§ 3.9 p.m.
§ THE LORD BISHOP OF NORWICH rose to move, That in the opinion of this House, it is desirable that the seabed, beyond the limits of national jurisdiction, should be administered as a common heritage of mankind, and a world ocean régime should be created to that end through an international convention. The right reverend Prelate said: My Lords, noble Lords will have noticed that there are two Motions on the Order Paper, one in the name of the noble Lord, Lord Kennet, and one standing in my own name. I suggest—and I have Lord Kennet's agreement to this—that it will probably be for the convenience of your Lordships' House if one debate takes place on both Motions.
§ In introducing the Motion standing in my own name on the Order Paper, I should remind your Lordships that the seabeds are the only parts of the surface of the earth—and very sizeable parts—which lack an agreed form of jurisdiction. Now that they are open to the exploitation of resources whose value is still largely unknown but may prove to be very considerable, this, in the absence of an agreed régime, adds a potential threat to an "uncontrolled, unrestrained Klondyke over five-sevenths of the earth's surface", as Mr. Peter Archer said in another place in July, 1968, and, in consequence, inevitably a potential threat to international peace and understanding. It also offers, on the other hand, a potential opportunity for a new move for co-operation by the peoples of the world.
§ The United Nations' Seabed Committee, after months of difficult and arduous work, have reached an agreement on what the issues are and this has perhaps been sufficient to maintain confidence that eventually a treaty will be signed, even though no agreement has yet taken place and it may be some time before this can be secured. There is still room for assessment of the proposals which have been made, and room for fresh initiatives, and I am therefore glad that we are being given the opportunity to discuss this matter again in this House. The last occasion was July 2, 1969, in a debate initiated by the noble and learned Lord, 133 Lord Wilberforce—and I am delighted that he is taking part in the debate this afternoon.
§ As this debate has drawn nearer, I must confess that I have become increasingly conscious of the complexities and the difficulties involved. I am therefore all the more thankful to see the list of those who have put down their name to speak in this debate, for they will bring to our consideration a range of knowledge and authority greater than I possess. I am especially glad that the noble Earl the Leader of the House and Lord Privy Seal, Lord Jellicoe, will reply on behalf of the Government, for, in addition to personal reasons, his doing so underlines the significance which Her Majesty's Government give to this subject.
There might be some who would claim that the ocean deeps had better be left undisturbed as the home of the mythological Leviathan,
a seven-headed monster, a slippery, twisting creature, dangerous to rouse and futile to seek to tame.
But Leviathan's territory was probed for the first time in a systematic way nearly a hundred years ago by the voyage of the "Challenger" of 1873 to 1876. One of the most interesting discoveries of this epic circumnavigation of the globe was the recovery of black hydrous nodules of manganese oxide from the floors of all three oceans. Exploration of the ocean deeps has continued and has been particularly active since the war. The desire to exploit whatever wealth can be wrested from or under the seabeds has followed not unnaturally in its wake. Yet we are left without any agreed system of jurisdiction, other than the 1958 Geneva Convention of the Continental Shelf, which grants to the coastal States the administration of the off-shore area to the depth of 200 metres or beyond that limit where the depth of the superjacent waters admits of the exploitation of the natural resources. As there appears to be no limit to the exploitation of the natural resources, this open-ended concept would eventually carry the authority of the coastal States to halfway lines in the great oceans, which is manifestly absurd.
§ The question arises as to whether authority of coastal States can be redefined by a criterion more limited than that of exploitability, and, if so, what that 134 criterion should be. Some States have tabled proposals for a régime beyond the limits of national jurisdiction and have suggested where those limits should be drawn. Others are making independent claims to suit their own circumstances without seeking common agreement. The present state of affairs, therefore, is not only complex but also confused. And as there is so much at stake the plea for an international convention would seem to be both necessary and urgent. If it be asked, "How urgent?" one must surely admit of immediate urgency so far as oil drilling beyond the Continental Shelf is concerned, while to judge by the account of Deep Sea Ventures in the October issue of Ocean Industry, which starts with the sentence, "The nodules are coming up the pipe", we have the aims set out for a project which by 1974 would, it is estimated, be capable of dredging from a depth of up to 18,000 feet 1 million tons of these nodules a year for processing; the minerals competing in world markets by the following year, 1975, with minerals dug from the ground by conventional mining operations. How this would affect the disparity between developed and underdeveloped countries I would not indicate and do not know.
