IMPLICATIONS OF THE EMERGING
LAW OF THE SEA TO THE
U. S. NAVY

Joseph Lambert Wiggins

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Monterey, California

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IMPLICATIONS OF THE

EMERGING

LAW

OF THE SEA TO
U.S. NAVY

by

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March 197^

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Implications of the Emerging
Law of the Sea to the
U.S. Navy

by

Joseph Lambert Wiggins
Lieutenant, United States Navy
B.S., United States Naval Academy, 1966

Submitted in partial fulfillment of the
requirements for the degree of

MASTER OP SCIENCE IN OCEANOGRAPHY

from the

NAVAL POSTGRADUATE SCHOOL
March 197^

1h*

ABSTRACT

Seven major Issues In dispute at the United Nations
Conference on the Law of the Sea and affecting the U.S. Navy
are examined from the standpoints of Naval interests as well
as the Nation and the international community. The issues
are :

National security and peaceful use of the oceans,

The territorial sea,

International straits,

Marine resources,

Marine scientific research,

Marine pollution,

The international regime.

Solutions to the issues are argued and compared from the
perspectives of the international community as a whole, the
United States and the U.S. Navy. It is shown that the best
solutions for both the United States and its naval force
appear to be in the direction of greater international juris-
diction for the world's seas and, thus, the U.S. stands to
gain the most from an effective and widely accepted inter-
national ocean regime. The roles of the U.S. Navy and other
international navies as peacekeepers and marine managers
supporting a new international ocean order are also explored,

t \

TABLE OF CONTENTS

I.
II

III

INTRODUCTION

BACKGROUND

A. PRESENT INTERNATIONAL LAW OF THE SEA

6

9
9

B,

PRESENT U.S. POLICY ON THE LAW OF THE SEA 11

THE LAW OF THE SEA PROBLEM AS IT PERTAINS TO

THE US NAVY 17

A. THE ROLE OF THE US NAVY IN NATIONAL SECURITY — 17

B. DIVIDING THE PROBLEM 20

1. National Security and Peaceful Use

of the Oceans 21

2. The Territorial Sea 24

3. International Straits 26

4. Marine Scientific Research 29

5. Marine Resources 31

6. Marine Polluction 37

7. The International Ocean Regime ■ — ^0

C. THE INTERACTIONS OF THE ISSUES ^3

IV. THE SPECTRA OF PROBABLE SOLUTIONS TO THE ISSUES ^6

A. CONSTRUCTION OF THE SPECTRA 46

B. SPECTRUM 1: NATIONAL SECURITY AND PEACEFUL

USE OF THE OCEANS 47

C. SPECTRUM 2

D. SPECTRUM 3

E. SPECTRUM 4

F. SPECTRUM 5

G. SPECTRUM 6
H. SPECTRUM 7

THE TERRITORIAL SEA 59

INTERNATIONAL STRAITS 68

MARINE SCIENTIFIC RESEARCH 76

MARINE RESOURCES 82

MARINE POLLUTION 93

THE INTERNATIONAL REGIME 97

I \

V. THE PRESENT AND POTENTIAL DUAL ROLES OF THE

U.S. NAVY IN A FUTURE OCEAN REGIME 105

VI. CONCLUSIONS 119

A. THE INTERNATIONAL SOLUTION 119

B. INTERNATIONAL OCEAN SECURITY 122

C. THE NATIONAL SOLUTION OF THE UNITED STATES 123

D. AN OVERALL COMPARISON OF POSITIONS

ON THE SPECTRUM 127

BIBLIOGRAPHY 130

INITIAL DISTRIBUTION LIST ■ 136

FORM DD 1473 1/+1

LIST OF ILLUSTRATIONS

Figure 1. Major Participants in the Marine Sciences 14

Figure 2. World Straits Affected by a 12 Mile

Territorial Sea 28

Figure 3. Ocean Floor Resources and Per Cent of

World Total Seabed in each Region 33

Figure 4. Major Topographic Divisions of the

Continental Margins; Shelf, Slope and Rise 34

Figure 5. Worldwide Merchant Ship Distribution in 1969 - 57

Figure 6. America's Continental Shelf 57

Spectrum 1. National Security and Peaceful Use

of the Oceans 60

Figure 7. Global Effect of 200 Nautical Mile

Territorial Sea Claims 65

Spectrum 2. The Territorial Sea — 69

Figure 8. Major World Shipping Lanes 70

Spectrum 3. International Straits 75

Spectrum 4. Marine Scientific Research 81

Figure 9. World Subsea Petroleum Potential 84

Figure 10. Potential Resources off the Eastern Seaboard

of the United States 86

Figure 11. Annual Fishery Catch, Resources, and Areas

of Protein Deficiency, 1968 86

Figure 12. Phytoplankton Production 87

Spectrum 5. Marine Resources 92

Spectrum 6. Marine Pollution 98

Spectrum 7. The International Regime - — 104

Figure 13. The Conglomerate Spectra 128

. I. INTRODUCTION

The objectives of this thesis are to examine the complex
problems and policy choices facing the United States Navy as
a consequence of the emerging international Law of the Sea,
while also satisfying the requirements for a degree of Master
of Science in Oceanography.

Ocean problems are multifarious and their study necessar-
ily interdisciplinary . The social, legal or political aspects
of the regime of the sea cannot be separated from the physical
characteristics of the oceans and the resources they contain.
Experience and knowledge in a wide diversity of fields are
useful to any exploration into these problems.

The writer has served aboard submarines and surface ships
of the U.S. Navy and is a Naval aviator. He has studied for
two years a curriculum in oceanography, has taken additional
classes in international law and public policy and has con-
ducted a personal survey of Law of the Sea literature. The
Oceanographer of the Navy gave him the opportunity to attend
international conferences on the use of the world ocean.
As a result of that trip to Italy and Malta, the author had
the opportunity to explore relevant issues at the Departments
of State and Defense in Washington, D.C., at UNESCO in Paris
and at the United Nations in Geneva and New York. As a
result, the author is convinced of the increasing importance
of a naval officer being as familiar with the international

legal regime of the oceans as he is with the International
Rules of the Road.

It appears certain the the legal environment pertaining
to the sea will undergo great changes in this decade, re-
shaping the legal order of the seas from the permissive,
"laissez-faire" era of recerrt times to a more structured
and regulatory age. This foreseeable change demands that
the officer on the bridge or in the cockpit understand the
legal framework and political atmosphere influencing their
operations. A former Secretary of the Navy, W.B. Franke,
has stated the challenge thusly:

Officers of the Armed Forces, and especially
officers of the Navy, have long recognized
that in addition to being professionals in the
art of war they must be alert and responsive
to the law of nations. The expansion and im-
provement of all forms of rapid communications
plus the challenges to the . freedom of the seas
have made such knowledge increasingly important.
The formation of the United Nations and the
various collective defense organizations has
also served to make the Naval Officer's life
more international in character.

A knowledge of International Law and our
country's dedication to its growth should be
one of the ready tools of each and every
Naval Officer [13 p. x].

In this thesis it is argued that the Navy has a definite

role to play in formulating as well as implementing United

States policies regarding the Law of the Sea. It is urged

that both the advisory and operational roles be expanded.

The author intends to demonstrate that the ocean policy

issues critical to the Navy are frequently viewed too

narrowly. The author's concern is that the U.S. Navy remain

effective through the adaptation to emerging technologies
and public policies responsive to U.S. national interest
and a new International Law of the Sea. The Navy will be
better prepared for the future if the implications are
considered for any of the likely outcomes of the international
negotiations on the Law of the Sea.

The writer examines the range of possible solutions to
seven issues critical to the U.S. Navy. The seven issues
are: (1) National Security and peaceful use of the oceans,
(2) the territorial sea, (3) international straits,
(i|) marine scientific research, (5) marine resources,
(6) marine pollution, and (7) the international ocean
regime. Each will be discussed in relation to its effect
on the U.S. Navy in the foreseeable future.

Hopefully, then, this thesis will be of interest to
any seafarer or student of seapower.

II. BACKGROUND

A. PRESENT INTERNATIONAL LAW OF THE SEA

The world's oceans had been considered free to all men
and nations long before Hugo Grotius defended the concept
in his work, Mare Liberum, In 1609 [25 p. 3]. This freedom
has not Infrequently resulted in conflict when one use of
the sea interfered with another or a single use was over-
exploited. Such conflicts usually resulted in new regulation
of ocean use [29 p. 74],

After World War II the exploding technology and broadened
perceptions of national interests regarding the use of ocean
space soon stimulated the United Nations to undertake the
task of updating the then existing and inadequate principle
of freedom of the seas. Eight years of preparatory work and
the convening of an international Conference on the Law of
the Sea in 1958 resulted in four major conventions: (1) The
Convention on the Territorial Sea and the Contiguous Zone;
(2) The Convention on the High Seas: (3) The Convention
on Fishing and Conservation of the Living Resources of the
High Seas; and (4) The Convention of the Continental Shelf
[13 PP. 3^3 to 378]. The participating nations failed,
however, to agree then or at a follow-up Conference in i960
on the specific width of the territorial sea, though it
could not presumably exceed twelve nautical miles [13 p. 350
Article XXIII (2)].

I \

The accelerating technological revolution and increasing
growth of the international community required of the United
Nations a new effort at reforming the laws of the sea. The
United Nations General Assembly, beginning in 1967, adopted
a series of resolutions looking towards a more structured
order on the oceans. They included: Resolution 23^0(XXII)
of 1967 on the Peaceful Uses of the Seabed; Resolution 2467A
(XXII) of 1968 on the Establishment of a Standing Seabed
Committee; Resolution 2566 (XXIV) of 1969 on Promoting Effec-
tive Measures for the Prevention and Control of Marine
Pollution; Resolution 2580(XXIV) of 1969 on Coordination
of Maritime Activities; Resolution 27i(9(XXV) of 1970 on
a Declaration of Principles Governing the Seabed and the
Ocean Floor and the Subsoil Thereof Beyond the Limits of
National Jurisdiction; and Resolution 2750(XXV) of 1970 on
the Peaceful Uses of the Seabed and Convening of a Conference
on the Law of the Sea [75 pp. ^99 to 513].

The Antarctic Treaty of 1959 [18 p. 182] and the Multi-
lateral Treaty of 1967 on Principles Governing the Activities
of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies [13 p. ^95] provided
analogies for man's use of the world's oceans. Thus, In
1971 the international community concluded the Treaty
Prohibiting the Emplacement of Nuclear and Other Weapons
of Mass Destruction on the Seabed and the Ocean Floor and
in the Subsoil Thereof [13 p. 503]. This treaty, in effect,
denuclearized the ocean floor beyond a twelve mile coastal

10 i \

seabed zone [59 p. 264]. In addition to these declarations
and treaties, there has been a myriad of international
machinery established to coordinate the orderly use of the
seas [75 p. 487].

From the past twenty eight years of evolution in the Law
of the Sea, the international concensus of principle is
clear: the oceans in the future should be for peaceful
purposes and be considered as the "common heritage of man-
kind" [9 P. 2, 25 p. 122]. The application of these prin-
ciples, still obscure, remains the task of the forthcoming
Law of the Sea Conference .

B. PRESENT U.S. POLICY ON THE LAW OF THE SEA

The United States signed and ratified all four U.N.
Conventions of 1958. It is a party to the Antarctic Treaty,
the Outer Space Treaty and the Seabed Disarmament Treaty.
It supports the above mentioned UN Resolutions and partici-
pates in all international organizations active in the marine
sciences. Current national policies pursued by the United
States for a new International Law of the Sea were set forth
on 23 May 1970 in a statement issued by President Nixon:

Major elements of the President's policy are a
proposal for a new treaty to insure the rational
and equitable use of the resources of the seabeds,
and international agreement on 12 nautical miles
as the maximum extent of the territorial sea, on
freedom of transit through and over international
straits, and on preferential rights for coastal
states regarding conservation and use of living
resources of the high seas adjacent to their
coasts [59 P. 304] .

H , v

On August 3, 1970, the United States formally presented a

Draft UN Convention on the International Seabeds Area to

the United Nations Seabed Committee In Geneva. The draft

treaty Included an Innovative concept.

It provides a 200 meter Isobath seaward limit
for the area of the seabeds under national
jurisdiction. It places potentially vast
seabeds resources beyond that limit under
continuing international regulation. At the
same time, it specifically assures that the
revenues from the exploitation of such
resources will be equitably divided among
the community of nations with special emphasis
on economic aid to the developing countries
[58 p. 77].

Ambassador John R. Stevenson, head of the U.S. delegation
to the UN Seabed Committee, elaborated upon U.S. policies
in 1972. He stated that the U.S. supports the maximum free-
dom of scientific research. Further, the U.S. encourages
the establishment of an international seabed organization
with broad regulatory and emergency powers to prevent pollu-
tion while overseeing the exploitation of the international
seabed through its licensing, inspection, regulatory and
revenue collecting authority 166^. These policies were
reiterated by the President in 1973 in a report to Congress.
The President noted the application of the principle of
11 . . . compulsory third-party settlement of disputes to help
reduce the potential for conflict" [57 p. 218]. It must be
emphasized that these Executive policies cannot become law
except through a treaty ratified by the President with the
consent of the Senate. Traditionally, Congress has shown
more concern for commercial interests than international,

12

1 \

economic and political considerations with respect to marine
resources [25 p. 70].

These and future American policies ought to be based
on the goal of utilizing the ocean for the best Interests
of the nation. Since these interests are numerous, often
overlapping and sometimes conflicting, the first requirement
is to identify the nation's long term objectives. One set
of national objectives has been forwarded by a member of
the President's Science Advisory Committee, Gordon MacDonald:

1. To use the sea to stabilize world order by providing
for food and other natural resources, by preserving
the seas as a source of recreation, and by using
the seas to mount cooperative ventures with truly
international objectives;

2. To promote the economic interest of the United States
by providing the means and safeguards to profitable
investments ;

3. To use the seas in ways designed to maintain a
nuclear deterrent;

4. To provide the capability of effectively deterring
any Sino-Soviet attempts at enlarging their spheres
of influence by subversion or wars of liberation
[29 p. 193].

It might be argued that the latter two objectives may be
less long term than the first two. However, this sort of
perception is needed by those who formulate the maritime
policies of the United States.

The policy formulators have included a great number of
interest groups, both public (Figure 1) [20 pp. 228 and 2^8]
and private. Foremost among these have been the Federal
Departments of State, Defense and Interior and non-govern-
mental associations in the oil, fishing and mineral industries

13

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14

A governmental inter-agency Law of the Sea task force was
able to produce a comprehensive set of recommendations that
helped establish the United States Law of the Sea policies
in the early 1970' s. They were forwarded to the National
Security Council for review, modification and approval by
the President. A similar conflict and compromise among
competing interests are expected to take place with varying
decisions in every other sovereign state in the world.

The Department of Defense appears to have the most
straight forward and singular motivation for its recommen-
dations: the nation's security. Such a compelling cause
has usually given the Department of Defense the prominent,
if not always prevailing, voice in determining national
Law of the Sea policies.

Since World War II national security has been recognized
as being largely dependent upon world security or, at least,
a number of regional security arrangements. The Department
of Defense has been instrumental in articulating a regional
approach to national security through NATO, SEATO, OAS , ANZUS
and bilateral mutual defense pacts involving almost fifty
countries [29 p. 17*1, 75 p. 12]. The co-participation of
American and foreign armed forces in these alliances and
international organizations has resulted in the United States'
Department of Defense acquiring as transnational an approach
to foreign policy as any other agency in the U.S. government.
The Department of Defense, for example, is often in conflict

15

with the more national industry oriented Department of
Interior on Law of the Sea issues.

Everyone is affected In some way by the laws pertaining
to the use of the oceans and the governance of offshore
resources. The way in which the U.S. Armed Forces conduct
operations in peace or war is significantly influenced by
the prevailing Law of the Sea. Obviously, the Navy is the
service most affected. It has consequently played the
leading role in formulating the Department of Defense's
marine and ocean policies. Even in the negotiations, a
naval officer is the senior military representative on the
U.S. delegation to the United Nations Seabed Committee [60].

The next two sections examine the Law of the Sea problem
as it relates specifically to the United States Navy.

16

III. THE LAW OF THE SEA PROBLEM AS
IT PERTAINS TO THE US NAVY

A. THE ROLE OF THE US NAVY IN NATIONAL SECURITY

In order to appreciate the stake of the U.S. Navy in
the emerging Law of the Sea, an understanding of its various
roles is necessary. The Navy's most significant mission
today is the maintenance of a seabased nuclear deterrent
and retaliatory force, utilizing submarines and aircraft
carriers. As approximate parity is reached between the
strategic (nuclear) forces of the United States and Soviet
Union, each nation will become more dependent upon its
non-nuclear forces [57 p. 180]. Since nuclear deterrents
have neither prevented nor suppressed limited war [29 p. 173] ,
another role has regained importance for the Navy, that
of providing a limited force deterrent and, when called
upon, a counter to others' use of conventional forces.

Our present new era has been described as one "beyond
peace and war" [7]. Limited, manageable force requires the
ability to contribute to the achievement of national goals
through the exercise of the least amount of necessary military
force integrated with preferable political and other non-
military measures. This approach implies a Navy with flexi-
ble and varied capabilities. Such a selective, controllable
force suggests naval applications through small task forces
off a coast, blockade, landing of an expeditionary force,
off-shore bases, logistic support of a land battle or

17 , >

general naval warfare between maritime powers [2 p. 81].
Herein lies the justification for the Navy's need for varied
conventional capabilities: amphibious, minesweeping, logis-
tic, anti-submarine warfare and sea control. The performance
of these tasks require myriad craft, including the aircraft
carrier [64 p. 1^9].

A third role of the Navy is diplomatic, a political-
military capability to show the flag, demonstrate potential
force or participate in international peacekeeping. United
States naval bases and vessels provide tangible evidence
of American power. They observe and, when necessary, enforce
international rights in ocean waters. They strengthen the
morale of allies and friends, while projecting America's
capability to potential enemies [29 p. 126].

