sea and the Contiguous
Zone, opened for signature April 29, 1958, arts. 14-17, [1964] 15 U.S.T. 1606, T.I.A.S.
No. 5639.
51 Under present conventional law, those states which still refrain from claiming a
twelve-mile territorial sea are entitled to exclusive preventive and penal competence, within
a contiguous zone up to the twelve-mile limit, over their customs, fiscal, immigration and
regulations applied to their territory and territorial sea. Id. art. 24.
sanitary
52
Margolis, The Hydrogen Bomb Experiments and International Law, 64 YAuLE L.J.
19671
LAW AND SEA TECHNOLOGY
the lack of precedent in international law has limited inhibitive effect
upon great powers. Even the hypertechnical logic of modem technology
can scarcely be expected to modify the force of basic strategic necessity
as each great power conceives it. One effect of the Antarctic Treaty of
195911 and the 1967 Treaty on the Peaceful Uses of Outer Space 4 is to
leave the sea and airspace as the main unoccupied spaces legally available
to the signatory states for war-making and related activities. It is significant that territorial claims and military uses are banned in both
treaties. The link between territoriality and security is suggestive: Perhaps security, the first reason for a territorial sea, is the last remaining
cogent reason for retaining the territorial sea. But assuming that law
can protect coastal defenses in this age of rapid technological innovation,
it still seems logically unnecessary to retain the fiction of territoriality
in the sea to authorize the legitimate security interest of the coastal state
in its coastal waters. With these two treaties and the 1963 Nuclear Test
Ban Treaty as encouraging precedents, we might envisage some form
of legal restraint upon large-scale coercion through collective security
arrangements based on the most up to date detection devices. Perhaps
for all but the most formidable technological powers, the stakes involved
would scarcely justify the enormous cost of developing the means of
evasion.
E. Weather Forecastingand Climate Control
As a special application of scientific investigation, weather forecasting lends itself easily to international cooperation. But, as in the case
of fishing regulations, difficulties arise when suggestions are made for
international control. The anticipated complexities in the international
control of climate may be comparable to some extent with those actually
involved in the international control of fishing. 5 In the meantime international agreements guaranteeing peaceful uses of outer space, reinforced
by the adoption of the principle of the freedom of the high seas,5 6 create
629 (1955); cf. Mcfougal & Schlei, The Hydrogen Bomb Tests in Perspective: Lawful
Measures for Security, 64 YALE L.J. 648 (1955).
53
Antarctic Treaty, Dec. 1, 1959, [1961] 12 U.S.T. 794, T.I.A.S. No. 4780, 402
U.N.T.S. 71.
54
Text in 55 DEP'T STATE BuiL. 953 (1966).
55 Complete knowledge about the earth's weather system seems a less remote objective
than complete knowledge about the life cycles of all living species in the sea. But the progress
of weather science and technology may be affected by popular revulsion against the idea
of weather control in general and by government revulsion against international control over
allocation of weather "resources." At first impression, however, there seem to be interesting
similarities in the principles of management for weather and fishery resources. Perhaps the
best way of helping future generations with the former is by making headway now with
the latter.
GOLaw of the Sea: Convention on the High Seas, opened for signature April 29, 1958,
art. 2, [1962] 13 U.S.T. 2312, T.I.A.S. No. 5200.
CALIFORNIA LAW REVIEW
[Vol. 55: 449
favorable conditions for continuing international cooperation in meteorology. Some institutions of the International Geophysical Year were
retained on a continuing basis to ensure a constant flow of scientific data
on a worldwide basis, and in the same spirit a World Weather Watch
5 7
is being organized.
F. Scientific Investigations
International cooperation among scientists is an old story, but the
necessity for vast government involvement in the financing and supervision of oceanographic research will draw out the much debated scienceand-government issues into the world community, where the scientists
are more likely than the governments to find strength in unity. In the
meantime international scientific organizations continue to mushroom,18
and international scientific cooperative projects have a habit of acquiring
their own momentum. 59
57
As far as the sea is concerned, the watch will be kept on weather ships and automatic
buoys, both anchored and drifting. It will be financed mainly through voluntary contributions
to the World Meteorological Organization (WMO), a specialized agency of the United
Nations which in 1951 replaced the nongovernmental International Meteorological Organization. But contributions are also made by government weather stations in the Atlantic under
an agreement with the International Civil Aviation Organization (ICAO). Langlo, A New
Look in Meteorology: The World Weather Watch, 16 ImPAcr or ScIancE ON SocmTY 65
(1966).
