5 International Law Association Report of the Australian Branch Committee on I Introduction Since it was brought into prominence in the General Assembly of the United Nations, much has been written on the subject of deep sea mining. Both inside and outside of the United Nations, numerous committees, legal and technical (including other branch committees of the I.L.A.), have discussed the problems involved in the exploration and exploitation of the mineral resources of the sea bed of the deep oceans. The Australian Committee has, as a result, been able to consider some of the recommendations and conclusions of others during the preparation of its own report. In our view there remain aspects of this important matter which have not been sufficiently adverted to and which we feel are essential to any responsible consideration of the exploration and exploitation of the deep sea bed. We think that at the present stage of developments in this field it is premature to propose any detailed scheme to regulate those activities which will, in time, undoubtedly be carried out on the deep sea bed. Indeed, the present lack of data and information on the deep sea resources makes such a task ill-advised. In this respect we draw attention to the concept of the International Decade of Ocean Exploration which is intended to remedy the dearth of information on the resources and nature of the sea bed. When more data becomes available, this should lead towards a decision on the most appropriate regime to govern the development of the natural resources of the sea bed. The Committee feels that a useful function of the I.L.A. would be to endeavour, as far as possible, to ensure that in the formulation of any scheme which may ultimately be put into operation certain basic principles are observed. The most important of these will be discussed later in this report. In this regard the Committee urges that the Deep Sea Mining Committee of the I.L.A. maintain liaison with Governments and with industry, so that adequate cognizance may be taken of the technical, economic and accounting opinions which are relevant to the exploitability of the sea bed. It appears that the international discussion of this question is proceeding at two levels. At one level attention is being concentrated on the scope of the Continental Shelf Convention 1958, with particular reference to the provisions therein relating to the spatial extent of the continental shelf and the nature of the coastal State's rights over it. At a second level it is being concentrated on the forms of an international regime to control the exploration and exploitation of the deep sea bed, that is, the sea bed beyond the scope of the Continental 6 AUSTRALIAN INTERNATIONAL LAW Shelf Convention. It is believed that the two questions are so interrelated both legally and sociologically that any discussion of "deep sea mining" requires discussion of the extent of the continental shelf. This is specially so since much of the motivation underlying proposals for internationalization of the sea bed appears to be directed to cutting down the spatial extent of the continental shelf, either by generating enough pressure to influence State practice in the interpretation of the Convention, or by seeking amendments thereto. A cut-off margin to the continental shelf is thus implicit in all proposals of internationalization, and in particular in the financial calculations upon which the arguments of some of those proposals proceed. Indeed, the extension of the continental shelf to embrace the major part, if not all, of the world's offshore sedimentary formations in which hydrocarbons and many other minerals are to be found, could retain for the coastal States a substantial share of the benefits which are claimed by some to be the rightful heritage of mankind. At the same time it is necessary to comment on the existing law of the sea bed as the Committee sees it. The Committee considered whether it would serve any useful purpose to make reference to regional questions concerning the exploration and exploitation of the sea bed, and whether these would aid international consideration of a regime for the sea bed. The merit of a regional solution is that it might eliminate rivalry in sea bed activities between neighbouring States and make for their co-operation in the exploitation of the sea bed. In view of the recommendations contained in section III (b) of this report we feel that, although there are merits in a proposal to develop regional rules of international law and regional organizations to deal with the sea bed, such a concept could react adversely on those it is intended to benefit. A regional solution presupposes either a failure to reach agreement on a worldwide basis, or a positive move by certain States to avoid application of international rules to the deep sea bed within their own region. In certain parts of the world regional rules could be developed which could inhibit proper and long-term development of the resources of the area. This could furthermore specifically exclude land-locked States in a region from access to the deep sea resources of the region. Viewed from the standpoint of the potential explorer the rules to cover deep sea mining should, as far as possible, have universal application since any move to develop rules in isolation could lead to selection of those areas which offer the best financial terms but which are not necessarily, on technical grounds, the best areas to investigate viewed from a truly international aspect. This concept is not, moreover, in accordance with that which appears to be presently accepted in the United Nations. II The continental shelf (a) Geographical definitions and legal relationships.