henkin1974

Politics and the Changing Law of the Sea
Author(s): Louis Henkin

Source: Political Science Quarterly, Vol. 89, No. 1 (Mar., 1974), pp. 46-67
Published by: Academy of Political Science
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Politicsand the ChangingLaw
of the Sea
LOUIS HENKIN
The Third United Nations Law of the Sea Confer-

ence is scheduled to begin its working session this coming June.'
It will reconsider every facet, singly and together, of the complex
that is the law of the sea. The law that will probably emerge
will differ radically from that codified and developed only fifteen
years ago at the First Law of the Sea Conference,! creating new
concepts and perhaps new institutions to govern the seventy per-
cent of the earth that is sea. Agreements reached-or failure to
1 An organizationalsession was held at the United Nations Headquartersin

December1973. The second, substantivestage of the Conferencewhich begins
in June will be at Caracas.See United Nations GeneralAssembly Resolution
(hereafter,UNGA Res.) 3067 (XXVIII),i6 November1973.
Many of the sourcematerialsreferredto in this article are availableconveni-
ently in two volumes compiledand editedby Lay, Churchill,and Nordquist,for
a conferenceon "New Directions in the Law of the Sea" of the British Insti-
tute of Internationaland ComparativeLaw (1973); they are cited hereafteras
Documents.
'At the FirstLaw of the Sea Conference,p. 50 below. The SecondLaw of the
Sea Conferenceheld in Geneva in 1960 was essentially a postscript to the
1958 Conference,devoted to a second (also unsuccessful)attempt to define the
width of the territorialsea and the extent of coastal-statejurisdictionover fish-
ing. See UNGA1307 (XIII),lo December1958.
LOUIS HIENKINis Hlamiiiltoni Fish Professor of Internationial Law and Diplomacy,

ColumiibiaUniversity. He is the author of Law for the Sea's Mineral Resouirces,
How Nations Behave: Law anid Foreign Policy, and Foreign Affairs and the
Constitution.
46 Political Science Quarterly Volume 89 Number -1 March 1974
POLITICS AND THE LAW OF THE SEA 1 47
agree-will affectvital andimportantinterestsof all nations.

For two hundredyears the law of the sea had been stable and
generallyaccepted.Today, that law is in disarray,beset by uncer-
tainty, and subjectto conflictingclaims and counterclaims.Once
the law of the sea was the special concernof the few seafaring
peoples, and the shape and content of that law were determined
largely by the dominantinterestsof maritimepowers. Today the
law is being molded by many states, principallythe weaker and
poorerstates, includingthose that have small use of the sea. Once
the law of the sea governedprincipallythe use of the sea as a high-
way of navigationand a sourceof food. Now the law has added
new dimensionsto govern new and varieduses, and the recovery
of a wealth of new mineralresources.Once the hallmarkof the
law of the sea was "freedom,"meaningessentiallynonregulation
and laissez-faire.Now we hear new claims by coastal states to
exclusiverights in more and more of the sea for more and more
purposes,new claims by states generallyin the seas at large, new
proposalsfor exploitationof resourcesby "mankind,"new empha-
sis on regulationof other uses of the sea for the general welfare.
To the studentof internationalpolitics the changingof the law
of the sea drives home old lessons in new garb. For lawmaking
is a politicalactivity. In the internationalsystem law is made, or
remade, by the political actors, principally the governmentsof
states; but the policiesof governmentsare sometimesshapedby a
complexof domestic,transnationaland internationalfactors.Such
law is observed,and survives,if it continuesto serve the purposes
for which it was made and if its principalbeneficiarieshave the
will and the ability to resist violations. New law that emergesre
sults from vectors of political force, but political force is itself a
resultantof a complexof influences.
What has changedin the sea, anidin the politicaluniversethat
producedits old law?Whatare the issues that dividestates?Which
are the principalprotagonists?What are the political forces that
will determinethe outcome?How materialare the ideologicaldi-
visions of our times, and political disputes in ideologicalguise?
What law is likely to emerge?What will happen if there is no
agreement?
T'heOld Law
The law of the sea has for long been subsumedin the slogan "the
48 | POLITICAL SCIENCE QUARTERLY
freedomof the seas."3That has meant primarilyfreedomfor all

to navigatein securitysubjectonly to "rulesof the road,"at least
in time of peace. The seas were also free for other uses such as
recreationor dumpingwaste.Theprincipleof freedom,or one close-
ly relatedto it,4 also implied that the resourcesof the sea, prin-
cipallyfish,werefreefor all to take.
There was one small exceptionto this freedom.Coastal states
early claimedthe right to excludehostile vessels, and the warring
vessels of otherstates, from a narrowband of sea adjacentto their
coasts.5They assertedauthorityin coastalareas to preventsmug-
gling and other violations of their laws. They also claimed ex-
clusive rights to the fish of the coastal waters and the sedentary
species of their sea-bed, and to mine that sea-bed or the subsoil
by digging under water or by tunneling from shore. In time it
becameacceptedthat a coastal state has effectivesovereignty(and
thereforefull title and authorityfor all purposes)in its territorial
sea, subjectonly to a right of "innocentpassage"for foreign ves-
sels.6The dominantview-shared by the UnitedStates,GreatBrit-
ain, Japan,and others-was that this territorialsea extendedthree
miles from shore. In addition,coastalstates enjoyed rights to en-
force their immigration,customs, sanitationand other laws in a
contiguouszone of undefinedbreadthbeyond the territorialsea.
The principlesI have describedwere largely acceptedthrough
the nineteenthand the first half of the twentieth centuries.Oc-
casionalclaimsby coastalstates to extendtheirterritorialsea were
effectively rejected.There were issues about "innocentpassage,"
particularlyas to whetherit appliedin time of war, or to military
vessels even in time of peace, and uncertaintiesabout the contig-
uouszone. Outsideof territorialwaterstherewereoccasionalclaims
to exdusive fishing rights by virtue of long uninterruptedusage
("historic"rights). In time of war coastal nations excludedbel-
ligerentacts from a widerzone.7After the SecondWorldWar the
9For a brief survey, see Henkin, "ChangingLaw for the ChangingSeas," in

Uses of the Seas (E. Gullion,ed., 1968).
'Strictly, the right to fish dependedon who "owned" the seas or the fish.
Therehas been a classic debate as to whether they belonged to everyone or to
no one, but all acceptedthe right to fish and to keepwhat was caught.
f The classichistory is T. W. Fulton,TheSovereigntyof the Sea (191l).
'See generally P. C. Jessup, The Law of TerritorialWaters and Maritime
jurisdiction(1927). But aircrafthave no right of "innocentpassage"in the air
spaceover the territorialsea.
See, for example,the Declarationof Panama,1 Dept. State Bull. 331 (1939).
7
POLITICS AND THE LAW OF THE SEA | 49
United States and CanadaestablishedAir Defense Identification

