the deep seas belong to nobody (res nullius), 

 anyone may extract them and even acquire, by 

 occupation, the right of permanent, exclusive 

 access, for all purposes, to the submarine areas 

 containing them.^* If, on the other hand, these 

 resources belong to everybody (res communis), no 

 one may extract them without permission from 

 the international community.'^ Yet it is also 

 reasonable to take res communis to mean only 

 that no nation, by occupation, may claim the right 

 of permanent, exclusive access to the submarine 

 areas in question. 



In short, the inferences one draws from either 

 res nullius or res communis are likely to depend 

 upon the results one prefers. Nor need these 

 results be the same for all resources or uses of the 

 oceans. For example, the fact that fish are a 

 mobile and replenishable resource and minerals are 

 immobile and exhaustible may lead to a view of 

 either res nullius, or res communis which is 

 different for the one resource than for the other. 



Most international lawyers seem to agree that 

 any State is free to engage in exploration and 

 expolitation of mineral resources in any submarine 

 area outside the limits of the continental shelf, 

 provided it does not interfere umeasonably with 

 the exercise of other freedoms of the high seas. 

 The State is then entitled to keep what it finds and 

 extracts and to protect any vessel (or platform) 

 and installations on the sea-bed used in explora- 

 tion and exploitation operations which carry its 

 flag.'^ Article 2 of the Convention on the High 

 Seas, which requires all States to exercise their 

 freedoms of the high seas "with reasonable regard 

 to the interests of other States in their exercise of 

 these same freedoms, would prohibit any other 

 State from physically interfering with the opera- 

 tions. 



However, there is no agreement that a State 

 may acquire "sovereign rights" to explore and 

 exploit the mineral resources of any submarine 

 area outside the limits of the continental shelf and, 

 consequently, the right to exclude "poachers," 

 i.e., operators of other nations who wait untU the 

 operator carrying its flag has done the exploration 



and then, having avoided the costs of exploration, 

 move in on a deposit and work in the same area.'"* 



B. Do the Uncertainties of the Status Quo Pro- 

 mote or Inhibit Attainment of United States 

 Objectives? 



Representatives of industry with whom the 

 International Panel has discussed this question 

 agree that private enterprise will be deterred from 

 exploring and exploiting the mineral resources of 

 the sea-bed and subsoil beyond the limits of the 

 continental shelf unless it is assured of exclusive 

 access to such resources in a large enough area for 

 a long enough time to make the activity 

 profitable.^' However, no one can reasonably 

 advise private enterprise that the existing frame- 

 work assures it of such security much beyond the 

 200-meter isobath. 



The National Petroleum Council recommends 

 that the United States should remove these uncer- 

 tainties by declaring that it will exercise the "fuU 

 rights of exclusive jurisdiction" which it thinks the 

 Convention on the Continental Shelf gives the 

 United States and inviting all other coastal States 

 to join it in making similar declarations.'* Once 

 this is done, the NPC does not think it is urgent to 

 create a new framework for the exploration and 

 exploitation of the mineral resources of the 

 sea-bed and subsoil beyond the continental mar- 

 gins (i.e., the continental shelves, slopes and rises) 

 over which it would have the coastal States declare 

 their "full rights of exclusive jurisdiction."'' ' 

 Capital and developmental competence will be 

 preoccupied wdth exploiting the natural resources 

 of the continental margins and it is "most improb- 

 able that within the foreseeable future there will 

 be any rapid movement to exploit the natural 

 resources lying beyond" the continental 

 margins. 



7 1 



Bellman, Address before American Bar Association 

 National Institute on Marine Resources, Long Beach, 

 California, June 8, 1967, at 17-18. 



72, 



78 



73 



^Ibid. 

 Henkin, supra note 38, at 30. 



'''^Ibid.; Christy and Brooks, Shared Resources of the 

 World Community, at 155, in Seventeenth Report of the 

 Commission to Study the Organization of Peace (1966). 



'^NPC, for example, finds that "the oil and gas 

 operator must have certain necessary incentives before 

 sizeable expenditures are committed to exploration and/ 

 or research and development of deep sea systems," 

 including "[e]xclusive rights to exploitation of a com- 

 mercial discovery" and "[p]recisely specified operating 

 rules and applicable laws enforced by an established and 

 stable regime." NPC Interim Report, at 7. 



'*/d. at 9-10. 



''''id. at 16-17. 



''^Id at 17, 19. 



VIII-21 