58 One of the most important of recent international governmental organizations relating
to the sea is the Intergovernmental Oceanographic Commission (IOC), established under
UNESCO auspices in 1961. The Soviet Union and the United States have submitted ambitious
proposals for cooperative international oceanographic programs, despite cautions given by
advanced countries such as France, West Germany and the Netherlands. The statutes provide that invitations be sent to the United Nations and United Nations agencies to attend
IOC meetings without voting rights, and in 1962 the Commission extended the same invitation to two other categories: nongovernmental organizations "active and interested in oceanic
endeavors, whose collaborations can help advance the work and objectives of the Commission;" and intergovernmental organizations of the same qualification "whose members are
States which are members of the United Nations or of the agencies of the United
Nations system." I.O.C., 1962 RORT
o "r=E BunrAu, Annex 9, Resolution 1. Since then it
has been common for over twenty international organizations to respond annually to the
invitation. The IOC, along with the Intergovernmental Maritime Consultative Organization
and UNESCO, have sponsored studies into the legal status of fixed oceanographic stations,
and other legal aspects such as safety. Id., Annex 8, Resolutiqn 18. The Scientific Committee
for Ocean Resources (SCOR) of the I.O.C. has been preparing "A General Scientific Framework for World Ocean Study" in consultation with the World Meteorological Organization
(WMO), the International Atomic Energy Agency and other interested bodies. 5 OCz2oz o00
138 (1965).
Prominent among international nongovernmental organizations stimulating cooperation
in oceanographic research is the International Council of Scientific Unions. The Council sponsored the International Geophysical Year of 1957-1958 and created the Scientific Committee
on Oceanic Research which in turn sponsored the International Indian Ocean Expedition.
59 It is significant that international cooperation in the scientific investigation of the
Antarctic has been continuing without pause since the terminaton of the International
Geophysical Year for which it was initiated despite the fact that no exploitable mineral
1967]
LAW AND SEA TECHNOLOGY
G. Storage and Disposal
The Antarctic Treaty, which applies to all areas south of 60' south
latitude, is primarily concerned with excluding military activities and
establishing a moratorium on claims to an unoccupied space which is
especially vulnerable to disputes over occupation. But article V prohibits the disposal of radioactive waste material. 0 Disposal of waste
materials in the sea generally has already created problems of contamination. It is likely that the existing general international agreement for
regulating pollution of the sea by oil6 will prove to be a helpful precedent in treating the problem of contamination of the sea by the disposal
of radioactive materials. It may be significant that the problems of
enforcing compliance with the oil pollution agreement have been mitigated by technological innovations introduced by the oil companies, but
credit should be given to the International Atomic Energy Agency for
its progress in persuading governments to adopt international safety
62
standards to combat radiation hazards.
Relevant to the future use of the sea for storage is the establishment
of an observation and inspection system under article VII of the Antarctic Treaty. The further requirement to give advance notice of the intention to bring certain kinds of installations, equipment and personnel into
the area is duplicated in the recent Treaty on the Peaceful Uses of Outer
Space. 3 An approach to the difficult problem of regulating military
marine concealment practices might be made through the international
has been found there except coal, and coal mining is not economically feasible in that region.
Fuchs, Antarctic: The InternationalLaboratory, Scnqcac jourAL, Nov. 1966, at 48.
60
Antarctic Treaty, supra note 53, art. 5. This specific prohibition should be read along
with the assertion in article 6 that the treaty does not affect the rights of states under
international law in high seas areas of the Antarctic region.
61 The International Convention for the Prevention of Pollution of the Sea by Oil, which
came into effect in 1954, was revised in 1962 under the auspices of the Intergovernmental
Maritime Consultative Organization (IMCO) in London. See generally IMCO,
PorLuTIoN
or nm SEA BY Om. (1964).
62At the United Nations Conference on the Law of the Sea, held at Geneva in 1958,
a Resolution was passed urging the International Atomic Energy Agency to "pursue what-
ever action is necessary to assist States in controlling the discharge or release of radioactive
materials in the sea, in promulgating standards and in drawing up internationally acceptable
regulations to prevent pollution of the sea by radioactive materials in amounts which would
adversely affect man and his marine resources." Since then the agency has been active in
preparing safety reports and recommendations for adoption by governments and organizations.
See, e.g., INT'L AToMc ENERGY AGENCY, METoDS OF SURVEYING AND MONITRNG MARINE
RADIOACTIVITY (Safety Series No. 11, 1965); INT'L ATOIC ENERGY AGENCY, REGULATIONS
FOR TE SAFE TRANSPORT OF RADIOACTIVE MATERIALS (Safety Series No. 6, 1964, rev. ed.