Zones of several hundredmiles, requiringapproachingplanes-
usually from the sea-to identify themselves.But these, too, were
consideredminorandreasonableextensionsof traditionallaw.
A majorblow for change in the law of the sea was struckby
the TrumanProclamation.8The Second World War had empha-
sized the need of the United States for new sourcesof energy and
the importanceof being independentof foreignsources.Geologists
had confirmedhuge resourcesof oil and gas off the shores of the
UnitedStates,outsideher territorialseas, and technologywas mak-
ing them economicallyaccessible.In 1945, PresidentTrumanpro-
claimed that these resourcesshould be used and, since their ex-
ploitation dependedeffectively on the coastal state, that it was
"reasonableand just" that the coastal state take them. He there-
fore claimedfor the UnitedStates exclusiverights to the resources
of hercontinentalshelf.9
By the TrumanProclamationthe United States assertedan ex-
clusive authorityoutside her territorialsea. Other nations, how-
ever, did not protest;rather,they followed suit, and the doctrine
of the continentalshelf became"instant"internationallaw. But it
was limited new law. While the coastal state acquiredexclu-
sive rights to the mineralresourcesof the sea-bedand subsoil of
the continentalshelf, the waters above the continentalshelf, out-
side the three-mileterritorialzone, remainedhigh seas, with the
usualfreedomfornavigation,andwith fishingopento all.10
But the United States taught better than it had intended.If the
Presidential Proclamation 2667, September 28, 1945: Natural Resources of

the Subsoil and Sea Bed of the ContinentalShelf, 10 Fed. Reg. 12303 (1945),
59 Stat. 884; also in i Documentsio6.
'The continental shelf is the enderwaterplateau extending from the low-
water markto where the sea-bedbegins to slope radically.It generally includes
much more than the three-milesea-bed of the territorialsea, and, while its ex-
tent differs from place to place, it is acceptedas a convenient approximation
that the shelf runs to the 200-meter isobath, i.e., to where the waters are 200
meters deep. See L. Henkin, Law for the Sea's Mineral Resources(1968), p. :,
n. 2.
10 PresidentTrumanestablishedat the same time fishing conservationzones
in areas of the high seas contiguous to U. S. coasts, but even for this limited
purposehe claimed no exclusive jurisdictionthere for the United States if na-
tionals of other countriesalso fished there. See PresidentialProclamation2668,
September28, 1945: Coastal Fisheries in CertainAreas of the High Seas, 10
Fed. Reg. 12304 (1945), 59 Stat. 885; Also in 1 Documents 95. But comparenote
20 below.
United States could claim coastalminerals,why could not others

claim coastalfish, or other rights beyond their territorialsea? Be-
tween 1945 and 1958 there came a series of new claims by coastal
states, some to wide fishing zones, some to wide territorialsea
(althoughthese, too, may have been designedprincipallyas a way
of claimingthe resourcesof more sea or sea-bed).11The United
States and many other nations resisted such coastal-stateexpan-
sion. The expertsof the InternationalLaw Commission,charged
to codifyand developthe law of the sea, prepareddraftsessentially
reflectingthe traditionallaw plus the postwardoctrineof the con-
tinentalshelf. The commentsof governmentson the commission's
draftsalsogenerallyreflectedthatlaw.
The FirstUN Law of the Sea Conference,meetingin Genevain
1958, producedfour conventions.'2Basicallythese reaffirmedthe
freedomof the seas as long conceived,the coastal state's sover-
eignty in its territorialsea and its ancillaryrights in a contiguous
zone, and its sovereignrights to resourcesin the continentalshelf.
There was pressurefor a wider territorialsea, principallyfrom
states which wished a wider exclusive fishing zone, but extrava-
gant extensionshad no serious support.'3In the end, the width
of the territorialsea remainedundefined,but in the generalview
it was surelyno greaterthan twelvemiles.14Claimsto wide fishing
' A table of coastal-stateclaims as of 1958 is reproducedin Manual of Pub-
lic InternationalLaw (S0rensen,ed., 1968) at 244. For a more recent table see
"NationalClaims to MaritimeJurisdictions,InternationalBoundaryStudy No.
36," January3, 1972, issued by the Geographer,U.S. Departmentof State. See
also 2 Documents 833 et seq.
' Conventionon the High Seas, 450 U.N.T.S.82, T.I.A.S.No.
5200; Conven-
tion on the TerritorialSea and the ContiguousZone, 516 U.N.T.S. 205, T.I.A.S.
No. 5639; Conventionon the ContinentalShelf, 499 U.N.T.S.311, T.I.A.S.No.
5578; Conventionon Fishing and Conservationof the Living Resourcesof the
High Seas, 559 U.N.T.S. 285, T.I.A.S. No. 5969. Also in i Documents 1, lo,
257, 353. Fora tableof ratificationsof these conventionssee 2 Documents799.
l The widest zone which had a substantialnumberof adherentswas twelve
miles, supportedby the Sovietbloc and the Arabstates.
"' There was an agreedprovision that the contiguous zone beyond the terri-
torial sea extendedto no more than twelve miles from shore. See Article 24(2)
of the Conventionon the TerritorialSea and the Contiguous Zone, note 12
above. Earlier,the InternationalLaw Commission,noting the lack of agree-
ment on the width of the territorialsea, had concludedthat "internationallaw
does not permit an extension of the territorialsea beyond twelve miles." See
1956 Reportof the InternationalLaw Commission,commenton draft Article 3.
At the SecondLaw of the Sea Conferencein 1960, a proposal for a six-mile
territorialsea with an additionalsix-mile exclusive fishing zone (subjectonly
to the historic rights of others) came within one vote of the requiredtwo-thirds
majority.
POLITICSAND THE LAW OF THE SEA | 51
zones had only limited support. The continental shelf was defined
so as to give the coastal state exclusive rights to resources of the
sea-bed out to the 200-meter isobath, "or, beyond that limit, to
where the depth of the superjacent waters" permitted exploitation
of the resources (but clearly the authors contemplated only minor
extensions) 15
In sum, the law of the sea that emerged from the first UN Con-
ference was essentially the traditional law. And it was widely
accepted. Although many states refrained from adhering to the
1958 Conventions,16 they did not necessarily reject them: many
saw no need to adhere since they enjoyed the same rights without
doing so, and the principal provisions of the Conventions consti-
tuted also customary law.17 Of course, many coastal states still
wished, and some claimed, wider fishing zones, but for the most
part these claims were not consistently pressed.
The Old Law and New Politics
It is difficult to date precisely when the old consensus on the law