A fourth role is that of intelligence gathering and
covert operations [29 p. 189].

A fifth role of the U.S. Navy is that of contributing
to America's leadership in the marine sciences, particularly
concerning the deep ocean [20 p. 7].

A sixth role, untried as yet, will be that of joining
with others in the management and policing of the regulations
of civil authorities. These last two roles will be discussed
in detail in Section V.

The Navy's potential to fulfill these six roles has been
supported to the maximum degree by the Commission on Marine
Science, Engineering and Resources. "The Commission believes
strongly that the nation's stake in the uses of the sea

18

requires a U.S. Navy capable of carrying out its national

defense missions anywhere in the oceans, at any desired

depth, at any time" [20 p. 3].

It is conceivable that the naval and/or maritime powers

could try to collectively dictate a future order for the

oceans agreeable to them alone. It is unlikely that they

would be very successful because gunboat diplomacy has never

for long obtained the desired results. Moreover, today's

attitudes of mind, distribution of power and concepts of

law virtually preclude such a course. Nevertheless, power,

whether economic, political or military, is still a persuasive

force in world affairs. Edmund A. Gullion has said:

Until a new international order emerges, and
perhaps for sometime after, the rule of the
seas will in the last analysis depend upon an
international balance of power projected at
sea by the world's warships, most of which are
distributed among only two of the great
maritime countries, the United States and
the USSR [29 p. 11].

Five naval powers, the Americans, Russians, British,
French and, possibly, the Chinese, operate virtually all
the sea forces. Forty major trading nations [1 p. 17] pos-
sess the overwhelming majority of the world's ocean power.
Yet, many observers believe that: "... in our times ...
power has undergone a deep change ... in international
politics" [16 p. 2], Nuclear weapons cannot be sensibly
employed as a counter to maritime influence, whether destroy-
ers or fishing boats. Modern technology holds important
implications for the narrowing of differences in power

19

between nations. Today, a patrol boat with missiles has
become a credible threat to a guided missile cruiser. [2 p. 78].
Many forms of power have been dispersed and redistributed
among nations since World War II. Nevertheless, Mahan * s
classic concepts of sea force are still valid. Moreover,
seapower today requires a merchant marine, oceanography,
marine research and ocean engineering [69 p. 50].

The United States has begun negotiations on a new Law
of the Sea with over a hundred other sovereign states because
none can afford to ignore the need for avoiding potential
conflict and all may gain by establishing a global law
governing the uses and abuses of the world ocean. Such
objectives are in the best interest of all countries. The
economic wealth and political power of the United States
depend upon the assured use and non-abuse of ocean space.

The U.S. Navy is concerned with the Law of the Sea for
two reasons. First, the Navy must protect the commercial,
economic, scientific and political rights of the United
States and its citizens under international law. Secondly,
the Navy is aware that commercial, economic, scientific or
political interest in the ocean may conflict with military
usage. Given the power and diverse roles of the U.S. Navy,
it is readily apparent that the United States has an enormous
stake in any revamping of the Law of the Sea.

B. DIVIDING THE PROBLEM

The United States Navy may be affected by every issue
arising from the Law of the Sea. Some issues, though, are

20

of more obvious or even critical concern to the Navy than
others. This author has chosen seven major issues to discuss
in this thesis that are, in his opinion, of greatest concern
to the U.S. Navy. Selected from several sources [1 p. 17,
4 p. 2, 42 p. 23, 45 p. 322], these issues constitute for
Law of the Sea experts a universal agenda and, therefore,
convenient pigeonholes for purposes of their sorting and
examination. However, this set of divisions is, in fact,
artificial in the sense that all seven are interlocked. As
with the interdependence of the seabed, the water column
and the atmosphere, changes respecting any one issue affect
all the others. Similarly, the investigation of any one
issue tends to embrace the entire set of issues.

A brief definition and description of each issue is
necessary before turning to a systematic examination of
the major possible solutions to each issue.

1 . National Security and Peaceful Use of the Oceans
This issue would seem to be the most relevant and
challenging to the future of the U.S. Navy. The recent
history of international relations might lead one to specu-
late about an eventual demilitarization of the entire ocean
space. The Aaland Island Settlement and Spitsbergen Treaty
of 1920 demilitarizing these strategic islands and the
Antarctica Treaty of 1959 banning the latter 's military use
are both analogous to the oceans. The Outer Space Treaty
of 1967 reserves all orbiting objects and the universe
beyond the earth's atmosphere exclusively for peaceful

21

purposes [29 p. 85]. The Nuclear Test Ban Treaty of 1963,
the Nuclear Non-Proliferation Treaty of 1970, the Latin
America Nuclear Free Zone established in 1967 [59 p. 59^3
and the Treaty banning Weapons of Mass Destruction from
the Deep Ocean Floor of 1970 are other steps in this same
direction.

None of these treaties invalidate the right or
necessity of a nation maintaining an armed force. Actually,
a majority of national governments operate on the conviction
that: "Military security is the most dominating and pervasive
factor influencing nations' attitudes to management of the
oceans" [^(2 p. 22]. If this is the case, the issue of peace-
ful use and national security of the oceans will prove to
be the major issue for the Law of the Sea. What is involved
is finding acceptable laws that diminish the likelihood of
disputes or conflict and that are credible through the poten-
tiality of their effective enforcement by various means,
including military force. Peace and security have never
proven to be incompatible with the existence of military
forces but, perhaps, quite the contrary.

The United Nations Charter sets some definite rules
governing the lawful use of military force. While Article
2 enjoins states to "... refrain from the ... use of force,"
it makes a distinction between unlawful territorial inter-
vention and lawful enforcement. Chapter VII of the Charter
stipulates circumstances governing the legitimate use of
force. Article ^2 gives the Security Council the authority

22

to take such action by air, sea or land forces as may be
necessary for the maintenance or restoration of international
peace and security. Article ^3 envisions member nations
making available certain of their armed forces to the Secur-
ity Council pursuant to special agreements. Article 51
maintains the right of self defense of individual nations
or groups of nations. Chapter VIII makes legitimate any
regional collective defense arrangements among nations.

Prom the UN Charter and other treaties, "peaceful"
has the connotation of non-aggressive [18 p. 85]. The
Charter, specifically, makes the basic distinction between
"... impermissible coercion ('aggression', 'threats to the
peace', 'intervention') and permissible coercion ('self
defense', 'police action', 'reprisals', 'sanction')" [52
p. 3^0], Since the difference is subjectively determined
by member states in the UN Security Council or General
Assembly or asserted unilaterally or collectively when
resisting an armed attack, it has been suggested that the
terminology "... peaceful versus aggressive ..." be discarded
in favor of "... permissible versus prohibited activities"
[2 p. 99]. Logically, then, "peaceful" equates to "permissi-
ble" and "aggressive" equates to "prohibited" activities,
which is common place in metropolitan law. By these criteria
international law would attempt to see through subjective
adjectives and apply itself objectively to activities. Such
criteria reach beyond any narrow concept of "security" and
apply to all seven major issues being discussed in this

23

paper. Broadly, the Issue of peaceful uses and national
security of the ocean Is one of balancing the needs of
nations in order that they may protect themselves politically,
economically and militarily, while the world oceans are
preserved as a "peaceful" domain and common heritage of
mankind.

2. The Territorial Sea ^

The territorial sea is defined by the 1958 Convention
on the Territorial Sea as an extension of a nation's sover-
eignty "... to a belt of sea adjacent to its coast ... to
the air space over the territorial sea as well as to its
bed and subsoil" [20 p. 49, 13 pp. 3^3 to 3^). The issue
of territorial seas, however, might best be restated as
the delimitation between national and international
jurisdiction over ocean space.

This leads to the discussion of the high seas. The
1958 Convention on the High Seas defines the high seas as
"... all parts of the sea that are not included in the
territorial seas" [13 p. 57]. The treaty further states that
the high seas are "... open to all nations ..." and cannot
be subjected to the sovereignty of any nation [20 p. 50].
The freedom of the high seas concedes to subjects of inter-
national law rights respecting overflight, fishing, laying
of cables and pipelines and other rights recognized under
established principles of international law [4 p. 13]. Many
new deepsea activities are not explicitly included in the
treaty. The Convention recognized the equal right of all

2k

nations to use the high seas and to jurisdiction over their
own ships, but requires that no state interfere with the
lawful use of the high seas by another nation [31 p. 27].
Conflicting uses of the high seas are to some degree governed
by regulations such as the International Rules of the Road.
The 1958 Convention on the Continental Shelf requires that
installations on the shelf not cause "... unjustifiable
interference with navigation, fishing or conservation".
Nevertheless, permanent installations and uses generally
have precedent over transitory installations and uses [15
p. *J3]. The use of the high seas thus becomes one of
"... reciprocal restraints ..." [31 p. 27] between all
nations and marine users .

The territorial sea, then, is already well defined
by international law except for a precise and universally
accepted breadth. Increased and diversified uses of the
ocean are straining the traditional freedom of the sea and
stimulating expansionist claims on behalf of the territorial
sea. One of the most significant freedoms to the U.S. Navy
is that of innocent passage. Section III of the Territorial
Sea Convention allows the navigation of any nation's ships
in the territorial sea of another as long as that passage
is "... not prejudicial to the peace, good order or security
of the coastal state" [13 p. 3^7]. Submarines are required
to remain on the surface and display their national ensign.
But the right of innocent passage does not extend to flying
aircraft [59 p. 306]. Although Section III does not

25

specifically mention the applicability of innocent passage
to warships, the general rule does not deny such right [29
p. 76]. Many coastal states, however, have put several
burdens on naval mobility by requiring advance notice of
the passage of naval vessels through their territorial sea
or denying passage altogether.

The solution of this issue is of high consequence
to all states, but those with coasts and/or ships have
special interests. Coastal states are concerned with the
exploitation of natural resources off their coasts and the
degree of security afforded by the territorial sea. Shipping
nations seek assured passage for their ships in peace or
war on, over or in the maximum expanse of ocean space.
The U.S. Navy, in particular, wants such freedom of movement
for any American or allied warship or related craft, including
those that are nuclear powered and/or nuclear armed. And,
by this achievement, the allies would automatically provide
this freedom to non-allied nations. Obviously, coastal
states that are also naval and/or maritime powers, such as
the U.S., find themselves with a conflict of interests.
3. International Straits

International straits through waters either presently
or potentially declared as territorial are defined by the
1958 Convention on the Territorial Sea in Article XVI [59].
They are: "... straits which are used for international
navigation between one part of the high seas and another
part of the high seas or the territorial sea of a foreign

26

State" [13 P. 348]. At least 116 of these Internationally
used choke points have been Identified on the oceans main
shipping lanes (Figure 2) [72 Table III], with about 16
considered as major straits. [44 p. 772]. Man made canals
and acknowledged internal waters constitute additional
problems which are dealt with in other specific international
agreements .

All of Articles XIV through XVI of the Territorial
Sea Convention are applicable to passage through inter-
national straits. A critical principle applicable to the
international strait is that "... there shall be no suspen-
sion of innocent passage" [44 p. 770]. The International
Court of Justice in the Corfu Channel case of 1949 ruled
that in time of peace a warship can transit an international
strait as long as its transit is innocent [44 p. 769].

Most international straits are so narrow that any
international agreement to extend the territorial sea to
a maximum breadth of twelve miles would place at least all
of the 116 straits mentioned above in territorial waters
[2 p. 26]. By a subjective interpretation of the innocence
of passage, one or more states bordering a strategic strait
could attempt to arbitrarily deny passage to the vessel of
another nation. The failure to provide for an unfettered
right of passage through straits would, therefore, be a
potential source of conflict and threaten international
trade and security. A new concept, that of free transit is
being advanced as a preferable alternative to innocent

27

28

passage through international straits [2 p. 26]. Free tran-
sit would treat International straits as if, for purposes
of navigation, they were high seas but reserve to the adjacent
coastal states their territorial rights with regard to
pollution, resources, etc.

Until the present, straits were termed international
more as a result of historical usage than of any established
criterion. On November 16, 1971, Indonesia and Malaysia
declared the Straits of Malacca between them no longer an
international strait [4 p. 18], International law does not
support such contention, but it may now be necessary to des-
ignate by treaty all presently used international straits
and provide a means of establishing In the future additional
straits as international when such were warranted by changes
in world commerce routes or territorial sea breadth.
4 . Marine Scientific Research

This deceptively singular issue has great signifi-
cance when seen as the pace setter and catalyst for develop-
ments concerning all other issues and particularly the next
two issues: resources and pollution. Marine research covers
any investigation of the naturally occurring phenomena in
the marine environment. At the present stage of technology
investigators utilize a variety of platforms (ships, sub-
marines, aircraft, buoys, satellites, underwater installa-
tion, etc.) and a variety of techniques (visual, in situ
measurement, dredging, coring, seismic, electronic, photo-
graphic, chemical, acoustical, laser, computer, etc.). The

29

issue here is to what extent can the traditional freedom
of marine research be preserved and make use of platforms,
techniques, data and geographical areas. In the coastal
zone, where the most promising research beckons, the scientist
is finding increasing difficulty working because of ever
more extensive claims for national jurisdiction over the
shelf and sea above. The 1958 Convention on the Continental
Shelf at Article 5 makes clear that the coastal state or
other users of coastal waters shall not interfere with
"... fundamental oceanographic ..." or "... purely scientific
research into the physical or biological characteristics
of the continental shelf" [29 p. 8]. Even though the consent
of the coastal state is to be obtained for research, this
consent "... shall not normally ..." be withheld [29 p. 8].
No mention is made of a coastal state being justified in
withholding this consent for political, economic, pollution
or defense reasons.

In order to maintain a strong and competitive sea
force, the U.S. Navy needs continued access to study the
ocean environment, especially the shallow or near shore areas
where economic, political and tactical activities are concen-
trated. Several dilemmas appear. Where does scientific
research stop and intelligence begin? How can it be deter-
mined if scientific data, harmless in the past, could be
used against a state in the future? Where does national
scientific research stop and international scientific research
begin? What kinds of marine platforms constitute legitimate
research platforms?

30

The U.S. Navy can use any information about the
marine environment to add to its capabilities to operate
in the environment. "There is nothing in the science and
technology of oceanography which does not effect the Navy
in some way" [32 p. 24], To speak of scientific research
of the ocean as solely altruistic is clearly an exaggeration.
The international community must accept the fact that all
marine equipment, resources, data and expertise have a poten-
tial dual role. That is, they can be used to serve general
humanitarian or particular group interests or as force
against any nation. The research issue then is not what
scientific research will be allowed or by whom, but where
marine investigation may take place and under whose authority.
5 . Marine Resources

In the past, human demands on marine resources were
selective and localized. Man concentrated on a few specific
species of marine life and a few minerals which they ex-
tracted relatively near the shore. As population and tech-
nology has spread and grown about the world, demand has
increased and the consumption of resources accelerated.
Unfortunately international law, national policies and
academic discussion respecting marine resources define them
very narrowly. The scope of present and future marine uses
widens considerably when one adds tourism, aquaculture,
trace mineral mining, pharmaceuticals, nodule precipitation,
energy extraction, etc. These uses in turn widen considerably
the number of naturally oc curing resources in the oceans

31

that can be utilized by man. Wave action, heat capacity,
density layers and deuterium of the ocean's water, for exam-
ple, may someday be worth a great deal in terms of marine
transport and energy source. Thus, marine resources ought
to be defined as embracing all living, non-living, renewable
and non-renewable resources extractable from the seas, either
now or in the future. A meaningful discussion of the marine
resources issue requires that all foreseeable uses and quan-
tities of value in the ocean be considered with the clear
recognition that on our finite planet all resources are
limited.

For the remainder of this century, at least, the
greater part of marine resources will be extracted from the
continental shelves (Figure 3) . The 1958 Convention on the
Continental Shelf has given coastal states exclusive juris-
diction over the adjacent seabed and attached living and
non-living resources to a depth of 200 meters or greater,
where exploitable. It does not include the water or air
column above the seabed [13 p. 375]. This rather short
treaty has divided a fantastic amount of the ocean's total
resources. Ninety-six states out of 151 (as of February, 1974)
total are coastal nations with an extensive area of adjacent
shelf while only 31 countries are landlocked (the other 2k
states are shelf locked, that is their shelf is limited by
the shelf claim of another state) [2 p. 15]. These contin-
ental shelves to a depth of 200 meters constitute 1.6% of
the world's total seabed (Figures H and 6) [1 p. 3]. The

32

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34

entire shelf regions, including the continental slope,
amount to 15% of the 140 million square miles of seabed
[25 p. 11]. Aside from fishing, the most immediate utiliza-
tion of the continental shelf will be for oil and gas extrac-
tion [56 p. 74, 84]. Secondarily, it will continue to be a
source of sand, gravel and shells as well as a dumping ground
[1 p. 4]. In the future, this shallow seabed will be used
to a much greater extent for transportation, navigational
aids, power plants and living installations.

Much of the controversy over the extent of national
jurisdiction over the shelf's resources arises from the
distinction between the legal and physical definitions of
the shelf [1 p. 2], This is one example of the problems
encountered when the marine scientists' view of the Law
of the Sea and that of the international lawyers' are not
the same [32 p. 26], International debate is now centering
on the establishment of a marginal ocean zone extending
beyond the territorial sea to give the coastal state some
degree of control over the water column beyond its sovereign
domain. This zone has been named and interpreted in a
variety of ways including: the contiguous zone, the patri-
monial sea, trusteeship zone, fishing zone, and, most
recently, exclusive economic zone [48].