§ I should like to start by urging upon your Lordships the widely known proposition given by Ambassador Pardo of Malta, in 1968, against the background of three dangers arising from the exploitation of the ocean deeps: first, the threat by military installations on or above the ocean floors—and the recent news reported in The Times on November 18 concerning the treaty to ban nuclear weapons from the seabed gives some encouragement, even though it still begs many questions; secondly, the increased threat to the pollution of the seas, when already the oceans are being treated increasingly as a dumping ground, and thirdly, a threat that the exploitation of the seabeds would widen the gap between developed and undeveloped countries.
Let me remind your Lordships of the principles enunciated by Ambassador Pardo. He writes:
to declare the deep ocean floor be conserved as the common heritage of mankind … through a treaty embodying the following principles: that the seabed beyond the limits of national jurisdiction
§ Some people tend to write off Ambassador Pardo's concept as impracticable. I do not believe this to be true, although it certainly requires amplification and clarification; and I am not pretending that it will be easy to achieve, even then.
When I told one of my theological lecturers in 1931 that I was going to theological college he said, "One foot on earth and one in Heaven, I suppose!" I do not know whether he thought I was about to do the splits, but I should like to think that one could keep both feet together—and this I think is contrary to the views expressed by Mr. Enoch Powell—or perhaps in this case use both legs, the idealistic and the practicable, for swimming out of one's depth and a long way from the shore. Even if the present political organisation of the world casts a heavy shadow upon any desirable solution, a case for endeavouring to define a solution commensurate with the needs of mankind is all the more important. As the noble and learned Lord, Lord Wilberforce, said in the debate of July a year ago:
the unique character of this problem gives an opportunity to the world and the common good for a break-through from sectional interests, and it gives us some chance to eliminate the rich-poor gap."—[OFFICIAL REPORT, 2/7/69; col. 652.]
The sectional interests are primarily those represented by different Governments, but there are also those interests which want to make use of the sea for fishing, for mining, for defence purposes, or as a highway, and there is no doubt that an acceptable system of enforceable decision-making on a global scale so as to harmonise all these interests is clearly necessary for ocean space as also for the human race.
§ To achieve this, the objective of the seabeds being held as "a common heritage of mankind" is, I submit, not only a very imaginative concept but a moral necessity. But the term needs clarification. I understand the phrase "com- 136 mon heritage of mankind" as applied to the seabeds to mean that this area of the world would be administered as an exercise in disinterested trusteeship—and the emphasis must be on the word "disinterested"—with the intention that so far as possible mankind as a whole should reap the benefit. This is not the same as to equate common heritage with common ownership, but rather a means of equitable access, or at least equitable advantage by the peoples of the world, whether they live in coastal States, landlocked States, developed countries or developing countries. This idealistic concept of the common heritage of mankind has been widely adopted: by Her Majesty's Government, by President Nixon, by the Pacem in Maribus Conference in Malta, by the U.N. Seabed Committee, by U Thant and by others. I understand it still has no juridicial meaning and I hope this present debate may indicate the way in which this phrase can be given legal and institutional significance.
§ Meanwhile there are four enormous question marks over the whole subject. First, what is the area "beyond the limits of national jurisdiction"?—that phrase which settles nothing and is always repeated. As the oil men say, "Where does mankind begin?". Secondly, are the proposals which have been tabled by the United States, the United Kingdom, France and others likely to achieve the aim of benefiting mankind as a whole? Thirdly, can the world ocean régime confine itself only to the administration of the seabed in exclusion from the superjacent waters? Fourthly, can a desirable régime be created by an international convention if the parties taking part in that convention are exclusively representatives of Governments?