of the sea, essentially reaffirmed little more than a decade ago,
began to fall away. It is also difficult to identify and weigh the
forces responsible for that erosion, but, surely, one must look for
them at least as much outside the seas as within them.
Since about 1960, changes in international society have modified
the prevailing political forces, beating against several pillars of the
international system and of its law. Decolonization (and other
"self-determination") has increased to more than one hundred and
forty the number of states, the units of the political system which
have authority to make and to change law. The mass of new states
share with older states in Latin America, the Middle East, Asia,
and Africa, bonds of poverty and underdevelopment, and some re-
sentment against the Western, developed states which have long
16 For a debate on the extent of the continental shelf under the convention,
see, for example, "InternationalLaw and 'the Interests': the Law of the Sea-
bed," 63 Am. 1. Int'l L. 504 (1969); Finlay,"TheOuterLimit of the Continental
Shelf. A Rejoinderto ProfessorLouis Henkin," 64 Am. J. Int'l L. 42 (1970);
"A Reply to Mr. Finlay,"64 Am. I. Int'l L. 62 (1970). The conventionalso ap-
plied the doctrineof the continentalshelf to living resources,i.e., to the seden-
tary speciesof the sea-bed,and extendedthe doctrineto the "coastsof islands."
Article i(b).
" See Henkin, Lawfor the Sea's MineralResources(1958), p. 14, n. 33.
1 Comparethe Judgmentof the InternationalCourt of Justice in the North
Sea Continental Shelf Cases, (1969), I.C.I.Rep. 3.
dominatedthe internationalscene. This "Third World" has de-

velopedloose forms of politicaland economiccooperationinclud-
ing "bloc" voting in internationalorganizations.With varying
success they have cooperatedto completedecolonizationand end
white racism in SouthernAfrica, to begin their own economic
development,to change the laws and patterns of international
trade,to assertnationalsovereigntyand controlover theirnatural
resourcesagainstthe claimsof foreigninvestors,and in otherways
to resist"economicimperialism."
In these efforts they have had some support from the USSR
(when her own interests would not be jeopardized,of course);
andrecentlyCommunistChinahas soughtto emergeas theircham-
pion. The UnitedStatesand otherWesternpowers,often the prin-
cipaltargetsof proposedchanges,have supportedsome effortsand
resistedothers; but even resistancehas not been as wholehearted
as it might have been in the past. This attitude comes perhaps
from some guilt over past imperialismand present wealth, from
some sympathy for the aspirationsof the underdeveloped,and
from some reluctanceto allow these many states to identify their
interestswith those of the Communistpowers.Even when smaller
nations challengedcherishedprinciplesof traditionallaw, even
when they attackedimportantWestern interests-as when they
expropriated(without meaningfulcompensation)major American
investments-resistance and retaliationwere restrained.Certainly
therehave been no readyuses of forceor of "gunboatdiplomacy"
for they would violate the United Nations Charterand are other-
wise impolitic.The thresholdof nationalinterestthat will support
themis veryhigh;in particular,only verybig stakeswill causelarger
states to use force againstsmallerones, and economicinterestsare
usuallynot big enough.18
The winds of politicalchangealso blew over the seas, particular-
ly the coastalseas. Ecuadorand Peruinsistedon a 200-mile fishing
zone and seizedUnitedStates tuna boats that floutedit; they were
confidentthat the United States would not react strongly."'Such
examplesand their erosive consequencesfor the traditionallaw
probablyencouragedothers:20 Icelandclosed a large zone to ves-
18See L. Henkin, How Nations Behave: Law and Foreign Policy (1968),
ChaptersX, XI.
' The United States government even paid substantial fines imposed on
the captainsof the Americantunaboatswho fishedin the disputedzones.
20 The example of other states supportedpressuresfrom national fishing in-
sels of Great Britain, her ally, that had long fished there. In 1970,
Canada unilaterally announced a loo-mile antipollution zone in
the Arctic, over strong protest by the United States.21
The once-accepted law of the sea has been shaken hardest through
the United Nations; there the new politics is concentrated and has
many voices and votes. In his famous intervention in the General
Assembly in 1967, Ambassador Pardo of Malta asked that the min-
eral wealth of the sea-bed beyond "present national jurisdiction"
be reserved for mankind.22His initiative has evoked proposals for
a radical new law for the international sea-bed; it has also helped
explode the "present national jurisdiction" in the sea and opened
for revision other fundamentals of the law.23
Conflicting Interests in the International Sea-Bed
In response to Ambassador Pardo, the General Assembly estab-

lished a Sea-bed Committee which became a forum for preliminary
negotiation. In 1970 the Assembly adopted, without dissent, a
declaration of principles:24 notably, that the sea-bed beyond na-
tional jurisdiction is not subject to national appropriation and sov-
ereignty but is "the common heritage of mankind"; it shall be
exploited for "the benefit of mankind as a whole, irrespective of
the geographical location of States, whether land-locked or coastal,
and taking into particular consideration the interests and needs of
dustries,which led even the United States, long a chanipionof narrowcoastal-

state jurisdiction,to proclaima twelve-mile exclusivefishing zone. 8o Stat. 908
(1966). Comparethe EuropeanFisheriesConventionof 1964, 581 U.N.T.S. 57
(1 Documents41), which provides for an exclusive fishing zone of six miles,
and an additionalsix miles open only to the coastal state and to states that had
habituallyfishedtherebetween1953 and 1962.
21 18-19 ElizabethII, c. 47 (1969-70), 9 Int'l Legal Materials543, 598; also
id. at 605 (1970); also i Documents199-229. See Henkin, "ArcticAnti-Pollu-