In addition, many technologically advanced nations
are endeavoring to exploit the resources of the high seas
and deep ocean seabeds. Traditionally, the Law of the Sea
has conceded to any nation the right to exploit whatever

35

resources It finds in the high seas or deep ocean seabed

and to control such activities under its flag. One historic

precedent for this principle may be found in the United

States statutes, The Guano Islands Act of 1856 which states:

Whenever any citizen of the United States
discovers a deposit of guano on any island,
rock, or key, not within the lawful jurisdic-
tion of any other government, and takes
peaceful possession thereof, and occupies
the same, such island, rock, or key may, at
the discretion of the President, be considered
as appertaining to the United States [15 p. 42]

For the United States Navy, the marine resources
issue presents various concerns. A far ranging and tech-
nologically advanced naval force needs raw materials. Of
the 72 natural resources the United States government has
identified as strategic, only 12 are found within the nation's
boundaries [32 p. 25]. A fossil fuel powered Navy or even
a nuclear powered one must still compete, through the govern-
ment, for marine resources in both the national and inter-
national markets. In addition,' the expansionist claims of
coastal states for wider jurisdiction over marine resources
and the erection of installations for their exploitation may
hinder or exclude naval operations. Not least, the greater
activity and investment of the United States and its nationals
in marine resource exploration and exploitation will neces-
sarily involve the Navy in providing increased protection
and related capabilities.

The marine resource issue of who gets what, when
and how will become aggravated as the "revolution of rising
expectations" within each nation increases both real and

36

perceived demands. The great hope that the oceans will,
somehow, provide for terrestrial shortages has only made the
equitable and long term distribution of ocean resources more
difficult.

6. Marine Pollution

Pollution is a highly emotional issue. One result
is national regulations being hastily adopted which, in
fact, have proved ecologically detrimental or impossible to
enforce. Such experience may be profitably noted and
utilized at the international level. The pollution issue
is certainly one where scientific research and advice is
absolutely mandatory if society is to conserve its environ-
ment and, also, avoid the passage of useless or harmful
laws .

According to the Intergovernmental Oceanographic
Commission of UNESCO, marine pollution is:

The introduction by man, directly or indirectly,
of substances into the marine environment (including)
estuaries) resulting in such deleterious effects
as harm to living resources, hazards to human
health, hindrance to marine activities (including
fishing) , impairing the quality for use of seawater
and reduction of amenities [^3 P- 1^6]

These substances appear in a variety of forms: chemicals,

solid wastes, petroleum, dredging and fill material,

microorganisms, radioactive matter, heat discharge and

atmospheric fallout. Marine pollution, therefore, originates

from a variety of sources and is present at a variety of

levels. It Is certain, however, that the great bulk of this

pollution is a result of the activities of the few

37

industrialized states and enters the oceans along these
states' coastal zones [77]. It is estimated that 90$? of
the oceans' total pollution got there via river runoff and
atmospheric fallout [54 p. 1], with most of the remaining
105? attributable to oil. Since 6055 of the annual world's
oil production is transported by sea, a sizable quantity,
over 1000 million metric tons of which is annually lost
directly Into the sea [56 p. 21]. Most of this oil comes
from the washing of storage tanks of ships in port [54 p. 4],

Virtually all marine pollution originates from
territory, including coastal waters, traditionally beyond
the jurisdiction of international law. Yet, most interna-
tional attempts at controlling marine pollution have been
directed at the dumping of pollutants, especially oil, by
ships on the high seas. The Convention on the Pollution of
the Seas by Oil of 1954 was one of the earliest. The 1958
Convention on the High Seas requires every signatory state
to establish regulations to prevent pollution by oil
discharge from ships and pipelines, pollution resulting from
seabed resource exploitation and pollution of the seas or
airspace above from the dumping of radioactive waste [13 p.
364]. The 1958 Convention on the Territorial Sea only
recognizes the authority of the coastal state out to the end
of a twelve mile contiguous zone to "...prevent infringement
of its ... sanitary regulations within its .. .territorial
sea." [13 P. 350] The International Convention Relating to
Intervention on the High Seas in 'Cases of Oil Pollution

38

Casualties of 1970 does not apply to warships. More
recently the United States enacted the Marine Protection,
Research, and Sanctuaries Act of 1972 that prohibits the
dumping of any substance into the nation's territorial sea
or contiguous zone without a permit [5*1 p. 27]. The Act
prohibits dumping of high level radioactive wastes and
applies to all vessels, including those of the Navy and
government. The Coast Guard is given the responsibility
for the surveillance of marine dumping activities [5*1 P- 28].
In the same year most of the world's large industrial and
maritime states signed the Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter.
This treaty does not apply to vessels and aircraft entitled
to sovereign immunity and, thus, all navies are exempt from
its provisions. Neither does it affect scientific or
military installations or devices in the water or seabed

[5*1 P. 31].

Even though the United States is a party to all the
international conventions mentioned above, the U.S. Navy
is apparently unhindered by them, since the past trend of
international law has been to exclude warships from such
pollution regulations. In actuality, naval vessels do
contribute only a small amount to the world's ocean pollution
[5*1 P. 31]. Still, the U.S. Navy is a victim of marine
pollution as are all ocean users. Ships, aircraft, equipment
and men can all be degraded in performance by harmful
substances in the marine environment. As pollution

39

regulations become more numerous and extensive, the Navy
will no doubt be called upon to enforce them where other
guardians cannot. It will be hard to justify stringent
regulation when the government's marine activities and vessels
do not comply as well. Most naval bases have undertaken,
with local communities, to clean up their shared estuaries
and shorelines in the last few years. Most notable is the
project at Pearl Harbor. The problem of accurate pollution
measurement is most difficult and, to the present, has been
almost totally ignored. Naval research facilities are
aiding in the development of proper equipment to overcome
this problem while naval platforms can expect to be used in
the actual monitoring,

7 . The International Ocean Regime

Beyond the territorial seas, contiguous zones,
continental shelves and economic zones lies a vast ocean
space not under national jurisdiction. This ocean space
has historically been subject to little law or regulation.
Individual states sometimes enforced through their courts
the international rules of the road and settled admirality
disputes. International agencies more recently began to
prescribe new standards of safety, navigation, resource
extraction and conservation. But on the whole, the unwritten
laws among seafarers made the seas a model of common usage
and non-proprietorship. Now this loose order for the ocean
is proving inadequate in the face of new and increased
marine activities. Therefore, in order to avoid chaos the

40

high seas are destined either to be managed by the interna-
tional community or divided among the coastal states.

Even though the exact bounds of the high seas are
still to be determined, its traditionally laissez-faire
legal environment will have to become more structured as
competing and conflicting demands are put upon it. The
United Nations, in General Assembly Resolution 27^9(XXV) of
1970 [13 p. 506], has recognized that an encompassing regime
to govern this international property is necessary. This
regime should be considered to include all the treaties,
organizations, representations, procedures and regulations
necessary to the governance of ocean space.

The issue of an international regime involves the
determination of the power that the regime will need and
exercise on behalf of the world community versus the power
that the coastal states will claim and reserve for their
partial or exclusive jurisdiction. The international
community has, to some extent ,' already polarized on the
issue. About twenty of the less developed states on the
United Nations Seabed Committee want a marine regime with
extensive authority, including the power itself to engage
in resource exploitation and .to police, inspect and license
the marine activities of commercial companies and national
states. For the most part, they are opposed by the more
developed states, especially those with advanced maritime
capabilities [42 p. 28]. The United States, as one of those
advanced maritime states, has ".; .suggested that the

41

International agency limit itself to licensing states or
enterprises sponsored by states, inspecting and regulating
their activities and collecting revenues for the inter-
national community." [66 p. ^75] In addition, the U.S.
indicates that "...the more industrially developed states,
whose activities will be most affected, will require a
voting structure that protects their interests." [66 p. ^76]

To effect a compromise between these two views an
effective regime must evolve a new form of international
organization based not only on the one nation-one vote
principle, but also on the representation of commercial and
scientific interests as well. A comprehensive proposal for
a new type of organization is found in Elizabeth Mann
Borgese's Ocean Regime; it would put national representatives,
marine producers, marine consumers and scientists in four
councils constituting the legislature . [9] . In its character,
the international regime might become part government, part
business, part tribunal and a new international philosophy.
Such a working regime has the possibility of so linking major
ocean issues together that the member governments could make
the optimal trade-offs among their conflicting solutions.

Under the present legal regime of the ocean, the
U.S. Navy enjoys a maximum of freedom. Any new order that
were more structured would seem only to curtail this freedom.
Such curtailment might threaten naval mobility and activities.
A new regime might require and enforce pollution, safety or
navigation standards noxious to the Navy and unacceptable to

42

the U.S. But the curtailment of more freedoms appear
Inevitable unless an effective international regime pre-
cludes excessive national encroachment upon the remaining
open space, especially as economic competition becomes more
intense. A consistent and objective international regime
stands to provide the Navy with a better guarantee of freedom
for naval operations within the bounds of established inter-
national law than a free and open system subject to the
whims and assertions of individual coastal states. Respon-
sible maritime users should find it more satisfactory to
operate under a single authority than the myriad of conflicting
national and regional regimes now emerging to fill the juris-
dictional vacuum on the high seas. The concern of the U.S.
Navy is to determine which international arrangements would
provide the best accomodation for the needs of America's
world-wide maritime power and the sea force which supports it.

C. THE INTERACTIONS OF THE ISSUES

It was stated earlier that the division of the Law of the
Sea problem into seven major issues is for analytical conve-
nience only. The preceding introduction of each of the issues
illustrates how involved each is with the others. The
maritime states are not only concerned with how extensive
their territorial sea might become, but also how the terri-
torial sea of others might affect their own transit through
straits. Coastal states are concerned with the pollution
affects from large scale resource extraction, while less
developed countries feel that a weak international regime

43

would concede to the developed countries unchallenged access
to the ocean's resources. The naval powers are concerned
that any further limitation of marine research would be
detrimental to the maintenance of national security, while
some less powerful coastal states are apprehensive about
others exploring off their coasts.

It would require a complex matrix just to depict the
interrelationships among the seven major issues which are
of greatest relevance to the U.S. Navy. Nevertheless, for
an analytical examination, each issue must first be weighed
separately with scientific and societal gauges. Afterwards,
the interdisciplinary synthesis should take into account all
ocean users. Both the analysis and synthesis are work for
lawyers, politicians, marine scientists, marine industrialists
and naval strategists.

Several interactions can be identified as possibly
providing keys to turn and resolve a number of issues. In
fact, some interactions may prove more important than the
constituent basic issues. Most notable among these is the
effect of extending the territorial sea to twelve nautical
miles or more upon other issues. The 116 identified inter-
national straits come first to mind, but scientific research
could be limited by an extensive territorial sea or itself
help confine the pressures for massive extensions by accurately
delimiting the areas of greatest economic potential. Addi-
tionally, universal and enforced pollution regulations might
help induce states bordering international straits to concede

44

the right of umimpeded transit. For all these reasons, it
would appear that the character of the international regime
cannot be determined until the precise limits of national
jurisdiction are established.

45

IV. THE SPECTRA OF PROBABLE SOLUTIONS TO THE ISSUES

A. CONSTRUCTION OF THE SPECTRA

For each of the seven major Issues there is a wide range
of possible solutions. This author has limited each range
or spectrum so that, in his opinion, they contain at least
the solutions which may be discussed by the international
community within the foreseeable future. Examination of each
spectrum will seek to identify: (1) the present situation
regarding each issue, (2) the most likely solution in view
of the present international climate, and, in the writer's
opinion, (3) the best solution for the U.S. Navy, and
(4) the optimal solution for the United States. It is note-
worthy that the last two solutions may not always be coincident
and axiomatic that the latter solution ought ultimately to be
given precedence over the former. Discussion of other solu-
tions within each spectrum whenever they particularly effect
the U.S. Navy may also be included.

Some of the spectra are continuous, for example, the
territorial sea where an infinite number of solutions is
possible. Others are by their nature discrete, such as the
international straits, the solutions to which take several
distinct forms.

Each spectrum will be arranged on two scales. One scale
will position the solutions such that the most laissez-faire
is on the left and the most structured or publicly regulated
is on the right. This analysis of unstructured to structured

k6

solution might be the most restrictive to naval operations
in some cases, it is by no means always so. The second scale
will position the solutions such that the one of most extensive
national jurisdiction is on the left and the one of most
extensive international jurisdiction is on the right. These
scales are only qualitative and certainly not all inclusive.
Neither the solutions or their discussion are meant to be
exhaustive but are meant to bring out the most important
aspects of the Law of the Sea to the U.S. Navy.

B. SPECTRUM 1: NATIONAL SECURITY AND PEACEFUL

USE OF THE OCEANS

The emerging Law of the Sea has been viewed by some as a

vehicle for the partial or complete demilitarization of the

ocean, with the hope that this would lead to the "complete

and general disarmament" of the world. This goal is one of

the "Basic Principles of Relations between the USA and USSR,"

signed by President Nixon and General Secretary Brezhnev,

May 29, 1972, and repeatedly promulgated by the UN General

Assembly. The demilitarization of Jl% of the earth may

sound fantastic, but it might well contribute to insecurity

and aggression where before available sea forces were a

deterrent. The demilitarization of the ocean is not likely

as long as militarization on the land gives people reason

to fear and seek counter balancing means of deterrence and

defense. It may be argued that the demilitarization of

outer space and Antarctica and the denuclearization of the

seabed are analogs for the demilitarization of the oceans

47

as a whole. The critical difference is that the oceans have
a history of military use, whereas the others have not, and
the ocean is now being utilized militarily unlike the other
environments [25 p. 58].

Janes ' s Fighting Ships indicates that 107 states possess
national navies, although only some twenty have significant
ones of more than coastal capability. Thus, many members of
the international community might believe it advanatageous to
declare the immediate demilitarization of the seas [2 p. 85].
However, the larger number will not wish to forego the option
of receiving military assistance from others in a moment of
trial. It is reasonable to conclude that for a majority of
states military considerations "...will far outweigh any
consideration of economic development." [9 p. 26] Certainly,
coastal states will be prodded by their own navies to insist
upon provisions to accommodate defense interests in any
international framework [1 p. 14],

The arguments over demilitarization must not be allowed
to stifle all progress in a new ocean order. Doctrinal or
emotional preoccupation with the presently unattainable goal
of complete prohibition of military use of the ocean would
only delay dealing with more immediate obstacles such as
differences over an international regulatory system for
commercial development [18 p. 113]. Hopefully, some compro-
mise may be found which would acknowledge, pursuant to
international law, an Inherent right of every state to make
"peaceful use" of the ocean, including lawful use of national

48

military forces in the high seas [9 p. 11]. To be realistic
"peaceful uses" must not exclude the military from activities
such as scientific research, the temporarily exclusive use
of prescribed parts of the ocean by the military and the
placement of military tracking and detection equipment on
the seabed [9 p. 20]. No restrictions would prevail, of
course, whenever, a state exercised its inherent right of
self defense or collective defense against an armed attack,
as set forth in Article 51 of the UN Charter. Nor would
enforcement measures pursuant to decisions of the UN Security
Council or General Assembly be contrary to the exclusive use
of the ocean for peaceful purposes.

Were future international law to prescribe the peaceful
uses of the oceans that were authorized national military
forces, there would be little scope for new technology and
change. Rather, new law should only define what is considered
not peaceful. Even so, thoughtful consideration should be
given to possible scientific and technological acheivements
which may change present intentions as to the law. For
example, the submarine, under the current law of "innocent
passage" must surface when transiting, but present and
anticipated technology makes this requirement a danger to
the sea-based deterrent of the nuclear powers . The nuclear
powered, long range ballistic missile submarine presently
capable of speeds approximating 40 knots and operational
depths of more than 1000 feet [6 p. 24] is able to utilize

49

the marine environment continuously for concealment and to
retaliate with assured destruction against all points on the
land mass [21 p. 33]. Under development by the United States
today is ULMS, an Underwater Launching Missile System
extending the Poseidon missile's range to at least 6000
miles [2 p. 78]. The maximum value of the military submarine
is attained only when it is allowed both to remain submerged
and maintain wide freedom of movement [2 p. 80]. As anti-
submarine warfare techniques improve, submarines must devote
more emphasis to concealment and mobility in order to maintain
their viability and deterrent role [29 p. 184].

The United States and the Soviet Union operate the over-
whelming majority of strategic missile firing submarines.
So far, neither has proposed any limitation on their operations
[25 p. 52], but only on their respective number. Many other
nations have submarines, both military and research types,
and several have or are building strategic missile firing
submarines, i.e., Great Britain, France, and The People's
Republic of China. "If there is a validity in the widespread
belief that the existing deterrent system works to reduce the
likelihood of a major nuclear war, then it is extremely ill-
advised to take actions which could lessen the effectiveness
of that system." [18 p. 9^~] Because of their invulnerability,
the "...missile launching nuclear submarine represent the
least unstable form of the arms race and we are probably
going to keep them... in the deep oceans." [39 P- 171].

50

To date, there is no great threat, military or legal,
to the nuclear submarine in deep water [21 p. 33]- The
Seabed Disarmament Treaty leaves an enormous water volume
in which navies may operate, a volume that could only be
further limited legally in progressive increments upwards
from the seabed to the maximum crush depth of military
submarines [75 p. *H8]. In the author's opinion, present
international law, with the exception of needed unhampered
transit right through international straits, is functioning
adequately for the use of military strategic submarines.
What will tomorrow bring? Dr. John P. Craven observes that
the sea's surface has always imposed restrictions upon its
use. He mentions:

(1) the perils posed by the changing conditions
of the wind and the sea;

(2) the impossiblity 'to make landfall at an
arbitrary portion of the coast for transfer of
personnel or cargo' under moderate or modest
sea conditions;

(3) the limitations of speed on the seas;

(4) the exposure to optical and electromagnetic
spectra;

(5) accommodation of large volumes and tonnages,
limited by draft and harbor conditions;

(6) accessibility of seaborne vessels and instal-
lations to aircraft or airborne vehicles [25 p. 5*0.

This list suggests that more and more marine activities in

the future will be conducted submerged.

