How America Can Shore Up Asian Order
A Strategy for Restoring Balance and Legitimacy
The negotiations at the Third United Nations Conference on the Law of the Sea, aimed at concluding a comprehensive and universally acceptable Convention on the Law of the Sea, are deadlocked over three critical issues: the legal status of the agreed 200-mile economic zone, a regime for exploiting the resources of the deep seabed, and the rights of landlocked and geographically disadvantaged states. Five arduous sessions of the Conference have produced a negotiating text that promises agreement on other issues of considerable importance to the United States as well as to other nations. However, the achievement of a convention consolidating these gains turns upon the resolution of the deadlocking issues.
This article argues that reasonable compromise on the three crucial deadlocking areas is indeed feasible, and that failure to achieve agreement will have consequences that would be serious and potentially disastrous in two respects: first, there would be a renewed wave of unilateral claims and actions respecting the oceans themselves, which could readily lead to outright conflict and certainly to serious friction; and second, a failure in this test case of the possibility of universal negotiation can only cast a very dark shadow indeed on other negotiations aimed at resolving problems that exist between the developed and the developing countries.
The present Conference has its origin in the efforts of the United States and the Soviet Union in the early 1960s to protect their strategic interests in transiting the oceans, particularly international straits. In the late 1960s and early 1970s, the preliminary negotiations took on a more internationalist and humanitarian hue as the Ambassador from Malta, Arvid Pardo, presented his world view of an international ocean regime, and the United Nations, in a formal Resolution, dubbed the deep seabed the "Common Heritage of Mankind."1 Subsequently, the economic issues in this negotiation have become increasingly linked to the broader objectives of the Group of 77 developing nations - actually now exceeding 110 - and to their efforts to give flesh to the "New International Economic Order."
Thus, on the seabed issue in particular, there is a marked North-South character to the opposing sides. On the other hand, the variety of issues and interests involved in the Conference is such that there are many other lines of cleavage on different issues, involving maritime states, coastal states, those with little or no access to the sea, and finally the traditional regional groupings found in the United Nations. It is hardly surprising that a complex negotiation involving three Committees and one Plenary, all negotiating in parallel, should have taken so long and remain incomplete.2 Yet the session of the Conference scheduled for the spring of 1977 may be the last clear chance to reach agreement; if the disagreements should persist, the Conference is likely to break down.
The negotiations have been conducted on the assumption that the results will be a "package deal." Thus, no final decision on any issue will be taken until all parts of the treaty are acceptable to the Conference by consensus or, if necessary, by an affirmative vote of two-thirds of the representatives present and voting.
A four-part document, entitled the "Revised Single Negotiating Text," and containing about 500 draft articles of the Convention and Annexes, represents the tangible product of the negotiations so far. The vast majority of these are acceptable to a consensus of the Conference and to the United States, and they already reflect - as might be expected - a great many trade-offs and informal or tacit understandings and commitments.3
The three deadlocking issues were already visible prior to the negotiating session last summer in New York. With the possible exception of the landlocked and geographically disadvantaged states issue, no progress was achieved then despite considerable effort. The issues run deep and can only be resolved by major political decisions by all interested parties, the United States perhaps most of all. And last summer was not the best time for American policymakers to think and act on the necessary scale.
A zone of national jurisdiction for all nations, extending no less than 200 miles from shore, is now inevitable. The Revised Negotiating Text, in providing for a 200-mile zone, reflects what had essentially become a fait accompli as a result of the avalanche of claims in recent years, running to approximately this extent. In the spring of 1976, the United States joined in this tide by an act of Congress claiming such a zone in order to control foreign fishing within 200 miles of our coasts; since then, other major nations have announced their intent to claim such zones regardless of the outcome of the Conference.4
The critical unresolved issue, however, concerns the scope of "national jurisdiction" in the zone. One group of nations, most of them South American, asserts that such jurisdiction should be total, making the zone in effect a territorial sea in which other nations enjoy only subordinate rights of navigation, overflight and communication. On the other hand, maritime countries that use and fly over the seas extensively want to limit coastal state jurisdiction to a right to exploit the living and nonliving resources in the zone. They would limit the territorial sea to 12 miles and would define the remainder of the 200-mile zone as part of the high seas, subject only to certain economic rights of the coastal state. A popular middle position, now embodied in the Revised Text (Part II, Articles 44, 46 and 47), would classify this area as sui generis, neither high seas nor territorial sea, subject to "national jurisdiction" but with the freedoms of navigation and overflight and the right to lay cables and pipelines protected.5 The last session of the Conference failed to produce any new proposals for settlement of the issue.