tion: Does CanadaMake-or Break-International Law?",65 Am. 1. Int'l L.
131 (1971).
22 For the original agenda item and the accompanyingmemorandumsee UN
Doc. A/ 6695 (1967). The item has appearedon the agendaof the GeneralAs-
sembly every year since then.
' Although the agenda item refers only to the sea-bed, the ocean floor and
its subsoil, it soon became the occasion for discussing other sea-issues as
well. Comparenote 30 below. On the other hand, althoughthe item spoke of re-
serving the sea-bed "exclusively for peaceful purposes," issues of disarma-
ment and arms control were largely left for consideration in the context
of disarmamentdiscussionsgenerally.See p. 66 below.
24 UNGA Res. 2749 (XXV), 17 December 1970, 2 Documents 740.
the developingcountries."
While the agreedprinciplesprecludeassertionsof nationalsov-
ereignty, they settled little else. Unanimousagreementcould be
obtainedonly at a high level of generalityand ambiguityleaping
over majorconflicts.The sea-bedis the heritageof "mankind"but
therehas been no agreementas to who is or representsmankind,
or how mankindshouldenjoy that heritage.Only a few, developed
states have the capital, the technology,and the enterpriseto ex-
ploit the resourcesof the internationalsea-bed; they, of course,
prefermaximumfreedomto do so and maximumrevenuefor them-
selves and their nationals.They resist internationalorganizations
with substantialauthority,surely organizationsrun by simplema-
jority. Mankind,they might say, would enjoy the benefits of its
heritage, and enjoy them most quickly and cheaply, if the de-
veloped states were allowed to exploit it competitivelyfor profit
(though some revenue for internationaldevelopmentmight also
be provided).
The many poor states have no hopes of exploiting those re-
sourcesthemselves,but they demanda sharein that wealth and a
voice in its exploitation.Some, perhaps,also see an opportunity
to establish internationalinstitutions with authority over these
large areas of the earth, eventuallygiving the mass of small na-
tions controlalso over otheruses of the sea-bedand perhapsof the
sea. A group of LatinAmericanand other developingstates have
insisted that the sea-bed should be exploited exclusively by an
internationalauthority governed by all states voting equally,25
with all therevenuegoing forinternationaldevelopment.
Since the developednations have similarinterestsin the inter-
national sea-bed their ideological differences-e.g., between the
U.S. and the USSR-bring differencesonly in the degree,means,
and style with which they meet the aspirationsof the many "un-
aligned"states.2"The UnitedStatesis morewilling to generaterev-
enue for internationaldevelopmentand to build internationalin-
'Some of these states believe that this authority should be able to control
the exploitationof these resourcesso as not to compete unduly with national
mining industriesof developingstates. CompareUNGA Res. 275oA (XXV), 17
December1970, 2 Documents 738; Reportof the UN SecretaryGeneral,A/AC.
138/36 (1971); UNGAOR 26th Sess., Supp. No. 21, A/8421, 1971.
'Compare their cooperationto achieve the Treaty on the Prohibition of
the Emplacementof Nuclear Weapons and Other Weapons of Mass Destruc-
tion on the Sea-bedand Ocean Floorand in the Subsoil thereof, 1o Int'l Legal
Materials 146 (1971), 1 Documents 288.
POLITICS AND THE LAW OF THE SEA j 55
stitutionsand authority;the Soviet Union is more forthcomingin

principleand in rhetoric,but resists majorcontributionsof funds
and stronginternationalinstitutions.The People'sRepublicof Chi-
na is strongestin championingthe cause of the underdeveloped,
but it would be surprisingif, when law is ready to be made, she
did not see herselfas a soon-to-be,if not already,developednation
as regards sea mining, and perceive her interests accordingly.
With the interests of the underdevelopedarrayed generally
against those of the few advancedstates, the majoritysought to
improveits prospectsby using its votes to declarea "moratorium":
no one may exploit the resourcesof the internationalsea-beduntil
a new regimeis agreedupon (and then, presumably,only in accor-
dancewith its terms).27The UnitedStates rejectedthe moratorium
as contrary to acceptedprinciplesof freedom,28and has stated
that it will proceedunilaterally,or in concert with like-minded
states, unless an acceptable regime were established early.29
Americancompanieswill be among the first capable of mining
"beyond national jurisdiction,"and the United States is deter-
minedto protecttheiropp6rtunity.
ExpandingNationalJurisdiction
The suggestionthat the futurelaw of the internationalsea-bedis
an issue essentiallybetweenthe few developedandthe many under-
developedstates requiresa substantialmodification.For the dis-
cussionsto datehave carefullyavoideda key element:wherewould
nationaljurisdictionend and the internationalsea-bedbegin?The
extentand contentof coastalstatejurisdiction,moreover,are issues
that regardnot sea-bed mineralsalone. That all sea issues-no-
tably, coastalstate jurisdictionfor various purposes-were related
and should be reexaminedand resolvedtogether,was a principal
UNGA Res. 2574D (XXIV),15 December1969, 2 Documents737; compare

the Assembly'sDeclarationof Principles,note 24 above.
' For a statement of the U. S. position, see 9 Int'l Legal Materials 831
(1971). On the present law governing mining beyond national jurisdictionsee
Henkin, Law for the Sea's MineralResources(1968), pp. 24-31.
9The Executive Branch announced that position in opposing legislation
that would authorize immediate exploitation of the internationalsea-bed by
U.S. nationals. See Letterof Charles N. Brower,Acting Legal Adviser, to the
Chairmanof the Senate ForeignRelationsCommittee,March E, 1973. Compare
USUN Press Release,March19, 1973, set forth in 68 Dept. State Bull. (1973).
And comparenote 44 below.
56 POLITICAL SCIENCE QUARTERLY
impetus for another comprehensivelaw-of-the-sea conference.80

Most states of the world, rich or poor, are coastalstates and, in
principle,might wish to extend their national authority.But law
extending coastal-statejurisdictionwould benefit differentstates
differently,dependingon their particulargeography,on what re-
sourceslie off their coasts, on other facts and factors,politicaland
economic,domesticand international.Some coastal states, more-
over,have otherinterestsin the sea whichwouldnot be servedwell
if othercoastalstatesextendedtheirauthority.
Thedriveto extendcoastal-statejurisdictionhas comeparticular-
ly from Latin-Americanstates. Those rich in off-shore minerals
have been reasonablycontent with their rights under the Con-
vention on the ContinentalShelf, especiallywith extravagantin-
terpretationsthat would give them the resourcesof the entiresub-
mergedlandmassout to the oceanabyss. Some states, having little
continentalmargin, have asked "compensation"in the form of
rights in the deep sea-bedfor many miles from their shores. Prin-
cipally, however, fishing states have pressed for monopoly over
fish equivalentto that enjoyedby theirneighborsover coastalmin-
erals.Within the generalcampaignof the poorerstates for change
in the internationaleconomicsystem and its law, and the general
reexaminationof the law of the sea that has followedupon Malta's
initiative,mining and fishing states in LatinAmericahave joined
to proposea "patrimonialsea" of 200 miles in which the coastal
state would have exclusive rights to all resources.31A group of
: UNGA Res. 2750C (XXV), 17 December1970, 2 Documents738. Compare
the UN Sea-bedCommittee'sList of Subjectsand Issues to be discussed at the
Law of the Sea Conference,adoptedAugust i6, 1972, UN Doc. A/AC.138/83,
i8 Aug. 1972; GAOR Supp. No. 21 (A/8721) pp. 5-8; also in 11 Int'l Legal
Materials1174 (1972), 2 Documents745. See also UNGA Res. 3067 (XXVIII),
i6 November 1973.
S While this is sometimes proposed as new law, there have also been sug-
gestions that under existing law a coastal state is entitled to extend into the
sea as far as is reasonable for any national purposes. See the Principles of
Mexico on the JudicialRegime of the Sea, adoptedat the 1956 Meeting of the
Inter-AmericanCouncilof Juristsat MexicoCity. Variationson the same theme,
and the conceptof the "patrimonialsea," have been declaredperiodically,for
example,in the Declarationof Montevideo,UN Doc. A/AC. 138/34, 9 Int'l Le-
gal Materials io8i ('1971);the Declarationof Lima, UN Doc. A/AC. 138/28,
August 14, 1970, 10 Int'l Legal Materials 207 (1971); Declaration of Santo Do-
mingo, UN Doc. A/AC. 138/80 (1972), ii Int'l Legal Materials 892 (1972);
cf. id. at 894; see 1 Documents 235, 237, 247. Compare the preamble to UNGA
Res.3029C (XXVII),Decemberi8, 1972. Thatcoastalstates can decidetheirjuris-
diction for themselves is not in accord with existing international law. See
FisheriesCase (United Kingdomv. Norway), (1951) I.C.J.Rep. 1i6, 132. Com-
parethe conclusionof the InternationalLegalCommission,note 14 above.
African states has also proposed such an "excl.usive economic