Past legal solutions to ocean use problems have tried to

keep surface and. submerged activities differentiated, e.g.,

the 1958 Conventions. Future proposals for the Law of the

Sea, though, must consider a technology that is invalidating

51

this dichotomy and sure to "...add complications not now
evident." [21 p. 331. Submersibles may be developed that
are :

(1) nonmilitary

(2) unable to operate on the free surface

(3) designed to operate principally at very deep
depths

(*0 able to operate primarily at or on the bottom

(5) unpowered and serve as underwater barges or
semimobile stations

(6) low-cost and thus available to a rapidly
expanding number of users. [21 p. 33]

The Grumman Corporation has successfully submerged the

Ben Franklin in the Gulf Stream to drift for an extended

time and distance, illustrating at least (1), (5) and (6)

of the above [56 p. 119]. A need can be seen for regulating

traffic for submersibles, including military ones as they

increase in number and mobility [29 p. 8^4], It may even

become necessary to identify all submerged, man-made objects,

since a form of anonymous warfare is otherwise made possible.

One observer has speculated that certain military forces be

assigned "...an especially protected position." [18 p. 90].

But electronic means of identification appear more promising

as a future solution.

If Mahan's axiom that technology changes tactics, but

not strategy, is true [19 p. 139], then the present ocean

strategy and accompanying law should prove valid as long as

the missile armed submarine is effective as a deterrent or

destroyer. The submersible appears to possess now and in the

foreseeable future advantages over any anti-submarine forces.

The great emphasis of anti-submarine technology has recently

52

been in acoustical detection, so this threat is presently
the most likely danger.

Acoustical systems are operational on the seabed, in the
water column, aboard aircraft, from submarines and upon
surface ships. Hydrophones can be placed on the seabed or
slightly above it in order to maintain a continuous watch on
the sound channel at ranges extending across ocean basins.
The axis of the sound channel varies in depth from the
surface to 2000 meters in the world's oceans. A passive
listening system is most effective when implanted in this
channel, because sound is therein focused and transmitted
great distances. Present military submarines have maximum
operating depths far less than 2000 meters, while the seabed
of the continental shelf or slope is generally of a depth
within the sound channel [2 p. 79]. For ocean basins the
topography of which does not accommodate shelf mounted
acoustical arrays, basic research is presently aimed at
hydrophone systems capable of deep ocean surveillance.
Deep ocean acoustical arrays must be located in strategic
points in the water body to be effective. Since hydrophone
performance is now nearly optimum, it is in the signal
processing that the greatest advancements are yet to be made.
These immobile arrays are limited by their hard line wire
connections to shore based monitoring stations and the fact
that high quality submarines can avoid transiting near the
arrays or operate below the detection threshold of the
passive system. However, acoustics are still the primary

53

tools of anti-submarine warfare (ASW) . Submarines remain the
best mobile acoustic platforms, while surfaces ships have the
advantage of offering command and control in the ASW situ-
ation [12]. Near shore and shallow water areas pose other
problems, such as high amounts of background noise generated
biologically and by human activities [73 p. 161]. Present
projects by the U.S. Office of Naval Research include:
Suspended Array Subsystem (SASS), huge hydrophones held in
the water column for detection in and below the duct; Towed
Array Subsystem (TASS), small hydrophones for target locali-
zation by ships, submarines and helicopters; and Moored
Surveillance System (MSS), air dropable semipermanent barrier
hydrophones [6 pp. 25 to 27]. As a counter to extensive
acoustical ASW efforts, military submarines have become
ultra-quiet [19 p. 139].

Even with further improvements in acoustical systems,
alternative means of detection must be available after any
explosion in a hostile action saturates the water column
with high energy, broad-band sound. Optical systems such as
lasers are effective but only in the upper 100 meters or so
of the water column. Satellite optical systems are often
rendered ineffective by cloud cover. Magnetic Anomaly
Detection (MAD) has many limitations. The detection of
thermal scars, heat generated by a moving submarine appearing
in a wake at the surface, is a new possibility as yet
unevaluated [70]. The use of sufficient attack submarines
as tails to shadow every deployed ballistic submarine is cost

5^

prohibitive. Submarine hulls of small dimension made of
titanium, fiberglass, plastic or stainless steel can
possibly negate future gains which may be made in active
sonar or magnetic detection systems [19 p. 1^0]. Such smaller,
more versatile submarines could be powered with fuel cells
making them cheaper, faster and more maneuverable over a
short range than present nuclear powered submersibles [19
p. 139]. Consequently, in the foreseeable future, the
submarine will certainly remain a formidable weapon in an
opaque ocean. Any ocean policy and international law must
reflect this fact.

Warships have traditionally been regarded as virtually
sovereign and a part of a nation beyond its territorial
bounds [13 p. 152]. However, military aircraft have never
enjoyed this status. Aircraft may no longer constitute a
viable strategic weapon system, but they still provide a
significant contribution to sustained tactical and support
operations [2 p. 8l], They can tip the balance in a limited
conflict by permiting quick movement of ready forces or
bringing devastating firepower against guerilla activity
[29 p. 188]. Besides, aircraft are of growing importance
in the international movement of passengers and cargo. Con-
sequently, it is essential that overflight of international
straits be treated just as movement over the high seas,
unfettered and free.

Rules must certainly be developed against haphazard
proliferation of underwater installations in the ocean.

5

c

Restraint and regulation must apply to military, commercial,
navigational, scientific, communication and environmental
monitoring devices, on and beneath the seabed [18 p. 95],
whether afloat, in the water column or on the sea surface.
It is Impractical and perhaps threatening to attempt to
outlaw those installations connected with anti-submarine
warfare. Outright prohibition is neither a guarantee of
peace nor a guarantee that the nuclear deterrent would be
preserved [18 p. 89]. On the other hand, an all embracing
international surveillance system to monitor ocean activity
could be worthwhile for the control of civil transport, the
monitoring of pollution and apprehension of law-breakers,
but would have little military value [39 p. 169].

A map of merchant ship distribution (Figure 5) and of
natural resources (Figures 9 through 12), indicates that sea
control by a naval force requires dominance primarily of the
shallower portions of the oceans [19 p. 142], The continen-
tal margins, then, take on great importance for the major
military powers [1 p. 5]. It is to be expected that any
coastal state would normally perceive the presence of a
surface or submerged naval force or device off its coast as
a possible threat to its security [50 p. 8], Although, no
U.S. nuclear strategic submarine has ever threatened a coas-
tal state just by transiting close to its shores [531- Only
the limited capability to detect and destroy the submarine
or underwater installation has probably prevented many
coastal states from banning these hidden military activities

56

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Figure 5. Worldwide Merchant Ship Distribution in 1969

OFFSHORE RRERS IN WPTER DEPTHS OF LESS THPN 200 METERS

4 • . . .

Figure 6. America's Continental Shelf

[United States Coast and Geodetic Survey]

57

from their continental shelves . [25 p. 56]. By the 1958
Continental Shelf Convention though, reasonable deductions
as to the rights of military installations on the shelves
can be made:

1. The setting up of military installations on
the Continental Shelf should be placed under the
control of the Coastal State, in the same way

as the Continental Shelf is placed under its
jurisdiction only for exploration purposes and
the exploitation of its resources.

2. The setting up of such military installations
must not interfere unreasonably with utilization
of the Continental Shelf [18 p. 180].

This provision infers that the means must exist to police,
prove infringement and punish any such rules established
[18 p. 181]. Accepted international practice does not
consider visual, electronic [50 p. 10], acoustic or seismic
surveillance to be an infringement upon sovereignty. The
scope of any new international laws concerning ocean military
monitoring devices must be similarly restrained, so that
they govern location and not the type of monitoring activities

For world-ranging naval forces, the present situation
is advantageous: full freedom of movement and activity while
engaged in the peaceful use of the high seas and seabed
beyond national jurisdiction. The critical problem is that
coastal states are tending towards an expansion of their
jurisdictions and reducing the area of the high seas. There-
fore, more formal and structured internationalization of
the high seas and deep ocean seabed affords a counterforce
to national claims and unilateral extensions. The question,
then, is how to establish a new International regime which

58

preserves essential uses to national military forces. The
deep seabed should remain denuclearized, while the freedom
continues to place military monitoring devices there.
Provision should be made for the safer movement of all
ships, including submersibles , and nothing should abridge
the right to deploy submarines with nuclear weapon systems
in the oceans. This direction promises the best solution
for the U.S. Navy and the United States as well.

Extensive restriction on naval uses of the high seas
may well increase the probability of interstate conflicts
at sea and, certainly, would add to tensions and uncertain-
ties resulting from interrupted marine commerce and efforts
to enforce allegations which would frequently lack credibility
In any period of tension or conflict, national navies would
be required to react, perhaps thereby creating new breaches
of international law due to unrealistic restrictions placed
upon naval operations. f

C. SPECTRUM 2: THE TERRITORIAL SEA

The foremost significance to the United States Navy of
the territorial sea is how much of the world's ocean remains
high seas. Freedom of movement on the high seas is most
important to naval nuclear strategic forces. Freedom of
transit through international straits and narrow seas and
assurance of innocent passage through territorial seas are
vital to conventional naval operations. Free transit through
straits is critical to a quick initial response by naval
forces [2 p. 82].

59

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Proposals for the breadth of the territorial sea pre-
sently range from 3 nm to 200 nm [2 p. lH , 13 p. 351].
Great variations in motives produce this divergence and the
many intermediary delimitations. Countries which insist
upon a minimum territorial sea include those having large
navies or merchant marines and far reaching, modern fishing
fleets. Their economies are usually well developed and
highly dependent on world trade. They include many states,
but not all, that have a narrow continental shelf, few known
off-shore natural resources or little threat from pollution
by neighboring states. Those countries demanding an exten-
sive breadth of territorial sea include coastal states with
wide continental shelves and important coastal resources,
plus others with economies already dependent on near shore
ocean activities. Many developing states with substantial
coastlines are supporting extensive territorial seas wishing
to keep their diplomatic options open Until their national
interests in the oceans are better assessed [2 p. 15]. Some
states have both near shore and far off-shore interests,
and could support either a narrow or wide territorial sea.
The United States and Russia are good examples. Thirty-one
states are land-locked and normally share the interests of
those favoring a narrow territorial sea and explicit limita-
tions on the claims of coastal states. The land-locked are
a significant and sometimes overlooked category of states
that might provide a mediating and compromising force
in the Law of the Sea negotiations.

61

The aspiration for a territorial sea of 12 nautical
miles appears to have been given hope of eventual fulfill-
ment internationally by the 1958 Convention of the Territorial
Sea. Article XXIV [2] states that "... the contiguous zone
may not extend beyond twelve miles from the baseline from
which the breadth of the territorial sea Is measured" [13
P. 350]. With the exception of most international straits,
it ensures a near maximum of movement for shipping and navies,
while giving the coastal states a significant amount of
the continental shelves and water above . (Figures 4 and 6).
A 12 nm territorial sea would include a great amount of the
most exploitable living and non-living resources of the
seas (Figures 9 through 12) . It also provides an adequate
defense zone against conventional warfare. However, navies
and merchant marines of the world could effectively operate
in an ocean where transit was guaranteed beyond a maximum
of 12 nm.

The establishment worldwide of the twelve nautical mile
territorial sea would have no important effect on present
or foreseen operations of national seaforces, except those
associated with the issue of the international straits.
Aside from amphibious or support operations, the great bulk
of peacetime U.S. Navy activities occur beyond twelve nauti-
cal miles. Strategic submarines need the maneuvering room
and opaqueness of the open oceans, while surface ships obtain
protection over the horizon and at geater distances from
many shore-based radar, radio and visual detection systems.

62

A 12 nm standoff from a coast does, however, lessen such
advantage a naval ship may provide when observable from
shore, as for a show of force or the flag. Considering the
ranges and navigation systems of modern ships, aircraft and
missiles, a territorial sea of 12 nm would not appear to
affect the nuclear stalemate in the oceans between the two
super powers [2 p. 38]. Both the United States and Soviet
Union support a 12 nm maximum limit conditioned on an inter-
national guarantee of free transit through and over straits
used for international navigation [57 P. 826, 27 p. 4].

The 200 nm territorial sea represents the most extensive
distance seriously pursued by any nation and its discussion
is relevant to all claims much beyond 12 nm. Chile first
advocated the 200 nautical mile distance in 19^7 and today
is joined by at least nine other Latin American countries.
Extensive claims like these are not totally new. Spain and
Portugal prevailed upon the Pope to divide the world's
western ocean between them in 1^93s while Russia, under the
Czars, claimed almost half the Arctic Ocean as a closed sea.
Recently, Canada unilaterally claimed exclusive control over
the regulation of pollution in the Arctic zone from her
shores to 100 nautical miles [46]. Iceland has made clear
her objections to any other nationals fishing within 50 nm
of her coast [31].

Most of the claims for a territorial sea wider than 12
nm are based, with few exceptions, on the desire to protect
fishing areas upon which the economies of many of the claiments

63

have historically depended or which may be important in the
future. They have apparently not been advanced primarily for
jurisdiction over navigation or other rights associated
with the territorial sea [44 p. 766]. Overfishing by local
fishermen and the long ranging fleets of other nations has
contributed to the decreasing annual catches in many areas
since shortly after World War II [47, 35 pp. 539 to 546].
Since the contiguous zone of 12 nm and the continental shelf
is already available to the coastal state by effect of the
1958 Continental Shelf Convention, a claim of a territorial
sea of 200 nm does not offer much more than planktonic and
nektonic living resources. The significant open ocean
species of tuna, salmon and the like will have to be con-
trolled by separate convention. The most biologically
productive areas of the ocean (compare Figures 11 and 12
with Figure 7) and the anticipated mineral resources from
the continental shelf (compare Figures 9 and 10 with Figure
7) do not conform to a two hundred mile line. At times such
would even be inadequate but generally it is unnecessary.
As a buffer against the most insidious and extensive forms
of marine pollution, such as heavy metals, radioactivity,
chemicals, micro-organisms and atmospheric fallout of vapors,
a 200 nm territorial sea is ineffective.

The establishment of a territorial sea as wide as 200
nm would have grave consequences for every nation dependent
on global transportation and trade. The United States, for
example, moves 99$ of its overseas trade by ship [31 p. 27].

64

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65

Two hundred miles would also have serious repercussions for
the strategic military balance among the great powers.
This shift would affect every state, whether developed or
developing. Figure 7 shows the extent of a possible world-
wide 200 nm territorial sea. Essentially, the high seas
would be limited to several large ponds in the Atlantic,
Indian and Pacific Oceans. A warship could be legally
trapped In one of these high seas if the claimed perogatives
of several coastal states to regulate passage were the rule.
Naval strategy would be affected by the constrained limits
to which fleets could maneuver or their weapons utilized.
Twelve miles or 200 miles does not affect more than the
accuracy of most medium to long range missiles, but the
larger distance closes to unrestricted navigation the Medi-
terranean, Baltic, Sea of Japan, South China Sea, Carribbean
and Gulf of Mexico [2 p. 80]. Such a great reduction in
operating area for military submarines could greatly increase
their vulnerability to ASW systems. In wartime the 200 nm
limit would be even more intolerable to naval operations.
Combatant states engaged in the survival of their country
might unwillingly involve neutrals in their struggles.

Some states have added national security to their justi-
fications for an extensive territorial sea. However, in
view of present and predictable military technology, these
medium range distances are irrelevant as a protective measure
[58 p. 75]. It may be argued that with the longer range
and more accurate submarine missile systems and their deeper

66

operating depths, a 200 nm territorial sea could still
afford the strategic submarine necessary security. Rapid
improvement and increased proliferation of passive acousti-
cal arrays and the construction of an effective attack
submarine force could well erase such earlier technological
gains of the ballistic submarine. Forcing the submarine
into the abyssal plains also denies them the excellent
navigation and protection afforded by the topography of
the continental shelf, slope and rise.

Of what value are extensive territorial seas to nations
that cannot patrol them [2 p. 98]? Governments must realize
that the larger their sovereign waters, the more extensive
must be their responsibilities in them. This responsibility
will include the use of a sea force for policing and enforcing
national and international laws.

The traditional concept of the territorial sea as an
extension of the national jurisdiction over a narrow adjacent
margin of the ocean is being augmented by an additional
concept of national jurisdiction over certain ocean activi-
ties some distance from the coast [1 p. 12]. This has given
rise to the suggestion of an "economic zone" as limited
extension of national authority beyond the territorial sea.
This proposal would allow a state exclusive use of the re-
sources found within a yet to be specified distance from
the shore line. Presumably, the zone would also confer
authority to enforce health, customs and pollution measures
and, of course, insure a coastal defense zone. The danger

67

is that this zone would soon become an extensive territorial
sea.

At the last preparatory meeting of the United Nations
Seabed Committee in Geneva in the summer of 1973, the dele-
gates reached a widespread concensus for a territorial sea
of 12 nautical miles in breadth, but only if effective con-
trol by the coastal state were assured over the seabed and
living resources. It is, therefore, probable that if an
international decision on the territorial sea were reached
in the near future, a breadth of 12 nautical miles would be
the limit. For the U.S. Navy, this universal extension
would be an acceptable distance, if the international straits
issue were favorably resolved. The United States has other
vital interests to be considered, but none which would
override the concern for the security of transit and
capability of deploying its military forces.

D. SPECTRUM 3: INTERNATIONAL STRAITS

Figure 2 and Figure 8 considered together show the extent
and importance of the issue of international straits. Re-
striction or closure of any number of these narrow passages
would have effect upon world economics as well as international
security. In the past, international law has utilized the
concept of innocent passage [13 p. 3^7] through those inter-
national sea lanes which are within claimed territorial
water.

In recent times the growth of large navies, oil fleets
and merchant traffic has prompted many coastal states to

68

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interpret Innocent passage subjectively. It is argued that
this is a perogative of the coastal state in the waters
under its jurisdiction [76]. Necessarily, states bordering
straits have become more aware of the dangers arising from
pollution as a result of intense traffic in the straits.
These states are also apprehensive of warships and military
aircraft transiting close to their shores. Certainly regu-
lations and their enforcement are needed for safety, effi-
cient navigation and pollution prevention in these congested
areas. International standards and supervision would seem
to be more advantageous to both the straits states and
the vessels using the straits. The adoption of a territorial
sea of variable width [2 p. 86] to create a high seas transit
zone [56 p. 784] within each strait would facilitate this
end. If the creation of this internationally controlled
corridor cannot be achieved, the next best solution would be
a guarantee by international treaty of freedom of transit for
all vessels through international straits that fall within
the territorial sea. This freedom of passage would have to
be well defined and ensure a vessel of any type or nationality
the unhampered right to navigate those designated waters on
condition that the flag states observe international agree-
ments and subsidiary standards for environmental protection,
navigational safety and international security. The exploi-
tation of natural resources within the straits by the adjacent
states will tend to curtail this freedom of transit, making

71

it more imperative that a non-national solution to the
straits issue be adopted [40 p. 6].