One can identify four interests that the United States, generally in company with other highly developed countries, including the Soviet Union, has sought to protect in this part of the negotiations. First, these maritime nations frequently conduct naval and aircraft activities within 200 miles of other nations' shores (for example, the United States and the Soviet Union in the Mediterranean and the Gulf of Mexico); in the past, such activities - in peacetime and even in war (outside territorial limits) - have been regarded as a freedom of the high seas, and it is the present position of these countries that no convention which does not guarantee the high seas status of the sea beyond 12 miles will protect this interest. They reject the middle (or sui generis) position on the ground that it might be construed to vest important "residual" or unspecified uses of the zone in the coastal state. The problem is that although specific treaty language could conceivably be drafted to protect this military interest, the smaller nations (mostly in the developing category) strongly oppose any open recognition of a right to conduct military activities in the zone. In fact, this interest is only discussed privately, and it has been hard to bring the issue out into the open.
The second interest of the maritime states, protecting commercial navigation from undue coastal state interference, seems adequately protected in the current text. It is conceivable that the recent spate of oil spills and other accidents to shipping operating in the coastal waters of the United States could lead to a reopening of the issue. This could produce more extensive assertions of coastal state rights to lay down safety and other standards.
The third of the "maritime-coastal" issues - and the one that has caused the most extensive controversy - concerns freedom to engage in scientific research within the 200-mile zone. All parties agree that at present, and for the foreseeable future, the most important areas of marine scientific research will be within 200 miles of coastlines, and that a significant number of such studies will require transit through more than one zone, since fish schools, geologic structures and currents cross multiple zones. Hence, a regime that imposes the requirement of single-state and especially multiple-state consent to conduct research activities presents the risk of substantially impairing marine scientific research.
The United States has taken the lead in arguing that freedom of scientific research will produce results of benefit to all nations, and has been joined by almost all major Western nations; the Soviet Union had originally supported this position but has recently backed off. In practical terms, the United States is willing to accept provisions requiring the researcher to give prior notification to the coastal state, to disclose the results of the research to the coastal state, and to permit the coastal state to place representatives on board the research ship. However, the American view would permit coastal state rejection of a research activity only when the coastal state determines that the activity has direct application to the profitable exploitation of resources within the zone, and if such a determination is disputed, the question must be subject to compulsory third party dispute settlement.
The opposing side on this issue has brought together a coalition of coastal states and other developing states, since the advanced industrialized states tend to be the researching states, and it is presumed that the direct benefits of research accrue primarily to the researcher. It is the contention of the coalition that researching states may take undue economic advantage of their discoveries in coastal areas; they also wish to control access to the information, maximize their benefits through technology transfer and fees, and guard against covert military activities. Hence these countries reject the "resource-related" criterion proposed by the United States and demand the right to refuse access altogether at their own discretion.
So far, efforts to devise a workable basis for distinguishing resource-related and non-resource-related activities have not been successful, and the opposing sides thus remain sharply divided. Within the United States, the scientific community is generally quite concerned to maintain the maximum possible freedom, and has supported the firm position taken by the U.S. Delegation.6
Fourth, the argument is made that new and important needs and uses of the 200-mile zone may develop in the future, just as the recent past has seen the development of new uses of the seabed, including continental shelf and deep seabed mining and the use of passive submarine detection devices. If the 200-mile zone continues to be regarded as high seas, the United States - the argument runs - will have a better opportunity to take advantage of these uses when and if they arise. In addition, the status quo is more flexible. If the treaty allocates residual rights to the coastal state, such control may never be divested. However, if it becomes desirable, a grant of particular rights to the coastal state at a future date can be readily accomplished.
Thus, the legal status of the 200-mile zone raises extremely difficult issues in which the United States is very much to the fore, especially on the questions involving military access and freedom of scientific research.
The second major dispute, on a legal regime for the deep seabed, concerns putative riches and firmly held principles. The latter may be the more important.
