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"The time has come,” the porpoise said, "to talk of many things: of seas—and ships—and sealing grounds—of boundaries and . .
But, before he could continue, he was interrupted by wave after wave of applause from the delegates to the first Conference of the Inhabitants of the Ocean (cio).
They had all come together on a plateau on the North Atlantic Ridge in November 1972. There were eels from the Sargasso Sea, turtles from Ascension Island, seals from the Bering Straits. They were all there—the yellow-bellied sunfish, dogfish, stately seahorses, tuna, swordfish, halibut, mackerel, whales, and exotic tropical fish that carried the proxies of many crustaceans and smaller species that could not come because of the distance involved or lack of fare.
Earlier, the Temporary Chairman, Everett McKinley Octopus, had welcomed them and reminded them that the first CIO Convention had been called to formulate the oh-fish-all position toward the International Conference on the Law of the Sea, to be held in 1973.
The introduction of Percival Lee Porpoise to the Convention by the Temporary Chairman, Ev Octopus, had been memorable. Affectionately wrapping several arms around Percy Porpoise, while holding up several other arms for silence—and two in his inimitable "Victory” sign—Octopus had intoned: "Our Permanent Chairman, as you all can tell from his novel navel, is neither fish nor fowl. He is, however, a mammal who is not about to be taken in by a line; a mammal who prefers plain old herring and mackerel to caviar; a mammal who knows a can of worms when he sees one; a mammal who . .
Following the tumultuous applause for Octopus’ introduction, a hush fell over the convention as Porpoise grasped the rostrum with both flippers and began earnestly: "The time has come,” he said, "to talk of many things . .
When the ovation had died down and he was permitted to resume, he continued. "Gentlefish, compared to the insect world and the stars in the heavens, we are a minority. Yet, we who inhabit 70% of the livable area of the planet have our rights, too. We have the right to eat what we like.” At these words, the herring, mackerel, and squid delegations coughed nervously and eyed the nearest exits. "We have the right to love”—the distaff dolphins present smiled and nodded in agreement—"and, finally, we have the right to protest.”
"I remind you again,” Porpoise continued, "that our CIO Conference was convened in anticipation of a U.N.-sponsored Conference on the International Law of the Sea, to be held in 1973. As most of you know, the United Nations is an organization and forum for a landlubber species which calls itself Homo sapiens, a term which refers to its alleged wisdom, as reflected by its enormous brain—somewhat half the size of mine.
"This species—for convenience sake, let’s call it Man—is one of many, many forms of life that crawl around on the land. However, man has assumed unto himself a position of predominance over all other land-based species. Man, it has been said, although neither the strongest nor the swiftest, is easily the smartest of all living things. But, of course, nobody but man has said so.
"We can learn something of the nature of Man when we ponder the thought that he shudders at the sound of the word 'man-eater’—yet thinks 'fishing’ is a manly sport. We can agree if we define 'manly’ as insultingly as he does the word 'fishy’—something doubtful or suspicious. You, my friends, and I have cause to worry.
"Their Conference on the Law of the Sea will cover seven topics: (1) the Seabed Regime, (2) the Continental Shelf Regime, (3) the Territorial Sea Regime, (4) the Regime of the High Seas, (5) Fishing and Conservation of Living Resources, (6) Scientific Research, and (7) Preservation of the Marine Environment. It is obvious that the fifth and the last of these topics are of greatest concern to us. However, mankind will
be looking into all these topics as they—not necessarily as we—might perceive each problem. Consequently, one of the major decisions that has faced our Committee on International Law and the sub-committees which have been hard at work here for several weeks before this Conference convened, was whether we should comment to the Secretary General of the United Nations on all the topics to be addressed at their 1973 Conference, or only on those that were clearly of direct vital interest to you and me. Your Committee on International Law of the Sea elected the former alternative for two reasons. First, it is possible that any action associated with the sea conceivably could affect us; and second, because of our vastly greater knowledge of the sea environment, our comments—solicited or not— might be helpful. Accordingly, our Report to the Secretary General, which I shall present to you shortly for your approval, embraces all those topics although not item by item.