The solution of the international straits issue Is tied
most intimately with that of the territorial seas issue.
If 12 nm or more were established as the seaward limit of
national sovereignty, the terms: of passage through affected
straits would have to be determined. No state with a large
navy would accept the closure of these strategic channels to
their warships, nor would the world's trading nations long
tolerate uncertainty of transit for cargoes moving on or
over the sea.

With regard to the navies of the United States and
Soviet Union in particular, the question of submerged transit
of military submarines must be examined. Requiring missile
submarines to surface and show their national ensign when
transiting these choke points might tilt the delicate
strategic balance between those two countries. Shallow
waters are difficult and dangerous for the present day large
military submarine to maneuver in [19 p. 1^3] > submerged or
surfaced. A good anti-submarine sonar net in a strait might
appear to invalidate the security afforded by submerged
passage [^ p. 780]. This is apparently not so, though
improved technology and increased use of ASW systems may
change this In the future. In addition, if any type of
monitoring system were to be placed in a recognized terri-
torial sea, it would require agreement by the contiguous
state [2 p. 80]. Logically many states can be expected to

72

forbid all ASW seabed systems In waters they have jurisdic-
tion over, thus prolonging the tactical advantage of the
submarine in these areas. The advent of the commercial
submarine, especially ones incapable of surface operations,
however, will require precise tracking and control especially
in restricted waters. The range of submarine missile systems
does not necessitate submerged passage through straits. The
value of this submerged transit is to allow the covert move-
ment of strategic forces from one part of the world's ocean
to another.

Conventional naval forces would be even more affected by
the restriction of movement through international straits.
The need to move and move quickly to any given location in
the ocean while maintaining efficient logistics lines is
necessary in the role of the U.S. Navy as a limited deterrent
force. Naval units or whole fleets could be trapped within
a water body or at least forced to take longer alternate
routes by legal closure of a strait. There is no guarantee
that this closure would stop a determined sea force from
transiting despite protest. The U.S. Department of Defense
is indeed resourceful enought to find alternatives should
its free passage proposal be rejected by the international
community [44 p. 786]. Unfortunately any restriction of
movement through straits would most probably lead to larger,
more dispersed national navies together with acceleration of
the development of more numerous and potent weapons systems.

73

i \

There are also disadvantages to the coastal states who
would have sovereign control over international straits.
The responsibilities of management, navigation, pollution
and their own exclusive exploitation of marine resources in
these zones would be greatly complicated and increased by
the intense marine traffic in the straits. The potential
for an unstable balance of military power and conflict are
also added burdens upon the strait state which controls
passage through the strait [44 p. 777].

Agreement on the international straits issue appears to
be the key to unlocking the satisfactory settlement of the
territorial sea issue for naval and maritime states,
including the United States. Compromise is necessary.
Ambassador J.S. Amerasinghe, the UN Seabed Committee
Chairman, has stated that this must be "...agreement to no
more than the right of innocent passage through straits
falling within the territorial sea." [4 p. 19]. This is no
compromise at all but the continuance of the present situa-
tion. It is unfortunate that an equitable and timely Lav; of
the Sea resolution might be jeopardized by hope for the small
victory over free transit.

If any international decision is reached on this issue
it will include some form of adequate guarantees for transit
through international straits by all ships [11 p. 2]. For
the United States this would be the minimum acceptable
solution, while the U.S. Navy could accept free transit only
for naval vessels and support ships. Increased use and

74

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dependence on straits by the military and commercial ships

of the United States will make it advantageous to have

international regulation of navigation and safety in these
waters .

E. SPECTRUM 4: MARINE SCIENTIFIC RESEARCH

This issue draws significance at this time primarily
because of recent restrictions on marine research in shallow
waters near or within claimed territorial seas. The coastal
region from the shore to the edge of the continental shelf,
at an average depth of 200 meters, provides the most dynamic
and potentially valuable ocean area of interest to man.
Study of the marine life, non-living resources, geology and
water masses of this thin strip of marine environment is
necessary for the earliest full use and protection of the
oceans as a whole. The establishment of any width for the
territorial sea would have a minimum effect on scientific
research in those nationally controlled areas if provision
were made by international convention to guarantee the
scientist basic freedom to study there [2 p. 42].

One reason for the reluctance of coastal states to allow
complete freedom of scientific research in the territorial
sea or on the adjacent continental shelf seabed is the fear
that information gained could be used to the detriment of the
coastal state. An increasingly sophisticated world knows
that any scientific research can be used both to aid and harm
mankind. To place total restriction on all marine research

76

in waters under national jurisdiction is not justified in
view of past experience which indicates that the vast bulk
of scientific Information is used for constructive purposes.
It Is not even practical to try to limit modern marine
research to designated geographic areas since satellite and
aircraft scanning, electronic sensing, seismic pulsing and
moving water masses cross these artificial barriers arbi-
trarily making much in situ sampling unnecessary. Any
formula to distinguish between pure scientific research,
military research, industrial research or prospecting is
doomed to failure in interpretation [4 p. 18]. The United
States has advocated that the responsibility for determining
whether marine research is to be termed open for international
dissemination and not for military intelligence or industrial
purposes should be placed on the flag state [62 p. 1024].
This plan is not likely to convince the opponents of freedom
of research to change their position.

The 1958 Convention on the Continental shelf was a
deliberate attempt by the International community to keep the
oceans open to scientific research [33 p. 46], even in waters
under national jurisdiction [13 p. 376 Article 5 (1), (8)].
Yet at the last preparatory UN Seabed session in Geneva, only
the United States and Russia supported freedom for marine
research [62 p. 1024]. A study of the lopsided world distri-
bution of oceanographic research vessels, research funds and
marine scientists among a relatively few nations [9 p. 39] is
at least one reason for the lopsided enthusiasm on this issue.

77

For any country to develop its off-shore resources and protect
the ecological balance of the coastal environment some form
of marine research is necessary. Most undeveloped states at
present do not yet have a minimum of this capability. Many
unilateral agreements to help them achieve the needed tech-
nical expertise, trained operators and equipment have been
volunteered by those states adept in the ocean sciences.
However, a more palatable and equitable source for this
exchange is the international organization. One of the most
active in marine science is UNESCO. Through its Oceanographic
Office and the Intergovernmental Oceanographic Commission
(IOC), a program is in progress to assess the most urgent
needs for ocean research of developing coastal states. To
best establish any activity in their waters, an international
scientific organization must emphasize that it is not taking
research but giving information that will help the developing
state utilize their marine jurisdiction to the greatest
advantage [67].

Much opposition to the free access to ocean waters by
scientists is based on the fear that information gained will
be used for military purposes. Certainly scientific research
is necessary for new weapons development, but a defense es-
tablishment will find ways to do that research regardless
of whether or not the territorial seas of other states are
closed for investigation. Especially with regard to ocean
borne nuclear weapons platforms, more scientific research
is necessary and desirable to make them safer and effective

78

enough in their role to preclude the need for more of them,
bigger missile warheads or more dangerous tactics. The
nuclear stalemate is a fact and its maintenance appears to
be imperative until a viable alternative is found. If
freedom of marine research is made more or less for any
given country, then the potential for an equal capability
in marine technology for that state, particularly one that
is militarily advanced, Is frustrated. This could lead to
an instability of world power. Any disarmament negotiations
between nations must be based as well on sound technical
information and assessment which can only be gained by
equal access to a maximum of ocean space for research. A
system of international monitoring and/or enforcement of
ocean laws must also be aided by marine research and
technological advancement .

To satisfy efficiently world needs from the oceans,
particularly for food, scientific efforts must be coordinated
and exchanged between all states. For this reason alone, a
central international marine agency is a necessity. Inter-
national supervision or regulation would ensure the most
efficient use of scientific research for the world at large
and still permit national marine investigation to continue
under tenable standards for safety and equal opportunity
for all scientists. The scientific community can aid their
own objectives by making clear those needs and goals of
research that will be beneficial to all nations and assure
their freedom to conduct this research by the free and
enthusiastic exchange of the results.

79

The United States Navy will be affected by any restric-
tion of marine research. The Navy's oceanographic budget
alone accounts for over half the total federal budget for
marine sciences [7*1 p. 299]. Much of this budget is directly
related to research at sea. The U.S. Navy has accepted
responsibility to lead the nation in the development of
ocean technology [7*1 p. 308] and as a result more than 90%
of basic data gathered by the Navy is unclassified and freely
available to any person for legitimate use [7^ p. 307].
It has been recommended that the Navy even expand its
present oceanographic research, in particular, acoustics
research [20 p. 30]. Worldwide ocean research of particular
concern to the Navy involves not only acoustics, but long
range environmental prediction and seabed topographic mapping,

The United States and its Navy have both the most to
gain as well as share from research coordinated and pro-
tected by international machinery over a maximum of ocean
area. Having the world's best capability either to gather
or utilize scientific information, the United States should
urge international cooperation in marine research through
mutual sharing and common programs. Nations less advanced
in marine activities might feel compelled, out of fear or
ignorance, to restrict marine research where they can and
have it closely monitored where they cannot. Such reactions
may successfully be overcome only through international
institutionalization of marine research. The freedom of
science as well as the Navy may depend on it.

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F. SPECTRUM 5: MARINE RESOURCES

Some states might be little interested in the final
outcome of the other issues, such as international straits
or pollution, but, without exception, all are keenly con-
cerned with the outcome of the resources issue. Perhaps,
by the early twenty-first century, marine resource use and
exploitation will replace security as the overiding national
interest in the oceans [1 p. 11]. A historically abundant
harvest and a multitude of uses from the oceans [35 p. 670]
have spurred optimistic estimates of the great potential in
quantity and renewability of marine resources. Many of these
estimates, particularly with regard to living resources,
are proving unrealistic and not to have taken into considera-
tion the second order effects inherent in the extensive
exploitation of any resource.

Since the resources of the territorial sea and continen-
tal shelf to at least 200 meters depth have already been
allocated to the coastal states, it remains for a decision
to be made on those resources in the extensive water body
beyond 200 meters and the deep ocean seabed. This decision
will determine how much of the resources of the common heri-
tage will be left to the management of the International

1
regime. The freedom to fish for all nations is guaranteed

by the 1958 Convention on the High Seas, but the concept

of res nullius is giving way to res communis [13 p. 11*J]

for other marine resources as well. There is no question

of whether the deep ocean will be exploited for resources,

82

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i.e., mining, energy generation, transportation, but when
and under what rules. The legal facet of the problem Is
complicated by the fact that the most likely enterpreneurs
seeking commercial exploitation of deep sea resources will
be large multinational corporations due to the sheer magni-
tude of expense and technology required to extract resources
far from shore. These organizations owe no allegiance to
any one nation's laws and will be much stronger financially
than many "sovereign" states.

An evaluation of the management of high sea resources
by the international regime must include an evaluation of the
quantity and diversity of resources that would either be
permissible, feasible or profitable under that system. To
predict which marine resources will be exploited greatly
in the future, each resource must be examined as to its
potential value, location in the ocean and methods of extrac-
tion. Petroleum, for example, is a crucial resource for
any industrialized state. It has proven to be much easier
and more fruitful to drill and extract it in shallower water
than far out on the continental shelf. Quantities of fossil
fuels that are more than adequate to the needs of most
nations for the rest of this century quite possibly lie
in the sediments of the shelf within their present national
jurisdiction (Figure 9) [71* p. 603, 63 p. 301, 28]. Thus
it may be impractical to exploit petroleum far out at sea.

Manganese nodules have been greatly overplayed as to
their importance. Extensive mining of them may only serve

83

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to drive down the world market price for manganese, nickel,
cobolt and even copper [25 p. 20, 36 pp. 386 and 399 to ^16,
63 p. 409] to levels that make it unprofitable to mine the
nodules at all.

It is shown by marine geologic study that the most
lucrative areas for other mineral resources are also in
shallow waters and most likely to be under the exclusive
jurisdiction of the coastal state (Figure 10). Although
some fish resources are distributed in areas far from
coastal regions (Figure 11), marine biologic studies have
shown that the primary links in the food chain are concen-
trated in near shore areas (Figure 12). If the harvesting
of phytoplankton or zooplankton is undertaken, the coastal
state is again in a position to control the greatest areas
of the resource. All this indicates that with any extension
of coastal state jurisdiction to resources beyond 12 nautical
miles or the 200 meter isobath, the international regime may
be left with very little of the potential value of world
ocean resources.

In the case of some resources, international regulation
and taxation may act to discourage deep water exploitation,
while in other casts it may provide the stability an investor
demands and the incentive the international community needs
to be involved in the direct exploitation of marine resources,
An international marine regime may otherwise find itself
unable to compete with private industry or national programs.
The international regime, however', could find it lucrative to

85

Figure 10. Potential Resources Off the Eastern Seaboard
of the United States

O'po... ©^" O"

I {_,) 1 Billions o( pounds of fishery products (live weight] P .' ~1 Very low animal protein intake
l~ I Major fishery resources | 1 Low animal protein intake

Figure 11. Annual Fishery Catch, Resources, and Areas of
Protein Deficiency, 1968

86

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develop and manage on the high seas floating environmental
prediction stations, research platforms, navigational
devices and rescue vehicles, investments that most nations
singly could not justify.

The establishment of any type of exclusive economic zone
beyond the territorial sea [11 p. 2] will also limit the
ultimate value of deep sea resources available to inter-
national control. In proposals so far, including the U.S.
1973 draft treaty articles, entitled "The Rights and Duties
of States in the Coastal Seabed Economic Area," the Santo
Domingo, Yauonde and Kenya Declarations of 1972; the juris-
diction of the coastal state in this zone has not included
any interference with the high seas rights of navigation or
overflight and other activities not forbidden by international
law [4 p. 4, 65 p. 401]. The United States' concept of the
economic zone as a trusteeship administered by the coastal
state provides for a revenue tax of from 50% to 66 2/3% on
all resources exploited therein. These funds are to be used
in aiding the developing countries [4 p. 14]. While the
economic zone would be most valuable to the coastal states
and the trusteeship alternative a practical means of sharing
the common heritage of mankind with developing states, these
extensions of resource jurisdiction is felt by many, including
the military, to be creeping acquisition [34 p. 152]. The
U.S. Navy could potentially be faced with the same problems
with the economic or trusteeship zone as it would face with
an extensive territorial sea.

88

Any disagreement or competition in exploiting the
resources of the seas beyond national jurisdiction will
involve navies. Competing claims to ocean fish have often
led to international conflict, as the British Navy has
experienced in recent years off Iceland [5 p. 12']. The
identification of a mineral resource on the bottom of the
high seas could also easily result in the congregation of
several competitors [21 p. 35]. To protect far flung deep
sea mining stations or oil rig platforms from possible
harassment or sabotage would involve great flexibility in
the character of naval operations. Presently there are over
21,000 structures involved in oil and gas recovery in the
Gulf of Mexico alone [31 p. 38]. Submerged continental
shelf installations and pipelines would also pose a formi-
dable defense and policing problem for national navies.
With an effective international regime this might not be as
necessary, but sovereign states do have now the right to
control and protect marine activities under their flag or
nationality, including resource installations [15 p. 42,
65 p. 399]. Even where the U.S. Navy may consider an area
of the world unimportant from a purely military point of
view, it may have to devote its attention to that area due
to the value of marine resources there [50 p. 4]. In the
future many structures for the exploitation, transportation
or storage of natural resources will be on the seabed [9 p. 20]
These are certain to lead to a conflict of use in the water
volume that most likely will result In resource activities

89

being given the privileged status. The Netherlands North
Seas Installations Act of 1964 took this one step further
when it unilaterally extended criminal jurisdiction to all
sea installations erected on the continental shelf outside
of territorial water [21 p. 38].

The U.S. Navy will also be indirectly affected by the
outcome of this issue by the fact that its operations are
heavily dependent on adequate supply of most of the seventy
odd strategic materials, most of which can be found in the
sea. Without a sufficient supply of these materials, the
Navy would have to find other means to carry out its mission,
At best technology would again be called upon to fill a
critical need, as during World War II, when the lack of
natural rubber forced the rapid development of the synthetic,
At worst a reduced operational capability or alteration of
strategy might also be required.

For the United States as well as the Navy, petroleum is
likely to remain for the next 20 years the most valuable
mineral resource available from the marine environment.
With the exception of the nuclear submarine fleet and 11
surface ships, including three aircraft carriers [22], all
U.S. Naval vessels and aircraft are propelled by some form
of fossil fuel. Without imported or marine sources of oil,
the U.S. Navy would have to compete with all other domestic
users for the nations' known land reserves of 38 billion
barrels, 4.5 billion barrels of which is estimated to be in
Naval Petroleum Reserve #4 in Alaska [6l pp. 208 to 212].

90

( \

Even if a major transition is made afloat to a nuclear
powered force, aircraft will still no doubt, be dependent
on fossil fuels. Recent seismic profiling by Dr. Grantz
of the U.S.C.G.S. on the Alaskan Chukchi shelf indicates the
presence of geocynclines most indicative of petroleum
deposits [28]. The discovery of anything on the order of
magnitude of hundreds of billions of barrels [6l p. 212] in
these shallow waters would allow the United States and the
Navy the independence and security it desires to get through
the petroleum age.