In what is called "the Area," beyond the limits claimed by coastal states, by far the most glamorous resource now known consists of the large amounts of manganese, copper, cobalt and nickel contained in potato-sized manganese nodules located on the abyssal plain of the ocean, with the currently most interesting area between the Hawaiian Islands and Mexico. Neither commercial production nor full-scale prototype mining of these nodules has yet taken place, and it is not clear whether the cost of deep seabed mining will be competitive with land-based production.7
Although the United States and some other developed countries continue to maintain that unilateral exploitation of these nodules can be considered an exercise of the freedom of the high seas, the General Assembly has passed a series of resolutions declaring these resources the common heritage of mankind and specifying that a new legal regime must be established before they may be developed. Although a significant motivation for passage of these resolutions came from the internationalist ideas expressed by Ambassador Pardo, more concrete interests are involved as well. The land-based producers of these metals, notably although not exclusively from the developing world, seek to avoid costly competition, while the larger Group of 77 wishes to obtain a substantial share of the benefits of deep-sea mining as well as greater control over international economic decision-making in a potentially important and precedent-setting area.
Negotiations in the First Committee have now progressed to the point where perhaps 95 percent of a text containing 63 articles and four annexes would be acceptable to the Conference if the remaining critical issues were resolved. Specifically, the Revised Negotiating Text contains very detailed provisions for the structure of an international "Authority" which would provide the legal framework for mining of the Area. Although certain critical points concerning these organs are a matter of dispute, the Text provides for an Assembly, Council, Dispute Settlement Tribunal, important functional Commissions and a Secretariat (Part I, Articles 24-45). And the developed countries have agreed that an organ of the Authority called "the Enterprise" would have independent power to exploit the seabed directly (Part I, Article 41 and Annex II).
Moreover, the Text provides assurances against claim-jumping and for the establishment and supervision of various regulatory functions typical of any mineral production industry. The proposed international regime would prevent the development of "flag of convenience" type nations that could adopt their own environmental standards permitting seabed activities that would pose dangers to the marine environment.8
The Negotiating Text also provides for the sharing of revenues from deep seabed mineral production, particularly for the benefit of the developing countries (Part I, Articles 9 , 26 [2x] and 49), thus meeting one of their major demands in a way possible only through a multilateral convention. Similarly, the Text contains transfer-of-technology provisions benefiting developing countries, as well as standby protections for land-based producers (Part I, Article 9). And by filling the current legal vacuum with a legal regime, the Text produces the valuable side benefit of foreclosing future national claims of jurisdiction that could further erode important high seas freedoms.
On all these issues, great progress has been made. The deadlock, however, persists on the central question of control over access. Some developed countries, with the United States in the lead, are seeking assurances that their state or private companies will have a long-term opportunity to mine the nodules profitably. And they fear that the effort by the Group of 77 to limit access to the enterprise and to obtain control of the decision-making organs of the Authority may mean that mining operations would be held hostage to wider political and economic demands of the Group.
Although the United States has not adopted the position that production of these metals is needed for military security, both the Ford Administration and key members of Congress have argued that free access is important, if not critical, to a goal of making the United States as independent as possible of foreign sources of raw materials. Hence, the U.S. position at the negotiations has been that a regime for the deep seabed must provide for virtually automatic and unlimited access for any state, or private entity sponsored by a state, which has the technology and capital.
With the conspicuous exceptions of Norway and perhaps Sweden, almost all the highly industrialized countries generally support the American position that access should not be subject to political control. However, many in this same group of developed countries part company with the United States on whether there should be controls on the basis of economic criteria, specifically whether the rate of seabed development and the proportion of the seabed that any one nation can exploit should be controlled under the Convention. Canada and Australia (concerned, like many developing countries, to protect their own land-based production) appear to favor limits on the rate of development, while others, notably including France and the Soviet Union, favor anti-monopoly provisions, apparently in order to assure that exploitable areas are available to their industry when they develop the technology. The United States has adamantly resisted any meaningful proposals along either of these lines, although it has acquiesced in a specious interim limit on development keyed to nickel production (Part I, Article 9.4 [iii]).
In line with its basic position, the United States at first proposed that access should be virtually automatic upon application, subject only to a very limited discretion of the Authority's technical organs, on specific grounds reviewable by the compulsory dispute settlement system. More recently, however, the United States has come to accept that the Council of the Authority (not the Assembly) should have certain broad powers, including the negative power to deny applications for access. However, under the most recent American proposals, voting in the Council would be weighted in such a way as to give a small number of Western developed countries the power to block a Council vote to deny an application.9 In short, the U.S. position would add up to the developing countries being powerless to control the granting of applications.