"I must once again stress the naive character of the creature with whom we are dealing. For example, mankind simplistically assumes that the small fish eats the tiny fish, the medium-sized fish eats the small fish, and so on. To a degree, that is correct, and for their purposes perhaps that will suffice for the present; however, we all know that such a view fails to take into consideration the millions of years that it has taken us to attain the ecological oceanic balance of which we may be justly proud.
"One point they do not understand is that we have no objection to providing them with food from our over-abundance. To assure you that the foregoing statement is correct, I discussed this point at length with the cod, tuna, shellfish, and other concerned delegates a few days ago. They will confirm the point, but each and every one added a qualification, to wit: 'provided that it does not upset the ecological balance within the oceans.’ They (Homo sapiens) may have difficulty understanding our philosophy on this, because they are not naturally inclined to share their own overabundances with their neighbors. The point we wish to make to them is that they are most welcome to our over-abundance if at the same time they will not further deplete those endangered species which contribute to our ecological balance. They should not confuse this with the evolutionary process of gradual extinction of a species that does not contribute to any ecological balance. To read the statements of their environmentalists, one might conclude that if dinosaurs were still on land Man would go to great extremes to ensure their perpetuation.
"Making this clear may be difficult, because one of the accomplishments of which they are most proud is their U.N. 'Declaration of Human Rights,’ prepared
without regard to commensurate 'responsibilities,’ despite the advice of all their world leaders at the time. In short, they are strong on rights and weak on responsibilities. I warn you on this point. They may grab you with no thought of your—or even their own—perpetuity! In brief, we cannot credit them with an understanding of the difference between the flowers and the weeds of life’s garden.
"With your indulgence, then, I will proceed directly to read to you what your Committee on the International Law of the Sea has proposed that I forward to the Secretary General of the United Nations, with the request that he place it before their Conference in 1973.”
Resolved! That the following be forwarded to the Secretary General of the United Nations:
My dear Secretary General:
I am Percival Lee Porpoise, Permanent Chairman of the Conference of Inhabitants of the Ocean, and I am respectfully addressing you on the subject of youf forthcoming International Conference on the Law of the Sea.
We note that you do not plan to address a large body of your well established common law of the sea, notably such matters as blockade, pacific blockade, neutrality, insurgency, contraband, and related matters such as continuous voyage. This is understandable. This body of law was developed during the period you call "colonial,” and by association might be repugnant to many developing nations. However, having objectively observed its application, we wish to remind you that you cannot erase experience, and that you will find within that body of law many options for the settlement or avoidance of disputes that are far less drastic and bloody than initial resort to the foot soldier and attack aircraft.
First, I shall address the matter of Boundaries. Each of your seven topics contains an underlying implication that a great deal of your discussions will relate to boundaries that you will establish on the sea-lines that you will draw on your maps and charts of the oceans. I would remind you that life has been absolutely chaotic on land ever since you crawled out of the waters a few hundred million years ago. One of your first territorial imperatives was to set up boundaries— borders, fences, maps with lines. At one time you even tried to do this with sea areas under a mare clausum concept, which did not hold water. Furthermore, most of your lives over the centuries have been involved in bloodletting over jurisdictional disputes about these same artificial boundaries.
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The Time Has Come, the Porpoise Said ... 37
whatsoever of abiding by any boundaries you set up. Nevertheless, there is a tie-in with your anti-pollution efforts and to that extent we do have an interest in "general areas” as opposed to "specific boundaries.”
To be completely candid, I must inform you that although the report of the Conference of the Inhabitants of the Ocean has been endorsed by over one million sea species, there was one dissent. This was the shark vote. The sharks were strongly of the view that this Conference should endorse a position that lines and boundaries be established throughout the ocean areas and that you then fight it out as to who controls what. The shark delegation was outvoted, but I regret to inform you that this Conference cannot assume responsibility for future shark actions should you fail to heed the advisories set forth herein.