International regulation of all high seas' resources
appears imperative. A standard of exploitability as the only
criterion for resource claims on the high seas is inadequate.
Increasing proliferation and variance of national standards
for marine resource extraction will prove useless in main-
taining a peaceful and equitable ocean order. International
regulation over the deep sea resources and competing demands
for exclusive national resource domains are both increasingly
likely in the future. For the United States, a minimum of
national jurisdiction over coastal resources and the regula-
tion of the deep sea resources by an international authority
would be most advantageous because American enterprise is
most capable of exploiting marine resources world wide. The
U.S. Navy would also be better served by a minimum extension
of coastal states' exclusive controls beyond the territorial
sea. International regulation of resources also promises the

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best opportunity for settlement of conflicts before the
resort to violence involves the use of sea forces.

G. SPECTRUM 6: MARINE POLLUTION

A basic tenet of national defense is that of protecting
the stat'e against harm or threats to the environment [58
p. 73]. The 1958 Geneva Convention on the High Seas places
the responsibility for the prevention of marine pollution on
the states themselves [13 Article 24, 25; 78 p. 93]. This
has led to an inconsistent growth In national pollution
standards and regulations. Some countries have none, while
some have extensive laws in force, such as the Canadian
Pollution Act of 1970. The first comprehensive international
pollution standards have only recently been promulgated in
treaties (see pollution issue section) and articulated in
international organizations, such as the Intergovernmental
Maritime Consultative Organization, UNESCO's IOC and the
International Atomic Energy Agency [37 Article 111(6)].
Until standards are universally accepted and faithfully
observed by the great majority of ocean users, their value
will be questionable. Naturally, the worst offenders are
often the last to conform. National regulation and enforce-
ment of pollution controls in territorial waters and internal
estuaries and rivers appear to be most important measures
available, because the great bulk of marine pollution
originates and remains in the coastal zone, particularly near
urban areas. Yet, since ocean currents and winds eventually

93

make one nation's pollution every nation's pollution problem,
it is imperative that some international system be respon-
sible for the stimulation and development of international
and national regulations to control polluting activities.
At the minimum, international standards for pollution control
on the high seas should be enforced by each state in their
own waters and aboard ships either under their flag or
nationals. Eutrophication from garbage and sewer dumping,
toxic concentration of chemicals in sea food, massive ero-
sion and silting of coasts and estuaries, and widespread
oil slicks are a few of the more obvious results of national
and international polices that are unresponsive to the harm
or threat of marine pollution. ^- — v

The United States Navy is not only concerned with the
pollution it causes, but also with the harm that pollution
could cause to the Navy's ability to operate effectively.
The mission of the Navy is to protect the interests of the
United States in the marine environment. Unacceptable pollu-
tion of the country's environment by naval activities is in
direct contradiction of that mission. In addition, marine
pollution can cause equipment, ship and human degradation,
jeopardizing safe and efficient naval operations. Many
obvious pollutants from naval vessels have long been identi-
fied. Among them are: spills of oil, paint and chemicals;
discarded equipment, explosives and garbage; and dumped heat
and sewage. Navy directives now require better disposal of
these wastes, but much remains to be done in order to
minimize pollution.

9* '

In recent years radioactive material has increasingly
appeared in the seas as a result of weapons fallout, the
mining and processing of nuclear products, the improper
handling of nuclear wastes and accidental discharges [13
p. 142]. The Nuclear Test Ban Treaty of 1963 and the Nuclear
Non-Proliferation Treaty of 1970 [13 p. 200] have no doubt
helped slow the increase of this marine pollutant, but the
promise of off-shore nuclear power plants and the extensive
use of nuclear powered ships could reverse this trend. The
U.S. Navy alone will have 136 nuclear powered vessels at
the end of a current building program, including 11 surface
ships and one deep submergence research vessel [22], Many
seemingly harmless substances have yet to be recognized as
pollutants. For example, a copper defouling paint used on
Navy ships seemed to be a success until it was discovered
that it was lethal to harbor marine life when a large ship
remained in port [30].

Military organizations and activities have not always
been thrifty in their material usages or adequately con-
cerned with their effects upon the environment. Today, in
time of peace, provisions and efforts must be made to temper
or reverse undesirable side effects. In some instances, the
Navy's access to new technology and funding has led the way
to techniques and programs for pollution abatement and their
application to the private marine community. The Naval
Research Laboratory's "oil herder" is one example [30].
Many projects of the Naval Civil Engineering Laboratory are

95

also directly related to environmental protection. The
Secretary of the Navy in conjunction with the Environmental
Protection Agency and Department of the Interior annually
conducts Navy wide competition to determine those ships and
bases that have contributed most to the preservation of
the environment [17 p. 14].

The pollution problem is used as an argument for justi-
fying the exercise of metropolitan jurisdiction over inter-
national straits and some enforceable, effective regulations
over high sea marine activities in an international court.
Attempts are underway in international negotiations to include
military vessels under pollution control regulations. The
United States has consistently maintained that public vessels
be exempt from any pollution prohibitions, but act in accor-
dance with treaty standards. Since naval vessels only account
for a small part of marine pollution, countries without
large navies might be demanding that warships be included
in any pollution conventions as a means to harass or restrict
the activities of those states with large navies [54 p. 31].
Thus, in order to help secure and maintain freedom to operate
unhindered in international straits and on the high sea,
the U.S. Navy, above all others, must demonstrate its willing-
ness and ability to prevent or counter marine pollution.

Man's increasing activity on and near the oceans and the
concomitant environmental pollution require that higher
international standards become enforceable regulations and
that all nations cooperate for their implementation nationally

96

and internationally. For both the United States and the
U.S. Navy international pollution regulation on the high
seas is desirable, because they stand to lose the most from
a fouled marine environment and indignant governments
unilaterally proclaiming self-serving protective legislation,

H. SPECTRUM 7: THE INTERNATIONAL REGIME

The spectrum extends over four basic forms of inter-
national regime: (1) a vacuum beyond the limits of national
jurisdiction, (2) the division of the entire world ocean
among the coastal states, (3) flag state control of its
own maritime activities on a first come, first served basis
and (4) international governance of the high sea and deep
ocean seabed [55 p. 83]. The solutions on the national to
international jurisdiction spectrum are from left to right
illustrating the evolution from national regimes to an
encompassing international regime over the entire ocean with
regional solutions intermediary along the way.

A world system composed of national regimes might at
first seem to be the most hospitable for a national navy to
operate, especially if those national regimes agreed to a
limited territorial sea and extended only to flag activities
on the high seas. A series of bilateral agreements might
then suffice to allow a worldwide navy, like that of the
United States, a maximum of freedom. However, the ever-
changing, conflicting and overlapping policies of many
nations could make it most difficult for vessels or

97

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organizations to operate, whether in a territorial sea or
on recognized high sea. The myriad of complicated regulations
and disparite claims which would be inherent in a world of
over a hundred competing national regimes would be the most
restrictive to the U.S. Navy in the long run.

A multilateral regime seems preferable to bilateral
arrangements for both the U.S. and Soviet Union [44 p. 785].
Further, multilateral regimes based on regions created by
a common sea, coastline or continent seem to be an expedient
form of transnational ocean management [16 p. 3], but may be
objectionable to excluded states with rights in the area.
A Mediterranean regime [39 PP . 59 to 87] and North Sea
regime have begun action based on national needs respecting
a common sea. A Carribean regime has also been initiated.
After Canada's unilateral pollution initiative in the Arctic,
the United States proposed a nineteen state conference to
discuss common regional problems of the Arctic region [46],
Each of these may serve as examples for other regions fused
by a necessity to meet common, local needs. The United
States Navy already operates in the waters of every potential
regional regime and under this system would have to adapt
its activities to the regulations of each region. At best,
this mosaic of marine legal environments would be costly,
inefficient and hazardous for the world's economy as well as
any worldwide national Navy.

The development of separate regional regimes might not
exclude the possibility of agreements among regions for a

99

more effective and consistent ocean order [41 p. 16].
Obviously, the activities and regulations of regions ought
to be within the framework of general international law,
including custom, and not in conflict with it [39 p. 166].
Thus, an international structure is essential in order not
only to avoid harmful regional discrimination, but to har-
monize desirable regional cooperation with global interests.
A composite of structures might be most easily accepted
by a majority of nations. Each state would have complete
jurisdiction over its territorial seas and within its
continental shelf seabed to the 200 meters isobath, plus
explicitly enumerated privileges in an established economic
zone. Several regional regimes might manage or exercise
regulatory authority over deep ocean and seabed resources,
pollution and navigation, but without denying other states
their otherwise inherent rights. These regimes might handle
truly regional problems that may arise, subject to the over-
sight of global international agencies. At a minimum, the
global agencies or a world regime could coordinate the
activities of the regions and set worldwide standards.
Although offering advantages over exclusively national solu-
tions, the regional regimes cannot fulfill the need for
worldwide solutions. If regionalism hastens the emergence
of a global regime they will serve a great purpose. If they
become obstacles to transit and trade, they will have to be
reduced or subsumed by a world ocean regime, for the ocean
is an indivisible whole.

100

An effective, centralized international regime for the
world ocean has stimulated much imaginative thought in modern
international law. The world ocean regime, perhaps an
autonomous, specialized agency of the United Nations, could
be the common thread that ties together otherwise partial
solutions to each of the other ocean issues. Diverse inter-
national agencies have been established to coordinate or
even govern a special sector of activities, such as mail
handling and human health or monetary policy and develop-
mental loans. These organizations are created and limited
by the common needs and respective interests of the national
participants. It is then apparent that too specialized an
agency or even a coterie of little agencies cannot cope with
problems of such magnitude as found on the world's oceans.
Agencies like the IOC, IMCO and Food and Agriculture Organi-
zation of the United Nations are insufficient to constitute
a global regime for the ocean [25 p. 84]. The international
regime must have the capability to influence the conservation
development, transit and security of the world's ocean
resources [9 p. 28]. Since the regime will have a better
chance of success in pollution control, conservation and
marine safety, it should probably first emphasize those
goals [39 p. 17*0 • A truly international regime could
guarantee universal recognition of license and lawful
privileges as well as provide common regulation and
monitoring of all marine activity. However, the world

101

regime must not ignore the possible importance of military
activities or leave them out of its purview [9 p. 3].

Because of the unique nature and size of its tasks,
this marine authority will most likely be based on new
precepts, alien to conventional governing bodies. New
divisions of power and modes of decision making must be
explored. Traditional procedures even within national
states sometimes do not suffice to govern disparite groups.
In order to create a community of interest among "sovereign"
states and the many groups on the globe making up a signi-
ficant sector of human economic life, untraditional institu-
tions will be needed. Elizabeth Mann Borgese has described
one fresh approach for the international organization of the
oeean. Her ideas and those like it place emphasis on the
functional aspects of the ocean rather than the geographic
divisions. The Borgese quadripartite plan provides repre-
sentation to a Maritime Commission, Assembly and Court. The
latter would "ensure the rule of law in the interpretation
and application of the law of the seas" [93.

Military organization may have analogies for the new
ocean regime. It might prove administratively easier for
national navies to cooperate with this new form of ocean
governance than to work bilaterally with numerous national
agencies. National marine organizations in general should
ordinarily find it easier to deal with an impartial inter-
national seabed regime than to deal bilaterally [3*1 p. 1523.
An international regime would be a more consistent, reliable

102

and acceptable system under which to operate a sea force.
Armed Forces would be In a more familiar setting operating
within the encompassing and binding order of a single ocean
authority than one characterized by the assertion of separate
national sovereignties.

The United States government with the full support of the
Department of Defense has backed the establishment of a
generous and strong international regime [3*1 p. 153] because
each have much to gain from a stable ocean order. Some
maritime and naval countries, including the Soviet Union
[27 p. 6] oppose such a regime, seeing in it a potential
threat to state jurisdiction on the high seas. This opposi-
tion may delay the inevitable transition from the nation-
state system and regional arrangements to the first opera-
tional experiment in world management, the international
ocean regime.

103

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V. THE PRESENT AND POTENTIAL DUAL ROLES OF THE
U.S. NAVY IN A FUTURE OCEAN REGIME

No matter where solutions may fall on the preceding
spectra, it appears certain that present trends among
nations are not producing worldwide disarmament and that the
use of the oceans by military forces will continue [1 p. 13]
This likelihood makes it imperative that the future inter-
national ocean regime include provisions for the peaceful
use of national military forces, that is, stipulating
impermissable activities and the enforcement of such pro-
hibitions, while leaving the rest as free and legitimate
under conditions of peace.

The future seems clear: the U.S. and USSR will continue
their exercise in balancing military capabilities, each
knowing that too much or too little military power may
encourage the enmity of potential enemies [49 p. 219]. The
large naval maritime oriented states meanwhile will tend to
extend their ocean policy objectives beyond those of trade,
transit, communications, fishing and national security to
include new capabilities of exploiting vast marine resources
and acquiring greater political influence [32 p. 24]. Many
states will add to their marine inventories such equipment
as unmanned underwater vehicles, surface and midwater buoys
of all types, submersible aircraft carriers and tankers,
high speed surface effect vehicles, deeper and faster sub-
marines, manned underwater habitats and floating midocean

105

bases [2 pp. 83 to 90]. There will also be other vehicles
and devices not yet conceived. Although general war appears
more and more unlikely between the major world navies,
limited wars among smaller naval powers remain a distinct
possibility [2 p. 84], The changes in the methods of
military operations as a result of technology [50 p. 7] will
increase greatly the relative strength of small navies [2
p. 83]. Their future marine inventories will include
numerous small submarines, highly armed missile patrol boats
and prolific acoustical systems, all primarily for use in
the nationally dominated coastal zone.

A new form of force to be reckoned with by states and
the international ocean authorities is that of terrorists.
Even now small militant organizations are violating the
rights and taking the lives of civilians of all nationalities,
including businessmen, athletes , airline passengers and
diplomats [7 p. 4], Anonymous warfare and international
blackmail are made easier with today's technology. For
example, artificial tsunamies in coastal waters and seiches
in estuaries could be initiated by well-placed underwater
explosions [2 p. 90], Nuclear or conventional mines could
secretly be sown in restricted waters and triggered by
telemetry [49 p. 206]. Even a nuclear sea force cannot
defend with 100$ confidence an off-shore nuclear reactor
against sabotage by guerrillas . [7 p. 8], Pressure and coer-
cion by militant bands and fanatical groups against many
sectors of society appears to be growing and reaching out

106

to threaten the macro-economy and very notion of inter-
national community. Clearly, marine resource exploitation
could be seriously affected by excessive violence. A sense
of solidarity and economic sense must prevail among interest
groups as well as governments if peace and security are
to be achieved.

The promise of macro-technology, such as weather modifi-
cation and geophysical warfare will also require some form
of international monitoring and governance, if it is not
to threaten peace [7 pp. 6 to 14],

In order to be effective, then, any international ocean
regime must be given operational functions as the basis of
its authority over 140 million square miles of ocean. A
system of maritime satellites [10 p. 15] and buoys to monitor
the seas, now being considered by IMCO , is a desirable exam-
ple. Its operation would not likely expose significant
national secrets of legitimate military forces [10 p. 45].
One such project is already in operation. The first Earth
Resources Technology Satellite (ERTS) included the partici-
pation of thirty-seven nations and two United Nations agen-
cies. The data, which are useful for resource research,
safe navigation and monitoring pollution, are entirely in
the public domain [10 p. 14], This project suggests to
many that in the future all ocean activities can be routinely
monitored by an international consortium. This capability
might at least encompass traffic control, search and rescue
and pollution monitoring [35 p. 665]. In addition to

107

conducting passive sensing, and perhaps international peace-
keeping observation, future international ocean authority
might establish an "ocean guard" prepared to assist any
ocean users to cope with natural disasters or man's unlawful
transgressions [75 p. 3]. The Intergovernmental Sea Service
(ISS) envisioned by Ambassador Pardo of Malta would create
such a "guard" by contracting with participating states to
loan men, equipment and vessels, Including those of the
military, for international use [39 p. 185]. The IOC has
established a precedent by utilizing volunteered national
vessels and research equipment for most of its activities
[39 P. 195]. If an international sea guard were to be used
for monitoring all naval activity, it would have to obtain
the cooperation of the most advanced navies to ensure that
the "guard" functions at a high technical level [18 p. 86].
In return, the ISS would contribute to the accomplishment
of every national navy's first legitimate mission: keeping
sealanes secure for peaceful maritime use. Additionally,
the ISS's civil and military sources throughout the world's
oceans would normally provide national navies with rapid
and important assistance for navigation, safety, rescue
and environmental information [49 p. 213].

Thus, it seems advantageous that national navies, inclu-
ding that of the U.S., participate actively in a new ocean
order. The role of navies as tools of national policy and
international diplomacy is well recognized. As long as
world politics are conducted primarily by nation states and

108 , x

their governments have conflicting interests, those tools
will be maintained. Acting to fulfill their responsibilities,
national navies cannot remain apart from successive steps
in the international process leading to the reformation of
the international ocean regime with one or more global organi-
zations. However, these powerful and expensive forces are
themselves contributors to an international regime of the
world ocean and most, if not all, would benefit from a stable
and viable Law of the Sea. The role of navies as tools
of peace and order ought, consequently, to be cultivated.
This role involves the extension of naval functions from
those of offensive and defensive sea forces to providing
civil-oriented services and assisting with ocean management
[39 P. 168]. Herein is the dual purpose agent [7 p. 2].

Respecting the marine environment, the navies, in parti-
cular the worldwide and highly technical navies, can be
employed by their governments to support any new ocean
regime. Navies can readily provide the monitoring, policing,
administrative, technical and research capabilities needed
to manage such a vast domain as the world's oceans. All
navies have the men, ships, materials, technology and experi-
ence to participate at once in the dual roles of peacekeeper
and peacebuilder . The United States Coast Guard is an excel-
lent example of a sea force with dual roles: the primary
one is that of a law enforcement and maritime services
agency; the secondary role is that of providing a combat
capability whenever needed. The present capabilities and

109

future plans of the Coast Guard lend themselves perfectly
to the support of both national coastal and international
ocean regimes. However, the Coast Guard and the equivalent
services abroad are limited greatly in terms of manpower,
finances and equipment and could not unaided carry out
management and patrol tasks for an ocean regime all over
the globe. Together the U.S. Coast Guard and Navy could
form an efficient team, with the former having precedent
in near shore activities and the latter precedent in the deep
ocean and distant activities. By comparison to civil agen-
cies, national navies are a bank of valuable assets capable
of profitable investment in an ocean regime .

