The unpleasantness in the Gulf of Sidra may not be another Gulf of Tonkin in United States military history. But it is a desperately relevent sign of the times. It illustrates all too clearly that when nations push their jurisdictions out into the open sea, new kinds of international conflict will follow the national flags.
That one-minute shoot-out between Libyan and US warplanes this week illuminates why we need an international Law of the Sea. The Libyans think the Gulf of Sidra is "their" territorial sea, and consequently "their" airspace, too. The US doesn't recognize that claim -- challenged it, indeed, by scheduling a naval training exercise in the area. (Thirteen years ago the North Koreans also claimed the Pueblo was inside their 12-mile limit; the US rejected the 12-mile claim and said the Pueblo was outside of it anyway.) In this dangerous game there is no umpire, because their are no agreed rules.
Rules of the game have been written -- not yet signed and ratified -- during the years- long Third United Nations Conference on the Law of the Sea, nicknamed UNCLOS III. But even the draft treaty amounts to an enormous "sea grab," to which the US is a party. The ocean commons -- the "international waters" in which we say the Nimitz battle group was sailing -- has been shrinking very fast , and with US acquiescence.
The starting point for UNCLOS III was a 1970 UN General Assembly resolution, endorsed by the United States, declaring the oceans to be "the common heritage of mankind." Yet the one subject on which consensus has eluded the marathon negotiators is the governance of the ocean commons.
Instead, a very large part of that commons has been chopped up into 12-mile territorial seas, 24-mile contiguous zones, 200-mile exclusive economic zones, and definitions of the "continental shelf" that can run out to 350 miles and plunge as deep as 2,500 meters below the surface, depending on the geological formation.
Of the 120 coastal nations 89 have already staked out 200-mile zones. Many of the world's statesmen, lawyers, and entrepreneurs are already acting as though these zones were both legal and policeable. They may well become "legal, " by custom if not by treaty. The United States cannot even police its own land borders; most of the lines lawyers have drawn in the world's waters will never be policeable.
There will be a growing need for international attention to national conflicts touched off as the few technologically powerful nations rush in to "help" the weaker nations manage their vast 200-mile economic zones or themselves decide to exploit the ocean's riches in theoretically exclusive but readily accessible stretches of open water. (Under the draft treaty's archipelagic formula, the Philippines would add 148,921 square nautical miles, and Indonesia, a nation of 13,000 islands, might add as much as 666,000 square nautical miles to their jurisdictions.)
The long-running ocean law talks (one expert calls them "an international version of single-issue politics") have thus moved into national jurisdiction, if not control, most of the traditional marine resources. With exceptions here and there (the Pacific islands, for one) the resulting bonanza is for the account of the already affluent nations.
In the short run the most important consequence of the 1970s' great sea grab will be to move into national jurisdictions 90 percent of the oceans' fish, and thus to nationalize most disputes over who gets to catch whose fish.
Even the "highly migratory species" -- such as tuna and salmon which cavalierly ignore the lines man carefully draws in the water -- are being subjected to national jurisdiction. Congress has now legislated that salmon spawned in US rivers carry their American citizenship wherever they swim. But the Coast Guard, even if reinforced by the FBI's computers and the US Navy's gunships, will never catch up with most of the foreigners who catch made-in-America salmon as they travel the open ocean.
The sea grab also nationalizes most of the remaining known deposits of offshore oil and gas. There may be long-range potential in energy that vents from fissures in the earth's crust under the deep ocean. But under still- international waters, the most obvious and most controversial resource is the rich deposits of those other exotic minerals, the manganese nodules. They still belong to nobody, or everybody.
Seabed mining of manganese nodules seemed just around the corner a decade ago. It is probably farther from that corner today. The key constraint is uncertainty about the rules of the game.
The UNCLOS majority of weaker nations wants the UN to be a "playing umpire" -- both regulating the mining and doing some or all of the mining through an international enterprise. The big industrial nations prefer freedom of the seas , which has always worked best for the technologically strong.
The Carter administration's ocean law negotiator, quietly persistent Elliot Richardson, always on top of the legal and technical complexities, crafted a workable compromise behind the smokescreen of confrontation over the seabed mining issue. Richardson remains as chairman of the US delegation's non- governmental advisory committee, but the Reagan administration's new negotiator, nuclear specialist James L. Malone, so far has authority only to stonewall the treaty.
The stonewalling tactic hasn't worked. The bright and notably moderate leader of the developing countries, former law school dean T. T. B. Koh, Singapore's ambassador to the UN, has already predicted that if the big industrial democracies decide to move ahead on seabed mining with a "mini treaty" among themselves, the "developing and socialist countries" might proceed to adopt anyway the draft that has come out of UNCLOS III.