1 note that in the past your agreements concerning fishing—terrible word!—have been formulated without any consistency with respect to territorial boundaries. In general this is good, since no standard rule will fit all the geography and sinuosities of the coasts throughout the world, let alone the habits of our migratory fish species. What I hope I am getting across to you is that if I am a seal caught at a certain latitude, it is of little significance to me whether the Canadian, U. S., Japanese, or Soviet fisherman had the "right” to catch me. He was there! He could afford to be there without being interfered with. Artificial boundaries are not going to change that. Furthermore, whereas one of your nation states may have the right of appeal to an International Court of Justice, Ms. Seal does not. Thus, Ms. Seal’s survivors and mourners are concerned with quantities, not boundaries. Without intending to carp, we are not concerned with species that might become extinct by normal evolution. We are, however, very much concerned about an "over-catch” of species vital to our current ecological balance.
If the nations of the world decide that they wish to pro-rate the resources that are available in the oceans, they will have to do so in a spirit of cooperation. Governments have as yet shown little disposition to do so, but people might do this! Still, in the last analysis, unilateral declaration of boundaries in the oceans is naive. Those who can exploit will exploit, as both men and fish have observed in the continuing threat of the Red Tide. Those who cannot are incapable of doing anything about it.
In this connection the oceans’ population recognizes, as one of your more intelligent achievements through the years, your concept of "innocent passage” as the fundamental precept of international law of the sea. This provides all people, nations, ships, and other interests an overriding privilege insofar as their action is innocent. How intelligent you have been to narrow
the question to the meaning of "innocent” in the military sense, instead of arguing about whether a ship was three or 200 miles offshore! Of course, we are aware of the disruptive efforts to expand the interpretation of "innocent” beyond its historical military connotation—to such areas as potential pollution, for example. Should that happen you will have entered into an entirely new era of oceanic chaos. We do not care!
We are quite aware of your "International Law of the Sea.” Perhaps we are more cognizant of it than you seem to be. It appears that you cannot get off the subject of boundaries—3-mile limit, 6-mile limit, 12- mile limit, 200-mile limit! If you would only look into your own common law of the sea you would find that, through the last few centuries, you have already established various degrees of control of territorial and extraterritorial waters for specific purposes. Even before you engaged in arguments about territorial waters being too restrictive—when in fact they were over-permissive— exclusive rights to sponge diving were recognized 20 to 30 miles offshore, and the right to the resources on and under the sub-shelf on the part of a contiguous state also had acceptance world-wide. In brief, you have long ago settled most of the issues that you are preparing to go to conference to argue about. All the principles exist in your customary law. If you must insist on codifying it—a step of doubtful value—we only advise you to stick to principles, not depths or distances.
I now take up my second subject, Freedom of the Seas, to which the right of innocent passage is directly related. Fish enjoy freedom of the seas. Except as it might interfere with his own ecological balance, any fish may go any place where man still has left him sufficient oxygen to breathe. "Freedom of the Seas,” as we understand your application of the expression, has meant freedom to engage in international commerce without interference—provided, of course, that a nation has the merchant fleet to engage in international commerce, and provided that it has a navy to protect that merchant fleet. That ties in very nicely with recent extensive claims over territorial waters. In other words, it is our observation that one of the powerful nations could make exorbitant claims and be able to back them up with force. A smaller state might make similar claims, but could not back them up. The smaller state, at your 1973 Conference, is therefore looking for a guarantee that will ensure him against past practices, and he is doing it in a most artificial and arbitrary manner, and—we must add—with complete inattention to the words and actions of the de facto seapowers. The real power of customary law that the smaller state has in its favor is the right of innocent passage which permits his ship absolute freedom of
passage through any ocean waters. Instead of pressing for that principle, the small state is attempting to protect itself against past practices that are completely unrelated to the present situation. Their actions are self-defeating.