zone."32
In support of such proposals, proponents have invoked the sol-
idarity of the underdeveloped Third World, under the banner of
national sovereignty of the poor over their resources. To some mem-
bers of the Third World, however, that is not persuasive, at least
as regards the mineral resources of the sea-bed. For if the sea-bed
beyond national jurisdiction is the common heritage of mankind,
every additional inch claimed by a coastal state is denied not to
would-be economic imperialists from afar, but to mankind. In what-
ever form and to whatever degree mankind will partake in and
benefit from the exploitation of the resources of the international
sea-bed, coastal state expansion will reduce that part and that ben-
efit for the rest. (The coastal states are also, of course, entitled to
share in the common heritage but not in their capacity as coastal
states, and their share may be more or less, but surely different
from what they. would get under law permitting national expan-
sion by coastal states.) What is more, the sea-bed of the submerged
landmass beyond the continental shelf is apparently rich in re-
sources (notably petroleum) and will be economically exploitable
early, and if coastal states take those resources there will be little
for mankind.
The issue of coastal-state authority over resources in the sea,
then, is linked to the kind of regime that will govern in the sea-
bed beyond national jurisdiction. Assuming a regime that will in-
clude some revenue for international development and some au-
thority for international institutions, the land-locked states, and
the "shelf-locked"33-those coastal states that cannot expand be-
cause they face the continental shelves of other states-which get
nothing from coastal-state expansion, have good reason to resist
it. Other coastal states, too, must inevitably ask themselves whether
they have more to gain if they and all other coastal states had ex-
clusive jurisdiction out to x miles, or if all coastal states were re-
stricted to less, and more were left for the "common pot." That
would depend, of course, on their particular coastal geography, on
'See Kenya's proposalbefore the UN Sea-bed Committee,UN Doc. A/AC.

138/SC. II/L.1o, 7 August 1972. The Kenya proposal reflected recommenda-
tions of an AfricanSeminarheld at Yaoundein June 1972. See UN Doc. A/AC.
138/79, 21 July 1972, 1 Documents 250.
' For a classificationof states by such geographicalcriteria, see Alexander,
"Indicesof National Interestin the Oceans,"i Ocean Developmentand Inter-
national Law Journal 21, 37 et seq. (1973).
estimatesand guesses as to what wealth lies off their own coasts,

how much lies off other coasts and in surely internationalwaters,
and on how the "commonheritage"will be exploitedwith what
benefitto particularstates.
The politics of expandedcoastal-stateauthority over the re-
sourcesof the sea sufferan additionalcomplication.For few states
have coastalseas richlyendowedin both fish and sea-bedminerals.
Proposalsfor an "exclusiveeconomiczone" (or "patrimonialsea")
are attempts by fishing states and mining states to join po-
litical forces and votes. But while a largercoastal state monopoly
over mineralswould not impingeon "vested"rights of any other
state, thereare powerfulstates that claim establishedfishing rights
and would resist a wide coastal-statefishing monopoly. Coastal
fishing states, however,are not content to continueto have a nar-
rowerfishingzone than otherstates enjoy for minerals.In the end,
a single economiczone mightemerge,but, if so, it might be less ex-
tensivethanthe miningstatesmightlike.
Coastal States and Sea Powers
The seawardpress of coastal-stateauthorityruns also, of course,