§ As regards the first question, the Nixon proposals recommend that all nations should renounce their national claims beyond a depth of 200 metres and that seaward of this limit the natural resources should be regarded as a common heritage of mankind. But as part of this scheme the coastal nations are to act as trustees for the international community for that part of the seabed within the Continental Margin—that is, the part immediately seaward from the Continental Shelf but very extensive in area. This is likely to be the richest region of the seabed as well as the easiest to exploit.137
§ Unfortunately this proposal recommends that coastal States would receive a share of the international revenues from this zone for which they act as trustees, and also they could impose additional taxes, if these were deemed desirable. I venture to submit, my Lords, that this is not a disinterested trusteeship. Although the trustee will be required to hand over some of the revenues collected for the benefit of mankind, a coastal State will stand to benefit enormously. It would be a robbery from the common heritage of mankind if the proposal for an international trusteeship zone of such a type were accepted as a permanent arrangement, and I believe undesirable as a temporary arrangement.
§ The proposals by the United Kingdom and France do not, as I understand them, specify the limits of coastal jurisdiction, and I should like to ask the noble Earl, Lord Jellicoe, when he replies to this debate, to say whether or not Her Majesty's Government are in favour of the Nixon international trusteeship zone. Mr. Gallacher, representing the United Kingdom, in his statement to the Committee on the peaceful uses of the seabed, appeared somewhat guarded. He said that the United Kingdom "would be glad to give President Nixon's concept positive consideration". I am not an expert in such matters, but if a layman may venture a view, the most important attribute for a frontier is for it to be clearly and precisely defined, and if it is a question of the limit being fixed either at the top of the Continental Slope—that is to say, at the 200 metres isobar—or at the bottom of it, then the former is preferable, for two reasons. First, it can be more precisely defined, but, more important still, it would not deprive the land-locked or Continental Shelf-locked States of a share in the benefit in what would appear to be potentially the most profitable area of the seabeds beyond the Continental Shelf.
Professor Henkin at Malta asked:
Why does the coastal State need all the control that this proposal"—
and he was referring to the Nixon proposal—
gives it? There is no reason why tile interests of the coastal State should prevail over those of the world community any more than those of the technologically advanced nations?".
The same viewpoint is expressed in the United Nations Seabed Committee report of August, 1970, where, when advocating international machinery for this area which they suggest should be promoted, they say:
Irrespective of the geographical location of States, and taking into special consideration the interests and needs of the developing countries".
§ Meanwhile from South America comes a completely different principle, the claim here being for jurisdiction by the coastal State 200 miles from the shore, including the superjacent waters. Canada, in seeking to preserve the Arctic sea from pollution, claims 100 miles from the coast North of the 60th Parallel. We are now faced with at least five different proposals—five different proposed boundaries where the limits of national jurisdiction are to be set. Can we really not do better than this?
§ Now I came to the second question, namely, as to how far the régimes proposed by the United Kingdom, the United States and France are likely to achieve the aim of benefiting mankind as a whole. I am sure that other speakers in this debate will wish to discuss these proposals in greater detail. I understand that the régime seeks to extrapolate the grid system which works so well, for example, in the North Sea, to the whole ocean floor, but with this vital difference: instead of the squares or blocks being concessions to non-Governmental operators they will be allotted exclusively to Governments. But at this point I wish to ask a question for clarification by the noble Earl the Leader of the House. In the working paper presented by the United Kingdom Government to the United Nations Seabed Committee in August, 1970, in addition to non-exclusive prospecting licences the exclusive licences would be allocated in blocks, which I take to be essentially similar to the grid system. But Mr. Gallacher in his statement on August 14 to that same committee made it clear that the ideas contained in the United Kingdom paper are intended to be purely exploratory and that they are not to be regarded as those to which the Government would be formally committed. The noble Earl, Lord Jellicoe, in his reply to a supplementary question by the noble Lord, 139 Lord Brockway, on November 4, indicated that the Government were not committed to a block system. I should be grateful if the noble Earl is in a position to comment further upon this.
§ The questions which I think need to be asked are these. First, what prevents disputes under such a national system, whether of blocks or of allocation of particular resources in particular areas to national Governments, from becoming international disputes? Does not this system of allocating to national Governments clearly invite national rivalry? Secondly, how do you disentrench Governments from their occupation of blocks or particular licences after the period of the concession is over? And, thirdly, is not the principle of allotting blocks, as indicated in paragraph 8(c) of the United Kingdom Working Paper, rather like a lucky dip, and, as such, if not morally indefensible, at least morally illogical?