-As it was initially adumbrated, the continental shelf doctrine was conceived largely in two-dimensional terms, as a lateral projection of the coast for a specific distance, importing the subsoil by virtue of this extension. DEEP SEA MINING This resulted in some disengagement of the legal doctrine from the geographical concept, and therefore in some distortion of the generating principle. More recently legal theory has tended to conceive of the continental shelf as a three-dimensional entity, and so the tendency has been to restore the legal and geographical equation. This tendency is obvious in the judgments in the North Sea Continental Shelf Case. In this case the International Court of Justice held by a majority that the principle of equidistance, which in the Continental Shelf Convention is the criterion for dividing a continental shelf between States, is not a principle of customary international law, so that it does not bind non-parties to the Convention, unless it expresses in any one instance the factors inherent in the natural prolongation of the land. The Court said: : "The rights of the coastal State in respect of the area of the continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources." Because these rights exist by virtue of the twin factors of "sovereignty over the land" and the "natural prolongation" of that land, they are "inherent", and "no special legal process has to be gone through, nor have any special legal acts to be performed" for them to be enjoyed. Their existence can be "declared" but need not be constituted and does not depend upon their being exercised, so that if the coastal State refrains from claiming such rights, no other State may exploit that continental shelf. The Court rephrased its definition when it referred to a "notion of appurtenance", by virtue of which "the right of the coastal State to its continental shelf areas is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under the sea", and again rephrased it when it referred to the “fundamental principle" of the "prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State". This comes very close indeed to rationalizing the continental shelf on the basis of a prolongation of sovereignty, and this inference is reinforced by the reference which follows to the "underlying idea, namely of an extension of something already possessed". (b) Geological and geophysical considerations-the margins of the continents.-The submerged portion of the continental crust has been termed the continental margin (see diagram). It includes the continental shelf, the continental slope, and the continental rise or at least that part of it which is underlain by continental rather than oceanic crust. The continental shelf and slope together are often termed the continental terrace. The boundaries between shelf, slope and rise are breaks in slope (declivity), the outer (or lower) edge of the shelf being determined by a marked general increase in the angle of slope and the outer (or lower) edge of the slope by a decrease. The distances of these boundaries from the shoreline vary so that they cannot be used to define these boundaries. The depth of water at which the breaks in slope occur is also variable but within limits. This makes agreement on "average" depths at these boundaries feasible. Thus it is widely held that the 200 metre isobath approximates in many places the edge of the continental shelf. The base of the continental slope lies generally below 2000 metres, and the 2500 metre isobath has been shown on recent maps1 to "approximate in many places the toe of the continental slope". The abyssal plains are generally flat. Seamounts are “more or less isolated elevations of the sea floor with a circular or elliptical plan, at least 1 km of relief, comparatively steep slopes, and relatively small summit area".[2] Most of them are believed to be of volcanic origin. Guyots are submarine volcanoes with broad, almost level tops at depths of 1-2 km. Until recently, human activity beneath the oceans was confined to the sea bed, a surface forming a "natural prolongation” of the land surface, on and above which organic products could be gathered and structures could be erected. It could have been assumed that mining activities beneath the ocean, by analogy with those on land, are simply an extension of utilization of resources from the seabed to its "subsoil". This concept would imply that meaningful boundaries of jurisdiction could be drawn anywhere on the sea floor and extended vertically downward so as to establish boundaries or jurisdiction in respect of mining. Geological and geophysical exploration of the oceans has revealed facts with which the concept of an indefinite "natural prolongation" of land surfaces and their subsoil and its meaningful divisibility by vertical planes as extensions of horizontal boundaries into the "subsoil" comes into conflict. Mining is an economic activity based on geological and geophysical properties of the earth's crust. The crust under the continents differs fundamentally from the crust under the ocean basins. “The continental crust is richer in silica and the alkalis and poorer in iron and magnesia than the ocean crust. Although the continental crust averages about 35 kms in thickness compared with about 5 kms for the oceanic crust, its density is less. ... Oceanic crust... is largely composed of basalt and related rock, and, except near the continental margin where erosional debris may be present, it is generally overlain by no more than a few hundred metres of sediments. . . . The outer limits of the continental margin in many places are concealed beneath the continental rises...".[3] It follows that the "natural prolongation" of the continents may extend as far as the continental rise. Its outer limit may be determined by geophysical measurements or by bathymetric measurements. Geophysical data and information are not yet available in sufficient density to plot the outer edges of the continents. Bathymetric 1 V. E. McKelvey and F. F. H. Wang, World Subsea Mineral Resources, U.S. Geol. Survey Misc. Geol. Invest. Map 1-632, Washington, D.C. 1969, 17 pp., 4 maps. 2 H. W. Menard, Marine Geology of the Pacific, McGraw Hill, New York, 1964. 3 V. E. McKelvey and F. F. H. Wang, op. cit. |