into the traditionalfreedomof the seas, and the maritimeinterests
it supports.Indeed,the choicebetweenexpansion(for oneself and
for others) and self-restraint(with concomitantfreedomfrom ex-
pansion by others) has troubledprincipalparticipantsin interna-
tionallawmaking.
Consider the United States.34She has extensive coasts. Her
coastal waters and the bed and subsoil beneath them, to the end
of the continentalmarginand well beyond, are apparentlyblessed
with plenty of mineralsand fish. The United States is also con-
cernedfor her securityand is sensitive to intrusionfrom the sea.
She is increasinglytroubledalso by dangerto her coastalenviron-
mentfrompollutingactivitiesat sea (e.g., oil spills).
The United States, then, would benefitmore than most coastal
statesfromextendingnationalauthorityfar into the sea. The temp-
tation to do so is great, and occasionallyshe has succumbedto it,
as in PresidentTruman'sinitiativeto establishcoastal-staterights
overthe resourcesof the continentalshelf.35
"'On the various interests of the United States in the sea, compare Hen-
kin, Lawfor the Sea's MineralResources(1968), ChapterI.
9 Comparealso the U.S. claim to a twelve-mile fishing zone, note 20 above,
POLITICS AND THE LAW OF THE SEA 1 59
And yet, the United States has long been a leading champion of
maximum freedom in as much of the seas as possible, with the
narrowest jurisdiction for coastal states. For the United States free-
dom of the seas has long been an important political principle, her
leaders believing it to be essential to commerce and to peace, elim-
inating a large area of the earth from competition and conquest,
maintaining a buffer between states and reducing the likelihood of
international conflict. Today, too, maximum freedom with mini-
mum interference from coastal states furthers various United States
interests in the large seas-navigation and military deployment,
fishing and mining, scientific research and recreation. She is con-
cerned to maintain maximum freedom to send her navy wherever
it might be needed, say in the Middle East. With strategic stability
and balance now based on submarine vehicles and weapons, the
United States is particularly sensitive to possible restrictions on
her freedom to move them or to take measures to locate those of
the USSR.
The United States, then, would surely resist any new doctrine
that might permit a coastal state to exclude American military ves-
sels or submarines, or submarine-detecting devices and other de-
fensive military activities. She would oppose, too, any law that
might encourage an unfriendly coastal state to exclude her oil
tankers or other commercial vessels. The United States has there-
fore opposed extension of the territorial sea, especially since such
extensions might convert some important but narrow international
waterways into territorial seas of one or more coastal states and
make them dependent on the notions of "innocent passage" held
by the riparian state. (In 1970 the United States announced38that
she would agree to extend the territorial sea to twelve miles only if
it were also agreed that there would be a right not merely to "in-
nocent passage"-which has abiding ambiguities and does not in-
clude passage of submerged submarines or free aerial overflight-
but to wholly "free transit" through established international water-
ways.)
Concern for the freedom of other uses is also a principal reason
why the United States has resisted expanded coastal state jurisdic-
tion over resources, or pollution control. For she has feared that
and her establishmentof an air-defensezone, p. 49; the United States has also
long been a leading proponentof the principle of the contiguous zone, p.48
above.
' As part of the Nixon Plan, discussedp. 6z below.
6o I POLITICAL SCIENCE QUARTERLY
coastal state authority for one purpose will "creep" and expand,
in time converting zones for one purpose to include other and all
purposes, and essentially into wide territorialseas.
The United States might resist the expansion of coastal state
authority over resources also because she would gain less from the
extension of her own authority than she would lose if other coastal
states extended theirs. Whether under the traditional notions of
freedom or under some acceptable new international regime, few if
any states could effectively compete with the United States in the
exploitation of resources in coastal areas outside her present exclu-
sive jurisdiction; but she could do very well in the coastal areas
of other, less-developed states. The United States may not wish to
see more of the sea's resources under the unfettered control of pos-
sibly unfriendly or unstable foreign governments. Surely she does
not like to have her fishing boats driven from seas where they
have long fished freely.
The case of the USSR is different but also instructive. Her sea
interests, too, are varied and conflicting. She has substantial coast
lines on various seas. For a long time, her naval and maritime
capacities were limited. She sought to protect her shores and coastal
interests, and she favored a wider territorial sea and a large fishing
zone. She was interested in preserving freedom of navigation pri-
marily for others to bring goods to her ports.
Now the USSR is a major naval and maritime power, interested-
like the United States-in maximum freedom for her ships and
submarines in as much of the sea as possible, resisting extensions
by other coastal states that would hamper that freedom or exclude
her substantial distant fishing fleet.37The Soviet Union has not aban-
doned her earlier support for a twelve-mile territorial sea, but-
like the United States-she insists on free transit through inter-
national straits. As regards sea-bed resources, while Russia is
"shelf-locked" on some of her coasts, elsewhere extension of her
jurisdiction would give her large additional areas of sea-bed.38
But she, too, might prefer a larger area for her developed capacities
to compete in, rather than enlarged monopoly for all coastal states.
She, too, might fear "creepingjurisdiction."
9 See, generally,W. Butler,The Soviet Union and the Law of the Sea (E97j).
a See Alexander,note 33 above.
POLITICS AND THE LAW OF THE SEA I 61
Some PlauisibleResolutions
The issues on the law of the sea are not simple and they will not
be resolved in simple contest between states with clear, conflict-
ing interests.The arrayof forceswith regardto one issue may de-
pendon how othersare resolved,and largerpoliticalconsiderations
not directlyrelatedto the seawill not be irrelevant.
The resultantcoastal-statejurisdictionmight dependon the re-
gime which governs the internationalsea-bed. The land-locked
and shelf-lockedstates alone are numerousenough to prevent a
two-thirdsmajorityfor a large coastal-stateexpansion,39and the
likelihood that they will vote together, and even attract some
coastal-statevotes, will increasewith the benefitsofferedthem by
the regime for the internationalsea-bed. Without agreement,or
even in the face of an agreementthat limits their expansion,some
coastal states might persist in wider claims, but they would face
continuingresistanceand controversy,and would have a weaker
political-legalpositionin thatcontroversy.
The developingstatescouldreadilymustera two-thirdsmajority
for a draft regime for the internationalsea-bedfavorableto their
interests.But even if they were agreedon the regimethey wished
to pursue,a draft conventionwould mean little if it were not ac-
ceptableto the United States and other developedstates, for these
could proceedto dig in the deep sea-bed,individuallyor in con-
cert, without regardto any draft conventionto which they were
not party.40The majoritycould not prevent the developedstates
from suchunilateralaction,althoughthey might disturbit by clos-
ing marketsto the mineralsextracted,and by other forms of non-
cooperation.Thatthe developedstatescouldproceedto exploitwith-
out agreementwould,of course,exercisestrongpressurefor a com-
promiseacceptableto them.
On both major issues-the authority of the coastal state and
the law that shouldgovernbeyondcoastal-statejurisdiction-then,
therewill be some dispositionto accommodatecompetinginterests.
One such accommodationwas attemptedby the United States in
1971, in the Nixon Plan.41Under that proposalthe coastal state
"9 Ibid.
?And in disregardof the MoratoriumResolution,p. 55 above.
41Laterelaboratedin a working paper for the UN Sea-bedCommitteein the
would have exclusivejurisdictionof the resourcesof the sea-bed

only out to the 200-meter isobath-essentially where President
Trumanfixed it and where the 1958 Conventionconfirmedit (but
without its expansive"exploitabilityclause").42Beyond the 200-
meterisobath,out to the end of the continentalmargin,therewould
be an intermediatezone in which mining would be managedby
the coastal state, but would be otherwise subject to the interna-
tional regimethat will govern the deep sea-bed.The revenuefrom
exploitationin this intermediatezone would be divided, in pro-
portionsto be agreed,between the coastal state and the interna-
tional community.Beyond the intermediatezone the international
sea-bed would be under an internationalauthoritywhich would
issue licensesto states to exploitsectionsof sea-bed,would receive
fees for such licensesthat would go for internationaldevelopment,
would enforcenecessaryregulations,and would resolve disputes.
The United States plan obviously sought to compromisecom-
peting interestsof differentstates as well as her own conflicting
concerns.In the intermediatezone the coastal state would have
managing authorityover, and substantialrevenue from, the re-
sources of a large additionalextent of sea-bed; but "mankind"
would also receive a substantialshare of that revenue. That the
intermediatezone is subjectto the internationalregimewould en-
tail some internationalcontrol, would emphasize that this area
does not belong to the coastalstate, and reducethe likelihoodthat
the coastal state's authorityover resourceswould spreadto other
purposesand other uses. In the internationalsea-bed (beyondthe
intermediatezone) developedstates would exploit under license
from the internationalauthority;but developingstates, even land-
locked states, could also apply for licenses and buy or hire the
necessarytechnology.States which obtainedlicenses would have
substantialautonomybut would be subjectto some international
authority,administeredso as to give some voice to all states and
specialvoice to those with special interestsand skills in the sea.
Therewould be revenuefor the exploitingstates (and for the com-
paniestheyuse) andsomefor the internationalcommunity.
The United States plan fell onto diplomatictables before most
form of a draft Convention. See UN Doc. A/AC.138/22 (1970); 62 Dep't