1965); INT'L ATOinc ENERGY AGENCY, RADIOACTIVE WASTE DIsPOSAL INTO THE SEA (Safety
Series No. 5, 1961).
3 Treaty on the Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies (1967), art. XII. Text
in 55 DEP 'T STATE BuLL. 953 (1966).
CALIFORNIA LAW REVIEW
[Vol. 55: 449
registration of storage caches. Agreement on international supervision
is likely to be difficult to achieve though proposals of this kind applied
to the ocean may not be opposed with the same degree of emotion as
when applied to territorial land. 4
H. Power
Tidal power systems are likely to remain the luxury of a few advanced technological powers. As such they will be regarded as extensions
of the technological base on land, subject perhaps to international standards of safety. 5 Power installations would in any event be close to the
shore. In the case of a project at Passamaquoddy Bay, between Maine
and New Brunswick, a bilateral treaty between Canada and the United
States could draw upon shared experiences in operating the St. Lawrence
Seaway and other joint waterways.
I. Recreation, Therapy and Residence
The legal problems of life in the sea may be consigned to future
generations in the hope that some of the masterful ingenuity spent in
marine technology can be reinvested in the wise technique of social
organization. Looking out dimly from 1967 it seems unlikely that manin-the-sea can escape the legal restraints of man-in-society.
III
FINAL APPRAISAL
Technological innovation can be expected to increase the demands
of states at the same time as new and bold solutions to various kinds
of problems become more feasible. The increasingly technological order
of life on this planet may further the trend toward uniformity of value
demands in the world community, leading to the adoption by governments of similar criteria for technical progress. At present the gap between technological powers and developing nations seems to be widening.
The initiative in sponsoring international cooperation to develop the sea
is being assumed mainly by four of the most advanced technological
powers: the United States, the Soviet Union, Britain and Japan. But no
system of social organization can remain untouched by the promise and
dangers of technology applied to the sea.
GIThe advent of general underwater navigation may seem to pose a threat to national
military concealment practices. But if hypertechnical logic prescribes straightline routes for
commercial voyages and if military concealment practices remain mobile and independent
of fixed installations in the sea, the main threat to national security may come from unscheduled recreational voyages.
65 Such power plants pose serious problems of disposing of radioactive wastes. See
discussion note 30, supra.
19671
LAW AND SEA TECHNOLOGY
So far as is known, no other planet has an ocean. Without the sea,
life as we know it today would not exist. Yet until our own time, the
sea has been an unrealized asset, a mysterious natural hazard dividing
nations. Man's instinct for contact gave birth to the ius communicatonis
and the freedom of the seas; his instinct for security and acquisition
stimulated national claims to coastal zones of unshared authority. Under
the impact of technology new and expanding uses of the sea can be
expected to produce corresponding changes in the pattern of authorities
on and under the surface. Some uses of the seas, regarded by the technological (nuclear) powers as nonstrategic in character, can be developed
best through increasing international cooperation in scientific investigation, administered by schemes of shared authority and responsibility.
The combined force of the logic of efficiency and the sense of equity
seems to ensure that developments in the use of the sea for communication, transport, and weather modification will remain subject to widely
based authority, in the tradition of the classical assumption of the freedom of the sea. Use of the sea for storage, disposal of radioactive materials and the generation of energy is not likely to become common
among sea users in the near future, and the hazards involved are likely
to remain amenable to regulation through the adoption of minimum
standards established by multilateral conventions.
The instinct for survival or dominance may produce new practices
of military concealment and subterfuge irreconcilable with any scheme
of inclusive authority; but strategic considerations belong to the hopefully emerging law of arms control and disarmament and are extrinsic
to the law of the sea. The logic of war technology and nuclear riskbearing seems likely to diminish the significance of coastal security zones
by concentrating on the direct regulation of military potential.
The most difficult problems will arise in the field of resource
authority. Here it is important to distinguish between the maximization
of marine science and technology and the objective of equitable sea use
control. The most rational use of the sea will surely have to be sacrificed
in some degree to the sense of equity, and the fairest system of social
organization will have to yield in part to the logic of efficiency. Whatever
the stated objectives of the emerging schemes of resource authority, we
should anticipate, at best, tolerably rational suboptimal practices. Even
to this end the codified international law of the sea is, in large part,
irrelevant.