This paradox becomes even more apparent when one examines the much-touted concept of the resources of the sea as "the common heritage of mankind.” My friends and I have reservations about that wording, but I shall not dwell on the point. However, with that altruistic start, the nations that have most to benefit from the concept are staking claims that they cannot police, e.g., 200 miles of absolute jurisdiction. Such claims, if acknowledged, could take up 30% to 50% of the ocean floor and the waters above. Add to that a very possible agreement on a 200-meter depth jurisdiction off the coast of the littoral state, and very little is left for "all mankind.” What is left is in the very deepest areas of the ocean that will be the last and most difficult for you to exploit. Actually, very few of us even inhabit those depths. It leaves absolutely nothing to your landlocked beneficiary of the concept of "the common heritage of all mankind.”
It is therefore obvious that your efforts to establish your individual nation states’ areas of cognizance are based on a deep feeling of mutual distrust. The reactions of your nation states have often been perverse. Again, you might question as of what interest is this to us. I can answer quite honestly. We have no interest in going on land, not even as tourists, but at the same time we detect a strong tendency on your part of going into the sea. We are vitally concerned over the manner in which you do it.
I would suggest to you that we have at least two elements of leverage on our side. I have already mentioned our shark delegation, whose position we have not at this time supported. Should we reverse our position, I am sure you would find them very effective "shock troops,” and I suggest they would in those circumstances be actively supported by sting rays, barracuda, killer whales, Moray eels, and others of our group. Secondly, we have already on our books legislation to be implemented only in emergencies. Although this was intended to be a passive protest to pollutant activities on a regional basis, it is sufficiently broadly written to be applicable against a more active challenge. This is our "no-bite” dictum. Fishing requires patience and certain equipment; but, above all else, it requires fish. Oceanwide, we know we could hurt you if we all kept our mouths shut. We also are developing oceanwide tactics for net avoidance.
As my third point, I should like briefly to address a group of problems, all interrelated, which I am sure will be considered at your Conference. These involve
scientific research in the oceans, navigation control, and the matter of absolute versus limited jurisdiction.
To start with the last one, the fact that you have a need for any jurisdiction at all is evidence of yout mutual distrust and lack of cooperation. We only advise that your own common international law of the sea provides you with all sorts of limited jurisdiction if you deem that any jurisdiction at all be necessary. Certainly extensions of absolute jurisdiction are retrogressive.
With respect to navigation control ir is rather obvious that a state with an underwater drilling rig, for example, would wish to avoid having it rammed by a tanker of a foreign, or even its own, flag. So would the tanker! Seemingly, such a simple problem could be resolved without claims of absolute jurisdiction over the waters in which the drilling rig is established.
This is a serious problem to a state bordering on an international strait. Because of your preoccupation with staking out boundaries, you are threatening your customary law of right of free navigation through straits and territorial waters. It would, of course, be an economic absurdity for a ship to be diverted 200, or even six, miles around some arbitrary line established by one nation which might choose to deny the right of free navigation. This is why we have contended throughout that your concept of "innocent passage’ is the real wisdom of your international law of the sea. No master of a ship will deliberately endanger his ship. That point was confirmed at the Convention for the Prevention of Collisions at Sea in London in October 1972. The results of that Convention, although amply provided with legal advice, primarily will be the views of seamen.
Your Convention, alas, is political. We advise that you not override the judgments of seamen!
I understand that one of your serious concerns h with respect to scientific activities of one or more nations off the coasts of other nations. You may, of course, decide to place inordinate restrictions on this type of activity. Actually, we are not overly concerned if you obstruct yourselves and delay your advancement of knowledge in the oceanic medium. We of the undersea world are quite content without you. At the same time, we are alert to your belated but growing awareness of the resources in the ocean and under the ocean floor, as the ant is resigned to the existence of the anteater. So we accept your continued scientifie research and eventual extensive arrival into the sea environment as inevitable. We only trust that youf 1973 Conference will serve as a medium through which you arrive in a responsible manner.
With respect to scientific activities in the waters contiguous to a particular State, it would appear that
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You do not need boundaries and restrictions. You need a "control” system.
