56 
of the appropriative right unless and until a neighbor sets up operations close 
enough to create friction.” ~ 
This system assumes that the prevailing jurisdiction that a nation has over 
one of its vessels can be extended down the dredge line and through the dredge 
to cover an unspecified area of the floor of the sea (or in the case of oil, down 
the drill, through the floor of the sea, and into the pool of oil). Since the con- 
nection between jurisdiction over a vessel and jurisdiction over the sea floor 
is tenuous at best, this system would presumably require some affirmative decla- 
ration on the part of the flag nation; i.e., a declaration that would assure the 
entrepreneur that he would be protected in exploiting a sufficiently large area for 
a sufficient length of time to get an adequate return on his investment. 
I will leave to the lawyers the several interesting questions of law that are 
raised by this approach. Instead, I will examine one of the fundamental assump- 
tions (that is questionable from an economic point of view) and discuss the 
alternative in the light of the criteria suggested above. 
Ely states that “there is plenty of room on the world’s deep seabeds.” Hugo 
Grotius advanced the principle of the freedom of the seas, in prrt, because of 
the apparent inexhaustibility of the resources. And McDougal and Burke have 
stated that the resources of the sea are so vast that they can be shared by all 
to the detriment of none.” If this is true, then the resources are free goods (like 
the air we breathe) ; there is no incentive or need for the acquistion of exclusive 
rights; and the property has no price. This condition has certainly not proven 
correct for marine fisheries. Indeed, the principles of the freedom of the seas 
is the primary cause for the gross physical and economic waste that has accom- 
panied the exploitation of fisheries.” 
For the condition to exist for the minerals of the deep sea there would have 
to be uniformity of value for resources sites over vast areas. That is, there would 
be no significant variation in the costs of obtaining and extracting the desirable 
minerals no matter where they occurred. This is highly questionable. As indi- 
eated above, the range in value for the different areas in which manganese 
nodules occur is probably as great as the range in value on land. This, plus the 
large size of area that an enterprise would want to hold, will inevitably lead 
to competition for the high valued sites. In short, there is not plenty of (eco- 
nomic) room; the resource sites will have a price; and exclusive rights, clear 
in extent and tenure, will be necessary. 
But the difference of opinion is not so much about the inevitability of the re- 
sults as it is about the timing. The “plenty of room” approach assumes that 
there will be plenty of time to work out rational administrative and management 
schemes in the future. The danger of this approach (even if it is not challenged 
by other nations) is that the assumption may be incorrect, and that our actions 
will have established principles and set patterns that will be difficult to change 
and that may be detrimental to our interests. 
With respect to the criteria, this approach provides no clear cut guarantee of 
exclusive rights, either in extent or tenure. Many entrepreneurs may be unwilling 
to bear the risks that would be associated with this lack of clarity. 
The approach provides no means for non-arbitrary allocation of exclusive 
rights. To settle disputes “by accommodation among the competing states” is to 
leave the entrepreneur to the mercy of diplomats who are subject to all sorts of 
pressures; not just those of protecting the interests of the entrepreneur. 
The acceptability of such an alternative is doubtful. Assuming that a nation 
is willing to declare that it has jurisdiction—or sovereignty—over a segment of 
the sea floor that is being exploited by one of its nationals, how would other 
nations react? If they ignore the implicit provision that jurisdiction can only be 
acquired through actual exploitation, the race would be on to assert claims to 
vast areas of the sea floor. If that provision is accepted, then nations not antic- 
2Bly, ‘The Laws Governing Exploitation of the Minerals Beneath the Sea,” a paper 
presented before the New York Section of the American Institute of Mining, Metallurgical 
and Petroleum Engineers, New York, January 13, 1966. 
2% MeDougal and Burke, The Public Order of the Oceans (New Haven: Yale University 
Press, 1962), pp. vii—viii. 
2 See n. 15 supra. The long list of depleted stocks of fish continues to grow. It includes 
the whales of the Antarctic; tuna of the eastern Pacific and now of the Atlantic; salmon 
throughout the world; cod and haddock of the Grand Banks; halibut off Northwest 
America; herring of the North Sea; shad; sturgeon; and a host of other stocks of fish. 
Depletion has been controlled in some cases by forcing the adoption of inefficient fishing 
techniques, thereby worsening the already wasteful applications of capital and labor. 
These consequences will continue to worsen until some form of property right (perhaps 
through controls on the number of producers) is established. 