State Bull. 737 (1970); UN GAOR, 25th Sess. Supp. No. 21, A/8021, Annex V;
9 Int'l Legal Materials 1046 (1970); 2 Documents 751, 753.
"2See p. 51 and note 15 above.
states understood the needs, the issues, their own interests, and
possible accommodations. As regards the coastal areas, the inter-
mediate zone did not appeal to coastal states which sought full,
exclusive, jurisdiction there. It was opposed also by forces within
the United States which favored such full expansion by the United
States.43 In the international sea-bed, international licensing of
governments or companies was opposed by states which insisted
that the heritage of mankind should be exploited only by an inter-
national operating agency, run by the community of states on the
basis of equal voting, with all the revenue going to develop poor
states.
Some, major, coastal-state expansion is certain. Coastal states
have effective "possession" and few others have the strong interests
and acceptable means of resisting them. There is no significant
resistance to a twelve-mile territorial sea. Opposition to extended
coastal-state monopoly in fishing comes from distant, developed
"economic imperialists" and has no wide support. (The United
States has proposed a compromise: different jurisdictions for dif-
ferent species, with the coastal state's monopoly in a wide zone for
coastal species only.) The opposition of land-locked and shelf-
locked states to coastal-state expansion on the sea-bed seems-sur-
prisingly-less than united and firm, perhaps because they have
been mesmerized by appeals to the needs for solidarity of the under-
developed, perhaps because the immediate import of that solidarity
outweighs the uncertain promises to them of the "heritage of man-
kind." Torn by its own ambivalence, pressed by domestic forces
and the insistence of some coastal states, United States resistance
also has weakened and it has even stopped talking of the Nixon
Plan. That Plan would have denied coastal-state expansion in prin-
ciple, but would have given the coastal state new rights in a sub-
stantial area of the international sea-bed. Now, reversing presump-
tions and emphasis, the United States seems to be conceding the
principle of wide coastal-state jurisdiction and trying to obtain
some limitations on the coastal state's authority in its new domain.
See, e.g., National PetroleumCouncil, Committeeon PetroleumResources
Under the Ocean Floor, Petroleum Resources Under the Ocean Floor, 1969, and
SupplementalReport,1971; Reportof SpecialSubcommitteeon the Outer Con-
tinental Shelf, U.S. Senate Committee on Interior and Insular Affairs, 91st
Cong. 2d Sess., December1970; compareThe Law of the Sea Crisis, Staff Re-
port to the U.S. Senate Committeeon Interiorand InsularAffairs, 92d Cong.,
ist Sess., December1971. See, generally, Hollick, "United States Oceans Poli-
tics," 10 San Diego L. Rev. 467 (1973).
The United States is seeking assurances against expropriation of

American industry mining in foreign coastal sea-bed,, and against
interference with the United States military and other uses, in-
cluding scientific research. She is seeking compulsory settlement
of disputes and she has proposed "revenue sharing" by coastal
states with the international community.44
To obtain these derogations from the new coastal state autonomy,
the United States is counting on support from other developed
states, from land-locked and shelf-locked states, and even some
coastal states. To obtain assurances against interference with other
uses, especially with navigation, the United States is counting
also on the support of many "zone-locked" states-those coastal
states which would have access to the ocean only through some other
state's economic zone. (The Soviet Union, for example, is zone-
locked as regards access to the Atlantic Ocean.) It is not yet clear
that the United States will obtain these limitations and assurances.
It will be some years before we will know whether any limitations
and assurances obtained will be honored and will effectively safe-
guard other interests of other states in coastal areas.
Other Issues: Pollution, Scientific Research, Disarmament
There are other issues, brushed too lightly in the past. The sea
is central to concerns for the world environment. There have been
conflicts between maritime states and coastal states about oil pol-
lution, and the latter have begun to assert various controls to pro-
tect their environment.45 Particular problems of marine pollution
have been addressed by special conventions under the auspices of
the Intergovernmental Maritime Consultative Organization
(IMCO),46but some issues at least will be among those in a com-
" So as not to delay exploitationby United States industry in the deep sea-
bed, the United States has proposedthat any agreementreachedshould go into
effect provisionallybefore the accessionsnecessaryto put it into effect formal-
ly and permanently.Similar provisional effectivenesshas been proposedfor a
new regimeon fisheries.
' See p. 53 above.
"See, e.g., the various conventions dealing with oil pollution, and dump-
ing of waste, 2 Documents557 et seq., 670; Conventionon the Preventionof
MarinePollutionby Dumpingof Wastes and Other Matters,iz Int'l LegalMa-
terials 1294 (1972); Conventionfor the Preventionof Pollution from Ships, 13
id. at 1319 (1973). Therehave also been regionalconventionsin WesternEurope,
e.g., The North Sea Convention,2 Documents632.
prehensive review of the law of the sea. Since coastal states have
a strong bargaining position, the new law will doubtless give them
more authority than is now recognized, though maritime states
will resist intensive controls that would hamper or greatly raise
the cost of shipping. The United States has proposed interna-
tional standards with a mixed system for enforcing them-by coast-
al states, port states and the vessel-flag states-but initially, at
least, that proposal has not been received enthusiastically.
Coastal states are themselves principal polluters, however, for
land wastes must be disposed of and the seas have been a conve-
nient, inexpensive receptacle. It has been suggested that any state,
as a representative of the common interest in the seas, should be
able to protest and take necessary measures against any polluter,
but that principle seems a distant prospect. And few states will
wish to roil their friendly relations with an offending state for
the sake of a general undifferentiated interest. Perhaps an inter-
national authority for the international sea-bed will be given au-
thority to deal with pollution from mining there, and in time with
other pollution as well-perhaps even that coming from land. For
some issues one can only expect general undertakings and exhor-
tations which in the past have not been very effective.47
One may hope, too, that there will be greater care for the free-
dom of scientific research. The 1958 Convention on the Continental
Shelf provides that mining there must not "result in any inter-
ference with fundamental oceanographic or other scientific research
carried out with the intention of open publication." [Article 5(1).]
And while the coastal state's consent is required for research on the
Shelf, "the coastal States shall not normally withhold its consent"
for purely scientific research by a qualified institution, though the
coastal state shall have the right to participate in such research.
[Article 5(8).] In fact, however, consent has been commonly with-
held and scientific research on the continental shelves of the world
by foreign scientists has virtually ceased; in few places, more-
over, have national scientists been available to do such research.
"CompareArticle 24 of the Conventionon the High Seas, note 12 above,