The use of the military for dual roles is not an untried
concept. Many countries, particularly the less developed,
have learned to use their military forces extensively in
peacetime for a variety of civil projects. Most do it of
necessity, making best use of capabilities of the military
service and unable to afford the costs of ready forces in
peacetime. In the United States as well, the Army Corps
of Engineers has a long history of civic action, while
other military units provide medical assistance for safety,
traffic education, youth camps and vocational housing
renewal .

The United States Navy has always been active in a
dual role capacity adding oceanographic research and marine
technology to their combat readiness. The Navy sponsored
many early oceanographic expeditions, such as that of Lt .

110

Charles Wilkes to the Pacific In 1838. Today's U.S. Naval
Observatory and Hydrographlc Office was established in 1830
as the Department of Charts and Instruments [74 p. 297].
In 1915, the Navy stimulated the creation of the National
Advisory Committee for Aeronautics [35 p. 653]. Since World
War II the U.S. Navy is the greatest naval power in history
with a diverse fleet that currently includes 145 submarines,
over 300 destroyers and at least 15 carriers [29 p. 183].
In 1973 the Navy's oceanographic budget of some 250 million
dollars accounted for 38$ of the federal budget for the
marine sciences, although, this was much reduced from the
high of 58$ in 1969 [75 p. 123]. Less than 25% of this
marine science budget was used directly for national security
[56 p. 15]. The rest of the Department of Defense also con-
ducts a substantial portion of the oceanographic research
for the benefit of the nation [56 p. 159].

As previously mentioned, the U.S. Navy has accepted
responsibility as the government's leader in ocean technology
[74 p. 308], especially for the deep ocean. All government
agencies and oceanographic research centers are able to
use naval facilities when they are available. Moreover,
the opportunity for civil applications of ocean technologies
is often identified from experience with defense projects
[20 p. 7]. The continuing Navy program in geodesy and
mapping serves all mariners, because all such data are
disseminated through the National Oceanographic Data Center
[65 p. 170]. Cooperative field surveys are also conducted

111 t X

between the Navy, U.S. Geological Administration (USGA) and
the U.S. Coast Guard [56 p. 172]. In the 1950's the Navy
began new projects with a decided civil relevance, namely:
a sea-ice forecasting system; Project Magnet for a worldwide
geomagnetic survey; a Texas Tower placed off Cape Cod for
environmental studies; the Optimum Track Ship Routing Program;
and participation in the polar oceanographic studies of the
International Geophysical Year (IGY) [74 p. 298]. In 1966
the Naval Oceanographic Office inaugurated a marine sonar
prediction system called the Antisubmarine Warfare Environ-
mental Prediction System (ASWEPS) [56 p. 168]. The forecasts
include data useful to the civilian community, such that
the Bureau of Commercial Fisheries uses ASWEPS to optimize
and manage fisheries [Jk p. 308].

Recently, Navy efforts have been directed towards the
study of comprehensive acoustic and satellite marine naviga-
tion systems; ship material development; and the detection
of underwater nuclear explosions. This latter system pro-
vides extensive seismic data for earthquake research, illus-
trating how difficult it is to separate the military and
non-military uses of any scientific research [56 p. 171].
Besides having almost thirty major oceanographic vessels
[56 p. 257], the U.S. Navy has launched a nuclear powered
research submarine, developed an undersea recovery system
using Deep Submergence Rescue Vehicles (DSRV) and established
a Large Object Salvage System (LOSS [56 pp. 17I4 to 176].
The Navy's man in the sea program has been highlighted

112

by the SEALAB experiments, which have maintained large
groups of men and a few women in deep ocean habitats for
long periods of time [21 p. 36]. Several types of high
speed surface craft are being tested by the Navy [17] ,
including a 35 ton hydroskimmer built for amphibious opera-
tion [56 p. 171]. Of course, the Navy has other platforms
suited to scientific research and policing activities such
as fixed winged aircraft, helicopters, buoys, spacecraft
and ice islands [7^ p. 30*1]. The overlapping capabilities
of these platforms also afford the kind of system needed
by an international authority to detect, for example, oil
discharge from a ship on the high seas at night [78 p. 96].

Internationally, the U.S. Navy is actively participating
in the International Hydrographic Bureau and cooperative
oceanographic studies, such as the Indian Ocean Expedition
[33 P- 47]. It is conducting extensive ocean surveys in
conjunction with the United Nations Economic Commission for
Asia and the Far East (ECAFE) which also serve defense pur-
poses [56 p. 173]. The U.S. Navy educates foreign nationals
in marine science programs and, upon the request of foreign
governments, volunteers its services for specific research
tasks [74 p. 307]. Since World War II, multinational task
forces have become commonplace under NATO, UNESCO and ad
hoc sponsorship of scientifically oriented groups. But
one first for which the U.S. Navy has reason for particular
pride is the mixed manning of a modern sophisticated warship,

113

the USS Rlcketts with nations from six NATO countries,
responsive to a proposal of President Kennedy.

The above-mentioned contributions to the peaceful and
orderly use of the oceans are not well known, while the
U.S. Navy is often criticized for not contributing more to
the civilian community in the way of social, scientific and
economic benefits from naval technology and research [49
p. 219]. Actually more than 90% of basic scientific data of
all types gathered by the Navy are unclassified and avail-
able to any legitimate user [74 p. 307]. Most data gathered
by civilians are obtained under contracts provided by the
Office of Naval Research (ONR) . The second order effects
from the production and maintenance of naval equipment and
vessels are diffused throughout the nations' economic system
[7 p. 10], National defense may thus contribute to the
resource creating ability of the nation and its people
[35 P. 657].

Cultivation of a peacetime, creative and productive role
does not imply that the U.S. Navy or any other naval service
sacrifice its priorities or capabilities as a peacekeeping,
combative force. The dual roles concept does arise from
the realization that the naval mission to keep the peace and
promote the nations' interests can best be achieved by
making the optimal use of its men, equipment and organization
in times of peace or war. This concept requires an expansion
of the peacebuilding role. Any newly acquired functions,
however, must avoid the weakening of the peacekeeping sea

114

force role, which remains essential to the achievement or
preservation of maritime peace and peacebuilding power
[69 P. 12].

In this era which is "beyond peace and war" [7], the
United States Navy must learn to achieve or preserve its
effectiveness under new conditions. The need today and
tomorrow for a strong Navy may not be as obvious as it was
in past periods of tension and conflict] the nations'
political and financial commitment to a sea force may wane.
The smaller Navy that may result will require a review of
all naval roles [64 p. 146]. Further success with the
Strategic Arms Limitation Talks would place upon the Navy
even greater responsibilities for the maintenance of America's
nuclear deterrent. Even mutual balanced force reductions
would leave the Navy a heavier role in order to deter more
conventional violence. For the United States, rapid response
capabilities and useable political-military power demands
sustainable ocean passage and adequate local control of the
high sea [29 p. 183]. Small diverse ships useful to many
types of missions will be needed by the U.S. Navy, not least
to show the flag and counter international threats to the
peace or unlawful terrorist operations [64 p. 150]. Such
vessels, which are the most numerous elements in probably
all national navies, lend themselves perfectly to the duties
of dual roles.

The burden of added responsibilities usually implies
added funding. The U.S. Navy should commit itself to the

115

dual roles concept and advocate Its Implementation. Some
newly acquired systems may add little or nothing to the
combative role, but the acquisition of other new equipment
for peacebuilding will be useful or essential for peace-
keeping. Most of this equipment the Navy would like to acquire
anyway [6H p. 1^7]. However, the development of capabilities
for the conduct of dual roles should not be an excuse to
increase the Navy for the sake of maximizing the naval
combative force. Rather it should be an opportunity to
optimize the benefits obtainable from the Service through
utilization of its men and other resources to the fullest
potential to contribute either to defense or detente. Hope-
fully, initiatives by the U.S. Navy supporting the concept
and functional operations of an international ocean authority
will help justify an adequate allocation for defense capa-
bilities as well as the developmental and service activities.
The promise of both economic and security dividends from
the national tax dollar responds to the public need and
desire for more beneficial and relevant use of the nation's
resources .

Does the Navy need the commitment to dual roles? The
expanded activity inherent in the concept of dual roles
would not so much make the Navy an oversized Coast Guard
as allow the naval establishment greater means and freedom
to accomplish the objectives of national security for U.S.
citizens and activities on the high seas. The Navy needs
the authority of world law and multilateral institutions for

116

problem solving in order to help manage what it is supposed
to preserve and protect. The nation's right to ship oil
through an international strait or to mine manganese nodules
in the deep ocean ultimately depends upon the same rights
being afforded all nations. Clearly, multilateral monitoring
of such flag activities and enforcement of established
rules is to be preferred to singular national efforts. Only
an international organization having the backing of the U.S.
Navy, among others could do this effectively for the commun-
ity of nations. All world navies can provide examples of
high standards of conduct and navigation as well as abilities
in scientific research and development of new technologies.
Public vessels and governmental activities need not be
excluded from ocean treaties. Strict national enforcement
of international laws may be subject to the international
regimes comments in multinational forums or complaints in
an international tribunal. The U.S. Ocean Dumping Act
points in this direction [5^ p. 27].

National navies and an effective international regime
can be compatible on the world's oceans. Nevertheless, the
Outer Space Treaty, Antarctica Treaty, Non-Proliferation
Treaty, Test Ban Treaty and Seabed Disarmament Treaty have
put bounds on the military activities of the world's nations.
Each of these agreements was facilitated by competing tech-
nologies that made it advantageous for each nation to limit
its activities. These treaties alone will not stop increasing
militarization of the oceans.. A credible ocean regime would

117

help to do so. The world's navies, however, must be given

the opportunity to participate in the work of the international

ocean regime.

In summary, the U.S. Navy and all navies can participate
in the successful solution to each of the seven issues
examined here. National security and peaceful use of the
seas can be better achieved if all national navies contribute
peacekeeping forces to the international regime, aid in
monitoring ocean activities and exchange selected information.
This should lessen the need for a broad territorial sea if
navies can insure the treaty rights of nations on the high
seas. The third issue might more easily be concluded if
national navies by' their mutual interest and persuasion can
guarantee the rights and needs of all nations with regards
to the international straits. Mutual enforcement, exchange
of information and sharing of technology by national sea
forces can help ensure equitable exploitation and preserva-
tion of marine resources. Worldwide reporting and centralized
data banks supported by advanced navies like that of the
United States can spread valuable information to all ocean
users. The pollution issue would also be aided by joint
monitoring and cooperative enforcement . The International
Regime to manage the common heritage of mankind must have
an at sea capability, particularly in its infancy. That
capability could quickly and logically be provided by
national navies. By its nature, the U.S. Navy should be
one of the leaders in that task.

118

VI. CONCLUSIONS

A. THE INTERNATIONAL SOLUTION

The legal order governing the use of ocean space for
centuries has been gradually and progressively moving towards
a more structured and multilateral environment. The present
regime is already crumbling. In order to meet present and
future needs of users of the world's oceans, the greatest
forward step, yet, is required of governments and other
interests: the creation of a multipurpose international
organization to manage the common heritage afforded by the
sea. Technology, economics and politics have strained the
laws created to ensure the ocean's orderly and efficient
use. Effective laws today appear certain to be outmoded
tomorrow. The speed by which technology and economics render
laws obsolete is also increasing; it took hundreds of years
to invalidate the concept of non-possession as the basis of
the freedom of the seas. It took less than ten years to
prove the 1958 Conventions on the Law of the Sea lacking
in realism. Their studious approach was valuable to modern
maritime law, but little accommodation was provided for the
foreseeable changes that would result from science, tech-
nology, economics and politics [16 p. 6]. Better, more
scientific, evaluation of marine resources would have sug-
gested more realistic solutions for ultimate jurisdictional
boundaries, and would have required unhampered marine research,
wherever openly conducted with participation available to

119

the coastal state. From yesterday's science fiction are
envisioned today's plans for submarine freighters, trans-
ocean pipelines, deep sea drilling and mining, underwater
manned installations and artificial floating islands. In
the future, the scientist must be elevated to equal status
with the lawyer In examining the desirability and second
order consequences of new maritime law [33 p. ^5].

The international community is now working desperately
to bring the Law of the Sea up to date and, hopefully beyond.
The United Nations Law of the Sea Conference, organized in
December, 1973 and reconvening in July, 197^, seems destined
to be either Man's greatest collective achievement or one
of his most serious failures. At least two unsatisfactory
scenarios can be projected for the Conference. First, the
coastal states, forming a majority, might force the adoption
of treaty articles that surrender much of the oceans to
national jurisdiction, whether as territorial sea or economic
zone. Alternatively, widespread disagreement among blocks
of maritime, shelf-rich, shelf-poor and landlocked states
as well as coastal and global naval powers could produce a
deadlocked conference, inviting by default unilateral claims
to the common heritage [A8]. Hopefully, a compromise will
be found between demands for broader jurisdictional boundaries
and the aspirations for specific economic benefits from the
seas [16 p. 53. Developing nations, for example, want fish
and/or protein and may be willing to grant the national
security demands of the global naval powers In exchange for

120

access to such a resource [3]« In order to arrive at a

broad consensus for treaty articles, a basic compromise must

be reached between states favoring modest marine boundaries

and those desiring more marine resources. What would

constitute a broadly supported set of principles which would

avoid both a surrender of the "common heritage" and conference

stalemate?

A consensus of the international community seems to be

forming behind the following set of guiding principles:

Maximum limit of 12 miles for breadth of the
territorial sea.

'Adequate guarantees' of transit in straits used for
international navigation.

'Broad coastal state control' over seabed & living
resources beyond the territorial sea, with
'provision for the interests of other states & the
international community in general.'

'A balancing of coastal state & international
community interests' on the questions of scientific
research and protection of the marine environment.

'An international regime & machinery' (UN terminology
for a new international organization) for the deep
seabed which will 'accommodate' consumer interests
and exploiter interests to 'the desire for machinery
with comprehensive powers.' [11 p. 2]

The general acceptance of these principles, however, would

not guarantee a successful outcome of the Sea Conference;

some provision must be made for adaptation and change to any

new circumstances by a continuing, law-making or regulatory

agency. At the worst an ocean regime could be", built upon a

series of treaties that only stipulate what most nations do

not want to do anyway.

121

B. INTERNATIONAL OCEAN SECURITY

Whether the government of a state holds national security
or natural resources as its paramount ocean interest, it
must' acknowledge the need for some form or forms of authority
to support any peaceful and secure ocean regime. Likewise,
the ocean regime must accept the legitimate, that is, peace-
ful or internationally lawful, use of national sea forces on
the world ocean. Without security by either deterrence or
enforcement, there would be no law [2 p. 96]. Yet, national
security and international peace are opposite sides of the
same problem, and its outcome is produced by both national
and international forces, civil and military, interacting
either cooperatively or hostiley. While the oceans will be
neither demilitarized nor denuclearized [2 p. 100] during
the next twenty years, national navies can and should be
given peaceful, constructive roles by both national maritime
and global ocean authorities. The cumulative manpower,
equipment and experience of cooperating national sea forces
can provide practical and expedient means for ocean security
through their monitoring and policing of ocean activity. It
is concluded that while any new ocean legal and institutional
regime will affect all national navies, the navies will share
and ultimately determine what this new environment will be.
The future will be brighter for man and more secure for ocean
passage, exploration, resource exploitation and conservation
when the international ocean regime encourages peaceful uses
and associates national navies in its multinational operations.

122

C. THE NATIONAL SOLUTION OF THE UNITED STATES

The United States Navy, due to its diversity of
activities and widespread operating areas, will be the most
affected by any marine regime as it evolves. It is impera-
tive that the U.S. Navy contribute significantly to the
formulation and implementation of national policies for the
Law of the Sea. This means not just concentrating on issues
that affect military mobility [3^ p. 165] but on all the
issues that will ultimately affect the usage and security of
the ocean, which are the reasons for the Navy. The Navy must
avoid jeopardizing national needs on the security issue in
order to gain a short lived or low value victory on another
issue; it must also place national interest above naval
interests. Conceding extensive economic rights to coastal
nations in exchange for a right to transit submerged through
international straits would be an example of sacrificing a
major goal for a tactical advantage.

All American marine actors, including the Navy, must be
ready to adapt to any ocean legal order to which the U.S.
government becomes a party. However, for the seven issues
examined in this thesis, there appears to be a solution that
is best for both the Navy and the country as a whole .
These solutions do not conflict with the most recent ocean
policy statements of the government [57 p. 826; 65; 66].
These policies include:

A maximum territorial sea of 12 nautical miles;

Free transit through and over international straits;

123

Economic rights of coastal states beyond the territorial
with 200 nm the furthest conceivable extension of such
rights ;

Recognition of the deep ocean seabed beyond national
jurisdiction as the common heritage of mankind;

International regulation of pollution standards;

The maximum freedom of scientific research;

The establishment of an international ocean regime to
regulate and monitor activities on the high seas,
collect revenue from and for the international
community and provide for the compulsory settlement
of disputes.

These policies are a responsible attempt to provide for
all nations a desirable ocean order. The United States
cannot expect its proposals to be accepted without change or
trade-offs among issues. But others of the international
community should recognize that the U.S. is strong enough to
preserve what it perceives as its rights in the ocean without
any broadly accepted ocean conventions [2 p. 92].