In contrast, the caucus of over 110 developing countries in the Group of 77 envision the Authority as a sovereign with respect to the resources of the deep seabed, with the right to exploit these resources as it deems appropriate in accordance with the will of the majority of states. The most extreme among the developing countries, such as Algeria, Kuwait, Mozambique, Morocco, Libya and India, would give ultimate and unrestricted power over "Activities in the Area" to the Assembly rather than to the Council, with voting on a one-nation-one-vote basis. In addition, these countries would like the Enterprise to be the dominant, if not exclusive, exploiter of the deep seabed.
As between these two extreme positions, the Revised Negotiating Text reflects an attempt to compromise, so far satisfactory to neither. (Indeed, even the use of the present Text as a basis for discussion was sharply challenged by the Group of 77 right through the session in New York last summer.) Although the present Text is far from meeting the U.S. position, it does reflect substantial changes, in favor of the developed countries, from the 1975 Geneva draft.10 Substantial emphasis is placed on the role of the Technical Commission of the Authority in reviewing applications for access, and even the ultimate powers of the Council are implicit rather than clearly spelled out (Part I, Article 28 and Annex I, para. 8). If one assumes, however, that a power to approve or deny applications is included in the generally broad powers given to the Council, then its composition is so contrived that affirmative approval of any application would require not only the votes of developed countries but those of a significant number of developing countries as well (Part I, Article 27). In fact, it appears that the developing country members of the Council would have enough votes to authorize exploitation in the face of developed country opposition. However, complaining states and injured applicants would have the right to contest decisions alleged to violate the Convention in a proceeding before the dispute settlement organ (Part I, Article 33 and Annex III, para. 17).
Throughout most of the summer session of the Conference in 1976 neither side gave ground. As a result, the discussions in Committee I were primarily limited to procedural debates, and to the kind of non-substantive rhetoric last heard three years before at the first substantive session of the Conference in Caracas in 1974. In fact, it appeared that the United States had hardened its position. On the other hand, late in the session Secretary Kissinger made at least a gesture, indicating that the United States would be willing to negotiate assurances that the exploiting arm of the Authority, the Enterprise, would have the financial resources necessary to commence operations, and would also have access to relevant technology. At the same time, he continued to assert that private and state companies should have a parallel right to exploit the resources under a system that would not discriminate against them - the so-called parallel system.11
Although the reactions to the Secretary's proposals were encouraging, they failed to break the deadlock, and there was widespread comment that the Conference was doomed to fail on this issue. Hence, the President of the Conference, Hamilton Shirley Amerasinghe of Sri Lanka (now the President of the U.N. General Assembly), obtained the agreement of the Conference that it would devote the first three weeks of the next session primarily to the regime of the deep seabed, with heads of delegations expected to conduct the negotiation. Subsequently, an intersessional meeting was scheduled for Geneva, to begin in late February.
Finally, the Conference has not been able to resolve the problem of over 50 landlocked and geographically disadvantaged states. The caucus of this group met regularly during the Conference sessions as early as the 1975 Geneva meeting, although efforts to develop the group as a political force actually preceded the Conference. These nations were initially viewed as a potential source of pressure to maintain high seas freedoms because they had little or nothing to gain by increased zones of coastal state jurisdiction. As it turned out, however, they developed into a political force too late to prevent the establishment of a 200-mile economic zone. Thus, at present they are limiting their efforts to obtaining access for the group to the economic zones of neighboring states for the purpose of exploiting the resources therein and to gaining other preferences, particularly a greater share of the revenues from seabed exploitation. In addition, some of the group are strongly seeking improved access to the sea for the landlocked states.
Since final decisions by the Conference must be taken by a minimum two-thirds vote, this group has the power to block any Convention. The coastal states, seeking to retain the advantages of a 200-mile zone, have resisted making significant substantive concessions to the group, although hortatory provisions in their favor are included in the Text, particularly favoring the developing countries within the group. Specifically, the Text guarantees to landlocked developing states and to geographically disadvantaged developing states the rights to "participate on an equitable basis" in exploitation of the economic zones of certain neighboring states (Part II, Articles 58 and 59). The vagueness of this standard, however, seriously reduces the significance of these rights. Similar vague provisions are found in the deep seabed portions of the Text (Part I, Article 18).
Up to now, the United States has taken the position that it has little direct interest in this issue. Whether this perception is correct will, of course, depend on the definition of the relevant regions and members of the geographically disadvantaged group. It is possible, for example, that some Caribbean or Central American states could be given access to the United States' 200-mile economic zone.