requiringstates to draw up regulationsto preventpollutionby oil from ships or
pipelines, or resulting from sea-bed mining; and Article 25 requiringthem to
preventpollution from dumpingof radioactivematerials.In Article 5(7) of the
Convention on the ContinentalShelf, coastal states undertake,in the safety
zones aroundmining installations, all appropriatemeasuresfor the protection
of the living resourcesof the sea fromharmfulagents.
66 I POLITICAL SCIENCE QUARTERLY
Especially in the light of expanding coastal-state jurisdiction, the

United States has proposed that the need for coastal-state consent
be eliminated, but that research must be bonafide and open, and
the coastal state should have the right to participate. Many coastal
states, however, will doubtless insist on retaining the requirement
of consent and will continue to discourage research. On the other
hand, any convention covering the deep-sea will doubtless also re-
assert the freedom of research there, and shore it up against in-
vasion by mining and other new activities.
Any disarmament in the sea will not be achieved in a revision
of the law of the sea, but in the context of disarmament negotia-
tions. The United States and the USSR have already agreed not to
emplace nuclear weapons on the sea-bed.48Many would like to see
additional controls and limitations on armaments in the sea,
but, since the strategic balance now depends on submarine wea-
pons, controls that would affect those weapons are not likely (and,
many believe, would not be desirable).
Law by Agreement or Default
Whether by agreement at the Third Law of the Sea Conference,

or as a result of smaller local agreements and unilateral actions
if the conference fails, the law of the sea will soon be very different
from what it has been. The new law will not be determined by the
superpowers, though ideological divisions between East and West
are now attenuated, the military and economic interests of the
U.S. and the USSR (and even China), as coastal states and as major
naval and maritime powers, are essentially similar, and the posi-
tions they will take will not be markedly different. To a high
degree the new law will reflect, rather, the "solidarity" of the many
"unaligned," underdeveloped states, banding together, sometimes
even against the apparent national interests of some of their group.
The principal outcome will be something Ambassador Pardo's
initiative surely did not intend or anticipate, but probably helped
to achieve. By throwing open the law of the sea to change, at a
time of political militancy and daring by small nations, UN con-
sideration, though focused on the sea-bed beyond national juris-
diction, loosed forces seeking especially to expand national juris-
diction. Large expansion of coastal state jurisdiction for most pur-
4 See note 26.
poses noted in this paper will be accomplished in fact and ac-

cepted in principle. The United States, Soviet Russia, and China,
all having extensive coasts, will make major gains in resources
and authority, but their interests in the coastal areas of other states
will inevitably suffer. The price of agreement to expansion by
coastal-states may include some restrictions on their autonomy in
their new economic zone, and perhaps some "revenue sharing."
Small-state solidarity and militancy will doubtless assert it-
self also as regards a regime for the international sea-bed. But
the United States and Russia (and, less openly, even China) will
not agree to establish an international "enterprise" run by major-
ity vote. If the majority insists, the result may be no agreement,
no international revenue, no new institutions, with the seas ef-
fectively open to unilateral exploitation by the developed countries
and their nationals.
Whether in coastal areas or beyond, whether as regards resources,
protecting the environment, or maintaining freedom of naviga-
tion, there will be sharp issues, principally between those states
blessed by geography and the rest of mankind, and between those
blessed by wealth and technological prowess and the rest of man-
kind. There is time for states to consider, to exercise self-restraint
and demand it of others, for the sake of longer, deeper interests.
If narrow national egoism prevails, if coastal states grab what they
can reach, if developed states grab in areas beyond national juris-
diction, there will be no agreement, and much of the law of the
sea will be replaced by chaos and controversy for years to come.
Whatever happens, the student of politics will learn much about
perceptions of national interest, about how nations behave and
negotiate, and about the politics of lawmaking in the international
systemof the 1970s.

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Politics and the Changing Law of the Sea

Author(s): Louis Henkin

You may need to log in to JSTOR to access the linked references.

The Third United Nations Law of the Sea Confer-

1 An organizationalsession was held at the United Nations Headquartersin

LOUIS HIENKINis Hlamiiiltoni Fish Professor of Internationial Law and Diplomacy,

agree-will affectvital andimportantinterestsof all nations.

freedomof the seas."3That has meant primarilyfreedomfor all

9For a brief survey, see Henkin, "ChangingLaw for the ChangingSeas," in

United States and CanadaestablishedAir Defense Identification

Presidential Proclamation 2667, September 28, 1945: Natural Resources of

United States could claim coastalminerals,why could not others

The Old Law and New Politics

It is difficult to date precisely when the old consensus on the law

Sea Continental Shelf Cases, (1969), I.C.I.Rep. 3.

dominatedthe internationalscene. This "Third World" has de-

Conflicting Interests in the International Sea-Bed

In response to Ambassador Pardo, the General Assembly estab-

dustries,which led even the United States, long a chanipionof narrowcoastal-

id. at 605 (1970); also i Documents199-229. See Henkin, "ArcticAnti-Pollu-

stitutionsand authority;the Soviet Union is more forthcomingin

UNGA Res. 2574D (XXIV),15 December1969, 2 Documents737; compare

impetus for another comprehensivelaw-of-the-sea conference.80

African states has also proposed such an "excl.usive economic

'See Kenya's proposalbefore the UN Sea-bed Committee,UN Doc. A/AC.

estimatesand guesses as to what wealth lies off their own coasts,

Coastal States and Sea Powers

The seawardpress of coastal-stateauthorityruns also, of course,

would have exclusivejurisdictionof the resourcesof the sea-bed

form of a draft Convention. See UN Doc. A/AC.138/22 (1970); 62 Dep't

The United States is seeking assurances against expropriation of

Other Issues: Pollution, Scientific Research, Disarmament

"CompareArticle 24 of the Conventionon the High Seas, note 12 above,

Especially in the light of expanding coastal-state jurisdiction, the

Law by Agreement or Default

Whether by agreement at the Third Law of the Sea Conference,

4 See note 26.

poses noted in this paper will be accomplished in fact and ac-

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