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The Time Has Come, the Porpoise Said ... 39
Next, Mr. Secretary General, I address my fourth subject, which is anti-pollution. This, as you undoubtedly understand, is a matter of some urgency to us. We realize, of course, that the International Conference on the Law of the Sea is separate from the U.N. Conference on Anti-Pollution. Nevertheless, we feel that, essentially, the issues you face in your conferences and the decisions you may reach will be interlocking.
I must strongly advise that we are greatly disturbed by explosions of mammoth tankers on the high seas and by collisions of your ships in the approaches to your harbors, with resultant spills of oil and loss of life to the fish species. I know that you can counter the implications of this statement by pointing out that much greater spillage occurs from natural faults. This is true, but fish have advance warning on most natural phenomena. We have no such warning on acts committed by you, however accidental they may be.
These, and following comments, therefore, are important to your Law of the Sea Conference, because with diverse rules of navigation over "staked-out” sea areas by many different members of your organization, the net result will be confusion, collision at sea, and resultant pollution. I apologize for my redundance in reporting that the intransigent shark delegation favored this confusion, but we are at a period in our history wherein the minority view must be overemphasized.
With the exception of such incidents as I have cited above, and which I suggest you carefully consider during your forthcoming Conferences, the undersea inhabitants are not too concerned about oil pollution on the high seas. We have become used to a little bit of oil. We get very little because most of it is removed by bacteria. Nevertheless, a touch here and there has become like dressing on the salad. Since you are completely and abysmally uninformed as to how much oil the ocean can absorb, I trust you will abstain from any rulings about the right of passage of ships based on their potential oil discharge, including that from ballast aqd bilge, in the course of normal operations.
The ocean on the whole probably can absorb all the pollutants that you could accidentally pour into it over the next few thousand years. Still, we do not condone your habit of dumping concentrations of pollutants into confined off-shore or harbor areas. This has already become a serious problem for many of our shellfish species.
We have watched your anti-pollution efforts and we favor them in general. However, we are aware of your
instinctive reaction, after having ignored a problem for decades or more, to take drastic and illogical actions in an attempt to correct it. For example, one of your nations, the United States, is imposing stringent restrictions on merchant ships with respect to sewage disposal and doing very little about effluent discharges in the major waterways from urban areas. Merchant ships contribute perhaps a maximum of one tenth of one per cent to the problem. We find it difficult to applaud such misdirected efforts toward pollution abatement. We would prefer that you go to the seat of the problem. To reinforce this point by using an example in a somewhat unrelated field, this same nation, the United States, has a catastrophic accident record on its highways, 95 to 98% of which are caused by incompetent or drunken drivers. The answer of this nation to that problem has been to go to great expense to the consumer to ensure that the incompetent or drunken driver will have an absolutely safe automobile with which to commit mayhem.
May I assure you that we do not want this philosophy carried over into your adventures into the oceans, nor do we wish to see it germinate in your Conferences on the Law of the Sea and Pollution in 1973.
We do indeed endorse your efforts to limit pollution of the seas. We object to actions such as have been taken in San Diego, California, where you have created a most unsightly area off Point Loma in the interests of anti-pollution of San Diego Bay, the results of which must be as repulsive to you as it has been to us. We support efforts on a gradual scale that will counteract the incessant pollution of inshore areas. At the same time we warn you against radical extremes. Some of our species over the past few thousand years have adjusted themselves to a diet of some of your pollutants. Too radical a readjustment could be devastating!
In sum, please bear in mind that when pollution issues are considered at your Conferences—and we are sure they will be—it is our request that you do not take steps that will so upset the ecological balance in the oceans that it will deprive me of my dinner— and you of yours!
A graduate of the U. S. Naval Academy with the Class of 1938, Captain Church has commanded the destroyers Herndon (DD-638) and Warrington (DD-843), the fleet oiler Hassayampa (AO-145), and the cruiser Saint Paul (CA-73). Captain Church conducted international law extension courses at the Naval War College 1947-49, served variously as Assistant Chief of Staff to CinCPacFlt, senior aide to the Under Secretary of the Navy, on the Joint Staff, and in OpNav. Since retirement in 1968, he has been with various steamship associations in Washington, D.C.