§ The third question which hangs over this whole subject is: Can a world ocean régime confine itself only to the administration of the seabed and exclude the superjacent waters? The Motion that I am putting before your Lordships' House asks that a world ocean régime (these words were very deliberately chosen) should be created, and not a world seabed régime, because the oceans constitute a unified global eco system. The fact that the exploration of the seabed gives rise to the dangers of pollution in the superjacent waters is surely sufficient in itself to show that the sea-beds cannot be considered in isolation. The same argument applies to military factors—indeed, to the policing of any area of the ocean bed. If you are going to drill in a certain area you need to keep out other ships, including fishing vessels. The scientists at Malta emphasised that the ocean environment should be considered as an indivisible ecosystem regardless of political boundaries, and that is implicit in this Motion.
§ I should like to turn now to the fourth question which is raised by this whole subject; namely, can a desirable régime be created by an international convention if the parties taking part in that convention are exclusively representatives of Governments? The American, British and French proposals all believe that only Governments should be recognised 140 as members of any ocean régime, and they are supported in this by the Russians. This no doubt springs from the belief that Governments can be made accountable. But if Governments, and Governments alone, are made the concessionaires, as proposed under the British and French plans, with the allocation of national blocks or areas to national Governments, including the land-locked ones, then all over the world the oceans will look like the North Sea but with every oil concession boundary turned into a frontier with a potential of international conflict. Are we not in danger of projecting on to the sea the conflicts of the past 7,000 years? Surely it would be better to have no ocean régime than one which could exacerbate human relations for hundreds of years to come.
§ It is one thing to criticise the propositions of Governments which have taken pains to give flesh to the concept of the "common heritage of mankind" and for the reasons I have tried to give, have, in my view, been only partially successful, without putting forward some suggestions as to how these could be improved upon. I hope some headway may be made with this by those who will be taking part in the debate this afternoon. For my own part, the kind of régime that I think is called for, if we take everything but the shortest view follows the thinking on the reports and papers from the Pacem in Maribus convocation prepared by Mrs. Elizabeth Borgese, and supported, with modifications, in a subsequent paper by Professor Neil Jacoby, of the University of California.
§ This starts from the premise that because the oceans constitute a unified global system their problems cannot be resolved by national actions, and that what is required is a supranational or extra-national authority regulating ocean usage and resources in the long-term interests of all mankind. It is, in effect, the establishment of a world government for the ocean deeps. That this would involve difficult problems—scientific, military, legal, political and economic—is undeniable. But to a layman in such matters it would seem that the difficulties are no greater nor less practicable than those encountered by the propositions which place international control on national activity.141
§ These Borgese proposals embody the following concepts. First, that coastal States possess no special or inherent rights in the adjacent oceans and seabeds. Secondly, that the organisation of the ocean régime be built on a model designed to embrace the functions of maintaining peace and order; the enforcement of safety and anti-pollution rules and regulations; the conservation of exhaustible resources; the conduct of scientific research; the issuance of licences and concessions to enterprises for ocean exploration and production activities; the collection of royalties and taxes, and the adjudication of maritime disputes between nations and enterprises. And it should be, at the same time, a model which accords due weight to the interests of all nations and of the scientific and commercial organisations concerned with the seas.
§ An important feature of the Borgese proposals is that the maritime assembly to which the legislative functions would be entrusted, in addition to including a political chamber appointed by the General Assembly of the United Nations, also provides for three other chambers: one representing mining and mineral interests, a second representing fishing and acquaculture interests, and a third representing scientific interests. The direct representation of bodies, composed of those who have a common interest, experience and expertise in the activities to be controlled by the régime would seem more likely to gain wisely based agreement and judgment than an inter-Governmental body, which is, in the nature of things, less likely to be disinterested.
§ As regards the finances required, Mrs. Borgese has proposed that a beginning be made by a 1 per cent. ocean voluntary development tax on ocean projects, to cover living and non-living resources, as well as services such as shipping, no matter where production takes place. Such a proposal, I understand, will be introduced in the United Nations Seabed Committee next March, with a view to providing a constructive alternative to the Nixon proposals. As regards the word "tax" in this context, what I understand is envisaged is an obligation to pay, analogous to the 1 per cent. G.N.P. contribution to the developing countries, which is now widely accepted.142
§ It has been suggested that the creation of a separate organisation along the Borgese model would require yet another huge and costly bureaucracy. I would submit that this argument has been greatly exaggerated. In the first place, it will be necessary in any event to set up a separate organisation to establish an ocean régime, whether it is inter-Government controlled or controlled in the way analogous to the Borgese model. In the second place, Mayor Lindsay of New York and President Hambro of the United Nations General Assembly, have recently pointed out that the United Nations annual budget of 167 million dollars is less than that of the New York Fire Department, and indeed the budgets of certain American universities.