Why would the United States or any large naval power
subject itself to new international Laws of the Sea which
are more restrictive as to national practices or as to
sharing internationally what its nationals can do alone?
That raises a second question: could the United States and
a few other major or strategically located powers establish
and enforce throughout the world their own ocean laws? In
this age of global everything; communication, transportation,
technology, social movements and ideas, most nations are
wrapped in an Interdependent web, such that forceful coercion
or gunboat diplomacy is not likely to be politically successful

124

or militariliy efficient. Thus, law ought to be built on
mutual consent, reciprocal deterrence and restraint. It is
in the longer term interest of the United States to enter
into negotiations within the United Nations system for an
agreed Law of the Sea. An exhaustive attempt to reach,
constructive yet compromise solutions must be pursued before
seeking alternatives. The United States is making the effort
to create with the other nations a new ocean order not
because it lacks the power to defend its traditional rights
on the sea," but because its best interests are advanced and
secured through a world of lav/, international cooperation
and rational management of change. Moreover, the United
States, more than any society, has the influence and
confidence to lead a sufficient number of other states so
that, together, they could create a new and desirable ocean
regime and international community. No nation can be expected
to support an ocean regime that is thought to deny that nation
a vital need or right. However, of all present 150 states,
the United States has the most to gain from a widely accepted
regime. Similarly, the nation stands to lose greatly from a
chaotic legal and economic disorder, military conflict at sea
and/or significant non-participation in an international
regime .

Regardless of the outcomes at the UN Conference on the
Law of the Sea, America's ocean oriented organizations and,
in particular, the Navy and Coast Guard will certainly be
more "involved" through a diversity of roles. But, if

125.

Conference results are as the author here anticipates and a
multinational ocean authority emerges, the Navy will find
everywhere new opportunities of value even as it pursues
old missions through, and in parallel with, the new
arrangements .

Individuals performing important ocean related roles in
the future will need to become increasingly familiar with
the Law of the Sea as its norms, agencies and subsidiary
regulations become more pervasive and intricate. It would
be helpful to everyone if the nation's fishermen were more
cognizant of the marine legal environment. Maritime activi-
ties will routinely require the ad hoc cooperation of teams
with expertise in ocean policy, maritime law, economics,
industry, science and numerous technologies . [74 p. 306],
In particular, naval officers eligible for command at sea
as well as marine scientists should receive formal education
in international maritime law and ocean policy studies. The
Navy has already gained significantly from the education of
officers as oceanography specialists, "...because they
understand the aims and language of both the civilian
scientist and the naval officer and can help ensure that the
former's efforts are geared to the special needs of the
Navy." [7^ p. 305]. The Navy would benefit no less from
educating officers as Law of the Sea specialists and ocean
policy advisors able to assist, inform or counsel statesmen,
industrialists, scientists and higher military authorities.
These officers should not only come from the Judge Advocate

126

General Corps and Naval Oceanographers , but from the general
line. For example, the U.S. Naval Postgraduate School should
provide within the Oceanography curriculum for the Master's
degree at least one required course on the Law of the Sea and
U.S. ocean policy, with additional electives available to
those desiring a minor in the field. Other selected officers
should be given advanced education in ocean policy studies
and international maritime law with some requirements in
oceanography. Among these officers should be those who may
have the opportunity to command naval activities at sea.

D. AN OVERALL COMPARISON OF POSITIONS ON THE SPECTRA

The Individual scale of each of the seven separately
presented spectrums treated in Section IV do not lend them-
selves easily to comparison. The second scales ranging from
national to international jurisdiction allow at least a
qualitative comparison to be made of relative positions
regarding the status quo, the most likely preference for the
international community and the desired position of the
United States. The scale chosen places the solution affording
maximum national jurisdiction to the left and that of maximum
international jurisdiction to the right. In the interest of
clarity and space, the specific solutions are not transposed
in Figure 13 -but only the relative positions as analyzed by
the author from the original spectra.

If all seven spectra are viewed simultaneously several
general conclusions can be drawn.- The status quo positions

127

(national jurisdiction) <v"

->* (international jurisdiction)

^4. U.S. [U.S.]

I n A

Spectrum #1: National Security and Peaceful Use of the Oceans

ru.s.i

U.S.

N

><_. _

Spectrum #2: Territorial Sea

•^ A ru.s.i

N U.S.

Spectrum #3: International Straits
.1 ^ [U.S.]

U.S.

Spectrum #4: Marine Scientific Research

J^L

^ [U.S.] U.S.

N
Spectrum #5: Marine Resources

i *-— ^ — » ^

[U.S.] U.S.

N

Spectrum #6: Marine Pollution

A

N

[U.S.]

Spectrum #"]: International Regime

U.S

N

^ legal status quo [U.S.] recent U.S. policy

£± most likely international solution N best solution for U.S. Navy

U.S. best solution for United States

Figure 13: The Conglomerate Spectra

128

on the spectra tend to be the farthest left of all the
solutions, close to the national jurisdiction end of the
scale. The most likely solution by the international
community is usually to the right of the status quo position
thus, tending towards more international jurisdiction.
Present United States policy tends to be even more to the
right than the projected international position. The author's
opinion of the best solution for the U.S. is either coincident
with U.S. policy or further towards the international end of
the spectra. The imagined best solution for the Navy is
observed sometimes to be the closest to the right or associ-
ated with international jurisdiction.

Assuming that the reader finds the seven spectra and the
preferred solutions approximately right, he may join the
author in concluding that the United States of America, only
somewhat less than its Navy, has much to gain from an ocean
regime and structure more transnational than national in
character. Together, the United States and its Navy should,
consequently, be the staunchest and most influential
supporters of such an outcome from the United Nations
sponsored negotiations on the future Law of the Sea.

129

BIBLIOGRAPHY

1. Alexander, Lewis M., National Interests in Continental
Shelf. Paper presented at Pacem In Maribus, Malta,
June 1973.

2. Alexander, Lewis M., ed. Proceedings of the Sixth Annual
Conference of the Law of the Sea Institute . Kingston,
Rhode Island: University of Rhode Island, 1971.

3. Alverson, Dayton, "The Conflict over International
Fisheries", lecture given at Naval Postgraduate School,
1 February 1974 .

4. Amerasinghe, H.S., Message to Pacem In Maribus IV. Paper
presented at Pacem In Maribus, Malta, June 1973.

5. Bjarnason, Loftur and Janis, Mark, "The Cod War: Two
Points of View", Logberg-Heimskringla, October 1973.

6. Booda, Larry L., "ASW - Challenges and Bold Solutions",
Sea Technology, November 1973, p. 25.

7. Borgese, Elisabeth Mann, "Beyond Peace and War", The
Center Magazine, 1973.

8. Borgese, Elisabeth Mann, ed., Pacem In Maribus. New
York: Dodd, Mead & Company, 1972.

9. Borgese, Elisabeth Mann, "The Ocean Regime", A Center
Occasional Paper, vol. 1, no. 5, October 1968.

10. Borgese , Elisabeth Mann, "Who Owns the Earth's Resources?",
Vista, p. 13, August 1973.

11. Botzum, John R., ed., Ocean Science News, vol. 15, no.
38, 21 September 1973.

12. Bourk, Robert, Personal interview at Naval Postgraduate
School, 30 January 197^.

13. Brittin, B.H. and Watson, L.B., International Law for
Seagoing Officers, 3rd ed. Annapolis, Maryland: Naval
Institute Press, 1972.

14. Brock, John R., "Introduction to the 1971 Issue on Law
of the Sea", JAG, vol. xxv, no. 3, p. 67, 1970-1971.

15. Brock, John R., "IV: Mineral- Resources and the Future
Development of the International Law of the Sea", JAG,
vol. xxii, no. 2, p. 39, 1967.

130

16. Brucan, Silviu, Basic Perequislte for a Successful Law
of the Sea Conference. Paper presented at Pacem In
Maribus, Malta, June 1973.

17. Bureau of Naval Personnel Career Publication, All Hands.
Washington DC: US Navy, January 1974.

18. Burke, W.T., Towards a Better Use of the Ocean. Stockholm,
Sweden: Almqvist and Wiksell with Stockholm International
Peace Research Institute, 1969.

19. Cohen, Paul, "New Roles for Submarines", To Use the Sea,
p. 136, Naval Institute Press, Annapolis, Maryland,
1973.

20. Commission on Marine Science, Engineering and Resources,
Our Nation and the Sea. Washington DC: US Government
Printing Office, January 1969.

21. Craven, John P., "III. The Challenge of Ocean Technology
to the Law of the Sea", JAG, vol. xxii, no. 2, p. 31,
1967.

22. Division of Naval Reactors, Naval Ship Systems Command,
The Naval Nuclear Propulsion Program. Washington DC:

US Atomic Energy Commission, July 1973.

23. Duxbury, Alyn C., The Earth and Its Oceans. Reading,
Massachusetts: Addison-Wesley Publishing Company, 1971.

24. Flanagan, Dennis, ed., Scientific American, vol. 221,
no. 3, September 1969.

25. Friedmann, Wolfgang, The Future of the Oceans. New York:
George Braziller, Inc., 1971.

26. Germany, Holmes B. , Policy Paper United States Navy
Position on Law of the Sea Conference, 1973. Unpublished
paper for course GV2275, Naval Postgraduate School,
1973.

27. Gorshkov, S.G., "Navies in War and in Peace", Russian
Naval Digest, February 1973.

28. Grantz, A., Lecture at Point Barrow, Alaska, 7 September
1973.

29. Gullion, Edmund A., ed., Uses of the Seas. Englewood
Cliffs, New Jersey: Prentice-Hall, 196b.

30. Haderlie, Eugene, Lecture for Ecology Course at Naval
Postgraduate School, Monterey, California, January 1974.

131

31. Harlow, Bruce A., "II: Contemporary Principles of the
International Law of the Sea", JAG, vol. xxii, no. 2,
September - October - November 1967 .

32. Hearn, W.A., "I. Introduction", JAG, vol. xxii, no. 2,
p. 23, 1967.

33. Hearn, W.A., "V. Principles of International Legal
Development", JAG, vol. xxii, no. 2, p. 45, 1967.

3^. Hollick, Ann L., "Seabeds Make Strange Politics",
Foreign Policy #9, Winter 1972-1973, p. 148.

35. Hood, Donald, ed., Impingement of Man on the Oceans.
New York: John Wiley & Sons, Inc., 1971.

36. Home, R.A., Marine Chemistry. New York: John Wiley
& Sons, Inc., 1969.

37. International Atomic Energy Agency, Statute , reprint
by IAEA, Austria, March 1967.

38. International Ocean Institute, Carribbean Study Project,
excerpts from the Preparatory conference Jamaica,
October 1972, Malta: Royal University of Malta Press,
1973-

39. International Ocean Institute, Proceedings Pacem In
Maribus Convocation 1972. Malta: Royal University of
Malta Press, 1973.

40. Janis, Mark W. , Freedom of the High Seas an Impossibility?
unpublished paper Naval Postgraduate School, Monterey,
California, 1973-

41. Janis, Mark W. , "The Development of European Regional
Law of the Sea", Ocean Development and International
Law Journal, Fall 1973.

42. Johnson, Brian, "UNCLOS - Huis Clos? or the UN Confer-
ence on the Loss of the Sea", Your Environment, Spring
1973.

43. Ketchum, B.H. (ed.), The Water's Edge: Critical Problems
of the Coastal Zone. Cambridge, Massachusetts: MIT
Press, 1972.

44. Knight, H. Gary, "The 1971 United States Proposals on
the Breadth of the Territorial Sea and Passage Through
International Straits" , Oregon Law Review, vol. 51,
no. 4, part II, Summer 1972.

132

45. Knott, Richard C, "Who Owns the Oceans?" To Use the
Sea, p. 300, Naval Institute Press, Annapolis, Maryland.

46. Koers, A., "The Canadian Artie and the Northeast
Passage", Ocean Science News, June 1970.

47. Loftas, Tony, "Where Have All the Anchoveta Gone?"
New Scientist, 28 October 1973.

48. Logue, John J., ed., WORI Report #12. Villanova Univer-
sity, November 1973-

49. Marx, Wesley, The Frail Ocean. New York: Coward-McCann,
Inc., 1967.

50. Mathews, Thomas, Military Presense in the Carribbean.
Paper presented at Pacem In Maribus, Malta, June 1973-

51. McConnaughey , Bayard, Introduction to Marine Biology.
Saint Louis: The C.V. Mosby Company, 1970.

52. McDougal, Myres S., "The Law of the High Seas in Time
of Peace", To Use the Sea, p. 335, Naval Institute
Press, Annapolis, Maryland, 1973.

53. Mclntyre, S., Statement made at Pacem In Maribus
Convocation, June 1973 •

54. McManus, Robert J., "The New Law on Ocean Dumping -
Statute & Treaty", Oceans, 5 November 1973, p. 25.

55. Newton, Frank, "The New Quest for Atlantis: Proposed
Regimes for Seabed Resources", JAG, vol. xxv, no. 3,
p. 79, 1970-1971.

56. Nixon, Richard M. , Marine Science Affairs - Selecting
Priority Programs. Washington DC: US Government Printing
Office, April 1970.

57. Nixon, Richard M., US Foreign Policy for the 1970's.
Washington DC: US Government Printing Office, 3 May
1973.

58. Palmer, W.R., "Territorial Sea Agreement - Key to
Progress in the Law of the Sea", JAG, vol. xxv, no. 35
p. 69, 1970-1971.

59. Rogers, William P., United States Foreign Policy 1971-
Washington DC: US Government Printing Office, March
1972.

133

60. Sabalos, M.W. , Office of the Joint Chief of Staff Law

of the Sea briefing during interview of author. Pentagon,
Washington DC, 14 June 1973.

61. Sater, J.E., Ronhovde, A.G. and van Allen, L.C., Arctic
Environment and Resources. Washington DC: The Artie
Institute of North America, November 1971.

62. Shapley, Deborah, "LOS, Wet Blanket for Ocean Research",
Science, 14 September 1973.

63. Shepard, Francis P., Submarine Geology, 3rd ed. New
York: Harper & Row Publishers, 1973.

64. Smith, R.H., "Toward a Navy Second to None", To Use
the Sea, p. 144, Naval Institute Press, Annapolis,
Maryland, 1973.

65. Stevenson, John R., "Statement by Ambassador Stevenson,
Subcommittee II, July 18" , The Department of State
Bulletin, vol. LXIX, no. 1787, 24 September, 1973-

66. Stevenson, John R., "Who Is to Control the Oceans:
U.S. Policy and the 1973 Law of the Sea Conference"
reprint from The International Lawyer, vol. 6, no. 3
July 1972.

3
3

67. Steyaert, Personal interview at UNESCO, Paris, 3 July
1973.

68. Sverdrup, H.V. , 'Johnson, M.W. and Fleming, R.H., The
Oceans . Englewood Cliffs, New Jersey: Prentice-Hall,
Inc., 1942.

69. To Use the Sea. Annapolis, Maryland: Naval Institute
Press, 173.

70. Tucker, Steven P., Personal interview at Naval
Postgraduate School, 15 January 1974.

71. Tung, W.L., International Organization under the United
Nations Systems. New York: Thomas Y. Crowell Company,
196T.

72. United States Department of State, Sovereignty of the
Sea. Publication #7849. Washington DC: Government
Printing Office, 1969.

73. Urick, R.J., Principles of Underwater Sound for
Engineers. New York: McGraw-Hill Book Company, 1967.

134

7*1. Waters, O.D. Jr., "The Ocean Sciences and the Navy",
To Use the Sea. Naval Institute Press, Annapolis,
Maryland, 1973.

75. Wenk, Edward Jr., The Politics of the Ocean. Seattle:
University of Washington Press, 1972.

76. Wiggins, J.L., Personal interview with Egyptian Head
Delegate to UN Preparatory Meeting for Law of the Sea
Convention. 1 July 1973.

77. Wiggins, Joseph L., Pollution of the Coastal V/aters
of the US. Unpublished paper at Naval Postgraduate
School, Monterey, California, November, 1973.

78. Wulf, Norman A., "International Control of Marine
Pollution", JAG Journal, vol. xxv, no. 3, P. 93,
1970-1971.

135

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REPORT DOCUMENTATION PAGE

READ INSTRUCTIONS
BEFORE COMPLETING FORM

1. REPORT NUMBER

2. GOVT ACCESSION NO.

3. RECIPIENT'S CATALOG NUMBER

4. TITLE (and Subtitle)

Implications of the Emerging Law of the
Sea to the U.S. Navy

5. TYPE OF REPORT ft PERIOD COVERED

Master's Thesis;
March 197^

6. PERFORMING ORG. REPORT NUMBER

7. AUTHORf«;

| Joseph Lambert Wiggins

8. CONTRACT OR GRANT NUMBERf*)

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Naval Postgraduate School
Monterey, California 939^0

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Naval Postgraduate School
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March 197^

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14 1

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Naval Postgraduate School
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15. SECURITY CLASS, (ol this riport)

Unclassified

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SCHEDULE

16. DISTRIBUTION STATEMENT (ol this Report)

Approved for public release; distribution unlimited.

17. DISTRIBUTION STATEMENT (of the abstract entered In Block 20, It different from Report)

IB. SUPPLEMENTARY NOTES

19. KEY WORDS (Continue on reverse elde it noceee&ry end Identify by block number)

Law of the Sea
Maritime Law
U.S. Navy

20. ABSTRACT (Continue on reverse side If nvceesary and Identify by block number)

Seven major issues in dispute at the United Nations
Conference on the Law of the Sea and affecting the U.S. Navy are
examined from the standpoints of Naval interests as well as the
Nation and the international community. The issues are:
National security and peaceful use of the oceans; The
! territorial sea; International straits; Marine resources;
Marine scientific research; Marine pollution, The international

DD ,*

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CbCUHITY CLASSIFICATION OF THIS PAGEftVhen Dmtm Enfrtd)

(20. ABSTRACT continued)

regime .

Solutions to the issues are argued and compared from the
perspectives of the international community as a whole, the
United States and the U.S. Navy. It is shown that the best
solutions for both the United States and its naval force appear
to be in the direction of greater international jurisdiction
for the world's seas, and, thus, the U.S. stands to gain the
most from an effective and widely accepted international ocean
regime. The roles of the U.S. Navy and other international
navies as peacekeepers and marine managers supporting a new
international ocean order are also explored.

DD Form 1473 (BACK)

1 Jan 73

S/N 0102-014-6601 SECURITY CLASSIFICATION OF THIS PAGEflKhin Dsfo Entermd)

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Implications of the
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to the U. S. Navy.