In the field of resource authority the functional irrelevance of territorial limits is especially marked. The logic of science and technology
wages unremitting war on arbitrary manmade limits separating a zone
of exclusive and comprehensive state authority from the rest of the ocean.
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[Vol. 55: 449
The same hypertechnical logic seems likely to ensure continued functionalization of resource authority which would subject the territorial
fiction to increasing strain. At the same time equity requires that the
special interests of the coastal state be adequately protected under
schemes of functional authority. Some kinds of port entry and clearance
regulations of the coastal state have already been granted extraterritorial
effect in conventional law. 66
Despite the existing Convention on the Continental Shelf, technological innovation is currently sharpening the struggle over the allocation
of mineral rights on the continental slopes and the ocean floor.6 7 Ideally,
perhaps, these issues of mineral exploitation and conservation authority
beyond the 200 meters depth level would be susceptible to regional
agreements and organization.68 But it may be surmised that the pattern
of authority will be shaped rather by the logic of technology and investment operating within existing political limits.
The most complex problems in the law of the sea are those of allocation and management authority over fishery resources. The world
population will almost certainly be quadrupled within -the next two
generations. Under the impact of technology the sea can make a major
contribution to the supply of protein foods. Contemporary international
law has countenanced irrationality in the widespread extension of exclu66 See note 51 supra.
6
7Mero interprets article 1 of the Convention on the Continental Shelf as meaning
that the adjacent coastal nation "owns" the phosphorite nodules which are found on the
continental slopes to depths exceeding 10,000 feet, and that the coastal state is entitled to
extend the "legal" shelf beyond the "geological" shelf down the continental slope and out
over the deep ocean floor indefinitely as far as a mining dredge can operate. J. MFRo, Tn
MnmtAL REsouRcEs oF TEs SmA 289 (1965). It seems unlikely, as Mero admits, that this
was intended by the drafters of the Convention on the High Seas, and it would cause grave
problems in seas shared by several technological powers, such as the North Sea.
68 But, as Mero points out, the deep sea minor cannot be equated with the deep sea
fisherman who, at capture, acquires ownership of an object previously res nullits. "The
miner's capital investment is not only in the recovery system, but also in the deposit
itself ...
. The miner, thus, would very much like to have some law which grants him
the exclusive right to develop and mine a deposit which he has spent substantial amounts
of money in exploring." Id. at 291-92. A world oceanic authority can be projected for the
coordination of all existing schemes of functional authority, all operating under world
community principles and procedures, but it would not seem a suitable level for the settlement of resource allocation disputes which are primarily regional in character. In a regional
scheme of mining authority, the noncoastal mining state that wished to exploit resources
in deep waters close to a continental shelf would be free to negotiate some kind of compensation arrangement with the adjacent licensing state, instead of inducing a bead-on
collision between the Convention on the Continental Shelf and the Convention on the
High Seas.
But the former convention would scarcely apply to shallow water mining in remote
midoceanic areas which is now technologically possible. Nor would the latter convention
justify monopolistic exploitation in remote areas of the high seas, and cooperative arrangements under the auspices of a regional mining authority would not be feasible in such an area.
19671
LAW AND SEA TECHNOLOGY
sive fishing zones up to the twelve-mile limit measured from the baseline
of the territorial sea. Though special privileges are often accorded to
non-coastal states on the basis of treaty rights or "historic" practices, 9
these privileges themselves may have to yield to the ultimate priority
of need in the case of a coastal population "overwhelmingly dependent"
upon coastal fisheries.70 These claims to extended exclusive fishing limits
are based on the extremely dubious assumption that this kind of action
brings lasting benefits to the domestic fishing industry. Conservation
dangers are frequently put forward to justify the claims, but these problems are scientific and technological in character and raise the need for
international cooperation beyond the mere dissemination of data. In many
areas conservation programs within nationally prescribed limits are futile unless correlated with conservation practices outside those limits.