Tommy Koh spells out the consequences in a lawyer's understatement: "There would be a mini treaty signed by some five industrial states and a maxi treaty signed by over 100 states. If the developing countries decided to take the matter to the International Court of Justice, the court might rule in favor of the maxi side, holding that the national laws in question were contrary to international law. In that event, those who had developed the extensive seabed mining technology involving major economic investments would not obtain the kind of legal security which was necessary for risking venture capital."
What actually happens will be decided in the board rooms of the great international companies. They have to think about investing a billion dollars per mining operation without knowing for sure who might lay claim to the resulting minerals. For them, disagreements about the rules of the game have a calculable importance -- measured by the losses that delay and uncertainty would entail. The current absence of excess demand for the minerals involved (nickel, copper, cobalt) also slows things down. But even when world industrial growth sharpens the appetite for hard minerals, the potential for conflict, in the absence of agreed ground rules, may especially deter the oil giants and other multinationals for whom seabed mining, big as it may be some day, is only a sideline today.
A major factor in ocean development -- so new that its governance wasn't really debated in the Law of the Sea negotiations -- will be OTEC, Ocean Thermal Energy Conversion.
This is the idea, proved out in Hawaii's "mini-OTEC" experiment only two years ago, that substantial differences in temperature between ocean surface and deep waters can be converted into energy by pumping the cold water to the surface. The electricity such a system makes possible can be used either directly (for processing operations at sea or on nearby islands) or indirectly (for powering the local production of synthetic fuel from seaborne coal or for producing energy in transportable form).
While there will eventually be applications of OTEC in many parts of the world, it is quintessentially a "Southern" and a Pacific resource. John Craven, Hawaii's marine affairs coordinator, told the Tokyo workshop that most of the best places for OTEC, which needs 5,000-6,000 feet of depth and will be optimal in tropical waters, are either clearly in the high-seas commons or in the claimed economic jurisdictions of developing countries, including, especially, islands in the South Pacific. OTEC does not have to be a large central system; the resource could be adapted to the power needs of an island nation orm a large (e.g., synthetic fuel) operation.
The thermal-conversion potentials are theoretically enormous. In the world's oceans between latitudes of 20 degrees on either side of the equator, some 1,000 quads (quadrillion British thermal units) per year are quietly unexploited today -- three times the current world demand for energy, perhaps one-third of world energy demand 100 years from now.
As with other forms of "solar" energy, the time-scale for OTEC development will be long. But you have to look more than 20 years ahead for significant development of all the really important alternatives to oil as the world's dominant energy source. (The one exception is conservation, which can be done right away.) If development doesn't start now, we will still be overdependent on dwindling pools of oil even in the first part of the 21st century.
The environmental effects of OTEC may actually be positive. In Tokyo this summer, a Japanese expert sketched for an international workshop how the nutrients brought up from the deep sea along with the cold water could be used to produce biomass that could be the basis for producing energy (in the form of methane) or food from aquaculture. The nutrients brought up as an OTEC byproduct could be an environmental "problem" -- for example, by overstuffing an inland sea with food as in the eutrophication of some lakes. But they might better be considered as the basis for a new technology-based biomass industry. (That still leaves some interesting uncertainties. If nutrients are brought up from the deep-ocean commons, who is entitled to the resulting biomass, who owns the resulting methane?)
Energy from the ocean thermal gradient is an inherently "Southern" resource, but it can be exploited only by advanced technology from the "Northern" industrial world.
Inside the 200-mile zones, the development of ocean energy can be regulated by national laws (as in the OTEC operations now being planned by the Japanese for Okinawa and by General Electric, Lockheed, TRW, and the local utility for Hawaii), or by arrangements between the island "owners" of the warm tropical waters and those who have the technology and capital to make energy out of the thermal gradient.
But on the high seas, some international rules of the game will sooner or later be needed to regulate OTEC "grazing rights."
Again the road divides just ahead: conflict, or cooperation?
The tension between conflict and cooperation will lead to a widening web of international regulation, treaty or no treaty.
The idea of the oceans as a commons will not go away. Nor will it be relevant only to "the hole in the doughnut" -- that is, what's left after all the seaward extensions of land- based jurisdictions. Nations have an inherent obligation to exercise authority in their offshore zones in ways that take the interests of other sovereign nations into account. That obligation will increasingly be translated into law, whether by formal pacts or customary acts.