§ Any régime which is adopted, if it is to have regard to the interests of mankind as a whole and to posterity, would need to spend a large, if not a major, part of its revenues during the early years of its existence on scientific research and ecological development aimed at expanding man's knowledge of the oceans and their ecology; on developing methods of controlling pollution; on conserving resources and on reducing costs of producing ocean commodities. An ancillary requirement worthy of a high priority would be the development by the régime of an adequate security force, an ocean guard or a sea guard, capable of enforcing its regulations, detecting violators and bringing them to justice. This inevitably will affect the profitability of an ocean régime and highlights the question of how the observance of the régime's regulations can best be monitored and enforced. Here we are obviously up against one of the biggest problems of all in any form of régime.
§ All the difficulties which have confronted the United Nations in creating, or failing to create, a United Nations Force in Suez, the Congo, Cyprus and the Middle East, confront the formation of an ocean guard, the main one being where there is no political will by Governments to create it, or maintain it once it has been created.
§ In Her Majesty's Government's Working Paper on August 4, 1970, the statement is made that the international body might have the right, under clearly 143 defined arrangements, to inspect operations which are being carried out, to satisfy itself that required standards were being observed. But to judge by the experience of the famous international whaling commission, where the factory ships had two inspectors on board, the result does not breed much confidence. The whales have become well nigh extinct. The general ineffectiveness of measures confined to inspection, to detect backsliding or infringement of regulations is pointed up in the case of the oil spill in the Gulf of Mexico in March, 1970, when the State of Louisiana talked of filing a suit against the United States Federal Government for failing to police the area properly. I believe that a monitoring system could well emerge from a series of satellites which Dr. Payne, of the National Space Programme, has recently described on television, for there would appear to be enormous surveillance and monitoring possibilities through satellite systems. But whatever the method of surveillance, this still leaves open the question as to what form of military backing an ocean guard would require. And how would it be composed?
§ I hope that others speaking in this debate may help provide some answer to these questions. But is it too fanciful to suppose that a "Securicor", or self-help type of enforcement, could lead the way and gain on a wider scale the type of authority which has enabled the International Cable Protection Committee, operated by 21 cable owners, to function effectively since 1950? Enforcement of such a kind is I would submit, much more likely to prove mutually acceptable, and therefore effective, when it is operated not on behalf of a proliferation of national Governments but on behalf of the functional needs of those undertakings which are going to explore and exploit the oceans on behalf of mankind.
§ My Lords, to summarise, I believe that any world ocean régime must look to the long term, not the short term, future of the human race. That is why I would contend that it should open an avenue to world government. Secondly, its limits should not favour coastal States. Thirdly, the régime beyond the limits of national jurisdiction should embrace the 144 whole ocean eco-system. Fourthly, I fear that the proposals of Her Majesty's Government, France and the United States, while making use of the phrase "the common heritage of mankind" have a long way to go adequately to fulfil this concept, and I suggest that far more serious attention be paid to the principles inherent in the Borgese proposals.
§ It may be alleged that these do not take adequate account of international or legal precedents, or that they do not give adequate regard to profitability—and here I would say that any régime must make it worth while for companies to operate, where highly sophisticated technical knowledge and expertise are required and costly equipment is involved. But I would simply plead that profitability be matched by, and indeed subject to, the good of mankind as a whole. If the will be present, the Spirit of Man can raise political power to the level of responsible statesmanship and commercial profit to a beneficent stewardship of the God-given resources of the world. I believe that there are opportunities to demonstrate that will in the Motion now before this House. My Lords, I beg to move.
§ Moved, That in the opinion of this House, it is desirable that the seabed, beyond the limits of national jurisdiction, should be administered as a common heritage of mankind, and a world ocean régime should be created to that end through an international convention.—(The Lord Bishop of Norwich.)