o4 
Decision on the basis of some concept of public interest is another possibility. 
In part, this technique is used for the allocation of radio frequencies in the 
United States where the decision is influenced by the promises for socially 
valuable programming. For the resources of the sea floor beyond national bound- 
aries, the public interest might be expressed in terms of the need for income, 
the desirability of regional growth, the spreading of technology, or the closing 
of the gap between the “haves” and the “have-nots..”” While all of these are de- 
sirable humanitarian goals, they can probably be achieved more effectively 
through more direct means than by the allocation of exploitation rights.”° 
The third techuique is that which was adopted in the opening of the western 
United States, when prospecting was done by individuals with rudimentary equip- 
ment. Under this system, exclusive rights are acquired by the first to stake the 
claim. The government registers and guarantees the claim and may require some 
degree of performance by the exploiter in order for him to maintain his claim. 
Once claims are established, they can be bought and sold and, thereby, reallocated 
by the market. 
The use of this technique to allocate rights to the minerals of the sea floor 
would be accompanied by many difficulties both in the initial stages of develop- 
ment and over the long run. In order to prevent a headlong race to acquire rights 
to vast areas of the sea floor, some form of international authority and some in- 
ternational rules would have to be established. This is discussed in more detail 
later in reference to the flag nation alternative. The major difficulty, in terms of 
efficient allocation of rights, is that this technique provides no method for choos- 
ing among claimants for the same or overlapping areas. In view of the size of 
areas required and the wide range in values of areas, such conflicts are likely 
to occur relatively soon after development gets started. 
“Tf expeditions from too many nations cluster too close to the honey pot. the 
resulting disputes, initially at least, are going to be settled by accommodation 
among the competing states, or by the evolution of adversary case. law.” it TAs, 
where competition occurs, this technique would resort to allocation by power or 
by some concept of public interest or equity. “initially at least’. It is not clear 
from Ely’s paper, what would evolve beyond that—what would happen in the 
long run. 
The fourth technique for allocation would be to set up a market for the execlu- 
sive rights. This is the technique used by the United States for the oil resources 
of the continental shelf. Individual firms and groups of firms bid among them- 
selves for exclusive rights to resource areas, and the bids reflect (albeit roughly ) 
the value of those rights. 
For such a market to be established for the minerals of the sea floor beyond 
the edge of the continental shelf (however defined), there would have to be a 
greater degree of international authority and international rule than for any of 
the other allocating techniques. However, in principles, the market would be the 
most efficient and least arbitrary method for the allocation of exclusive rights. 
Those firms capable of the most efficient exploitation should be able to outbid the 
less efficient exploiters. To be sure, any such market is likely to be constrained 
by non-market factors which may tend to reduce the efficiency of allocation. 
Some of these constraints may be desirable (e.g. the avoidance of pollution) and 
some may be inevitable (recognizing that man is not necessarily an economically 
rational animal). But even with these constraints, allocation by market would 
be less arbitrary than by any of the other techniques. It is suggested. therefore. 
that the best means for meeting the criterion of non-arbitrary allocation of ex- 
elusive rights is through a market similar to that for the oil resources on the 
U.S. continental shelf. 
83 Acceptability as a separate criterion May seem unnecessary and redundant. 
since tenure of exclusive rights is so clearly dependent upon rules that will not 
he violated. But some alternatives have been suggested that are so obviously un- 
aceentable that it seems worthwhile to emphasize that other nations will have an 
influence on the formulation of rules.* In addition, the criterion of acceptability 
18 T+ cheuld be emphasized that this refers only to the allocation of rights i 
not ta the distribution of revenues obtained from these rights. Ehts te sexnlaes 
17 Bly, op. cit., p. 000. : 
18Te recognition of non-United States influence on rules is simply a reflection of 
reslitr. It does not imply that the resources of the sea floor are res communes and not res 
nullius. The distinction between these two points of view provides the basis for some 
absorbing legal arguments, but these arguments are not likely to have much influence 
on the decisions. 