The classical assumption of the physical inexhaustibility of fish in
the sea, which was used to buttress the dogma of the freedom of the
seas,7 1 is less relevant today to the problems of fishery authority than
the variable factor of economic availability under expanding fishery technology. The present trend in international cooperation for the adoption
of regional conservation standards and policing procedures seems likely
to result in various management authorities on regional and subregional
levels. Within such authorities, allocation and conservation can be flexibly correlated on the basis of the actual commercial practices and objectives of all the users of the region.72
Technology may have more impact on the development of distant
water fishing than on coastal fishing. If the expanding capability of
advanced technological powers takes them into the waters of another
region, they should be entitled to participate in any existing regional
scheme of management authority and partake of both the benefits and
69 For the recent formulation of these privileges in the Northeast Atlantic region, for
DEVELOPMENTS ix THE LAW OF THE SEA
1958-1964 (British Institute of Intl and Comparative Law, Int'l Law Series No. 3, 1965).
example, see Johnson, European Fishery Limits, in
70
Formal acknowledgement of this special situation at Geneva in 1958 was relegated
to a Resolution appended to the Final Act of the Conference. D.M. JOHNSTON, supra note 2,
at 282-88. Article 11 of The 1964 European Fisheries Convention implements the principle
for the Northeast Atlantic, but it is stated to be "subject to the approval of the parties to
the Convention." European Fisheries Convention, opened for signature March 9, 1964, art. 11,
3 I T'L LEGAL MATEPAs Cu nNTr Doct-s~rrs 476 (Am. Soc'y of Intl Law 1964).
71D.M. JOHNSTON, supra note 2, at 321-26, 431-33.
72 The importance of the economic aspect of allocation and conservation problems
suggests a greater need for 'loose" economic solutions rather than "tight" legal restraints.
Improvements in the preservation and delivery of fish products in recent years have intro-
duced new commercial arrangements for sharing the profits available in supplying the
expanding export markets. Better returns on capital will often arise in the post-extractive
phase of the fishery trade, and increasing use is likely to be made of international joint
ventures. See, e.g., Mother Ship and Factory for Remote Fishing in the South Atlantic,
Fis m NG NEws INT'L, Jan. 1966, at 46.
CALIFORNIA LAW REVIEW
responsibilities involved. Highly intensive distant water fishing, even in
remote oceanic areas, may eventually have discernible effect upon coastal
stocks accelerating the trend toward widely based regional schemes of
fishery regulation. Like other schemes of functional authority, these
fishery schemes cannot be expected to operate with maximum efficiency
unless subordinated to universal principles and procedures designed to
coordinate all uses of the sea and provide for the settlement of disputes
in accordance with scientifically informed criteria.73 In the meantime,
it is clear that all existing arrangements for fishery allocation and management are transitional and will remain inadequate until the impact of
worldwide investment in advanced marine technology can be measured.
In the sea, as in the other unoccupied spaces, the logic of emerging
technology requires a fresh approach to the uses of law in providing
solutions and concepts of order. For almost forty years the old "status
zones" of the sea and the resulting "status law" have seemed much too
rigid to serve as a proper legal framework for new and expanding uses
of the sea. As various kinds of institutions develop throughout the world
to accommodate exclusive and inclusive interests in these uses, it becomes
increasingly more difficult to justify the notion of territoriality in the
sea. 7 4 If the territorial sea does in time "wither away," it can only mean
that the technological order of the sea has finally prevailed.
'73On the legal significance of scientific criteria for the settlement of fishery conservation
disputes, see D.M. JoiNsToN, supra note 2, at 460-62.
74
Whether one adopts a status (zonal) perspective or a functional (institutional) perspective in projecting the influence of marine technology on international law depends in
part on whether one stresses current national initiatives in technological investment and
innovation or current trends toward international cooperation in the application of
technology to shared or shareable resources. In a country with the resources and confidence
of the United States it is easy to overlook the fact that if spectacular technological advances
by superpowers are to be matched at all, it will be by international cooperative enterprises
in regions such as Western Europe. Further, in the United States the largest commercial
enterprises in marine technology are becoming less "national" as their activities expand
throughout the world. Accordingly, it seems likely that the maintenance of national zones
of authority would provide obstacles to the free exercise of hypertechnical logic. In the
emerging technological order of the sea, it seems that the only feasible alternative to multiple
national zones of authority--either differentiated by function or merging to form a greatly
enlarged territorial sea-is a variety of functional schemes of authority, embracing a combination of coordinated inclusive and exclusive competences and operating at regional and
subregional levels. Cf. Burke, Legal Aspects of Ocean Exploitation--Status and Outlook, in
ExpLorr=G THE OcEAN, supra note 14, at 1-23; Griffin, Development of Law for Ocean
Activities, in id. at 348. Pessimism about the prospects for development of criteria for the
allocation of fishery resources, for example, seems better justified if one assumes that the
international law of the sea will continue to develop predominantly through reciprocal
recognition of national zones. It seems more likely that the contest for the application of
a public order of the ocean will continue to be waged on two levels: "according to national
orientation and according to products or use orientation." Oswald, Toward a Political Theory
of the Ocean, in id. at 364.