Toward the end of the last session of the Conference, private negotiations between the landlocked and geographically disadvantaged states and a group of developed and less-developed coastal states seemed to be making progress on these issues. Perhaps a breakthrough is possible early in the next session of the Conference.
From the discussion above, it should be clear that the remaining deadlocked matters raise critical issues for the interested countries, settlement of which cannot be cost-free. Whether further concessions ought to be made to reach a settlement is the question that must be under review in the governments of virtually all participating nations. Such an analysis calls for at least three perspectives. First, the issues apparently resolved at the Conference must be weighed to determine the importance of retaining the progress made on those issues; second, the costs involved in settling the deadlocking issues must be evaluated; and third, the wider impact of a failure of the Conference must be reviewed. From the discussion that follows, it will appear that within foreseeable limits the costs of failure of the Conference exceed those that might be necessary to produce a widely acceptable Convention on the Law of the Sea. This conclusion seems to be particularly true from the U.S. perspective.
First, how important is what has been settled - and how much of it could come unstuck without an agreed convention? Obviously a detailed review of all the subjects acted on by the Conference is not possible here. Rather let us consider the highlights, divided from the perspective of the previous traditional law of the sea into three categories: subjects virtually unchanged, those that have evolved in the course of the negotiations into new customary law, and third, those subjects that could not become accepted law without the entry into force of a convention.
The first category includes general rules for the delimitation of the baseline for measurement of the territorial seas - although the area of the high seas may change - (Part II, Articles 2-13); rights in the continental shelf (Part II, Articles 65-69); access to the sea by landlocked states (Part II, Articles 109-117); and the delimitation of boundaries between opposite and adjacent states (Part II, Articles 14, 62 and 71). Entry into force of the Convention with respect to these subjects would principally provide only the benefits of codification.
Of greater weight are those matters that have changed over the period of the negotiations, either through the process of negotiation or through the actions of nations, to the point where new rules have taken hold and been accepted as law without regard to entry into force of a convention. In the nature of many subjects, the claim of a right combined with, perhaps, the exercise of power pursuant thereto makes it almost impossible for other countries to mount significant resistance.
A 12-mile territorial sea and a 200-mile "Exclusive Economic Zone" for all coastal states have now attained this status (Part II, Articles 2 and 45). In the territorial sea the coastal state is to have sovereignty, subject only to the rights of innocent passage. And in the 200-mile zone the coastal states will dominate, if not completely control, natural resource exploitation (Part II, Article 44). The acceptance of these new limits represents a dramatic shift from previous customary international law which, until recently, limited all such zones to 12 miles. It also represents the final demise of the doctrine of the three-mile territorial sea.
The acceptance of virtually total resource control in the 200-mile zone reflects one specific defeat that the United States and perhaps the world incurred during the period of the negotiations. With increasing pressure on ocean fishery stocks, the need had arisen for measures to assure the optimum yield of living resources. With new techniques and mobility, over fishing was becoming rampant, despite piecemeal control efforts through bilateral and limited multilateral agreements.
In an attempt to develop a comprehensive rational regime for the management of the living resources of the oceans - and also to limit the expansion of national fisheries jurisdiction claims - early in the preliminary negotiations the United States proposed a species-oriented management scheme. Management control and the right to exploit the fish would have depended on the characteristics of the species, the area over which the species traveled during its life cycle, and the methods by which the species is captured. Although the U.S. proposal was sensibly framed and argued, it became clear in the 1974 sessions that it simply did not have adequate support. The Revised Negotiating Text thus gives the coastal state exclusive management control over fishing within its 200-mile zone regardless of species (Part II, Articles 44, 50-56).12 Licenses to fish will be issued on a state-by-state basis, and management control will depend on the location of the fish. Even the accompanying provisions of multilateral and bilateral fishery management agreements appear to be merely hortatory, particularly since many coastal states seem unwilling to accept compulsory dispute settlement for this issue (Part II, Articles 50-57, 104-109; Part IV, Article 17).
Under the Revised Negotiating Text, the U.S. distant water tuna fishing industry as we know it today may be sacrificed because of the difficulty of obtaining multiple licences. On the other hand, the coastal fishing industry of the United States would benefit. Although compulsory procedures for disputes over foreign fishing within the exclusive economic zone are still being sought, chances for success are slim. The opportunity to create an international management system based on the biological characteristics of the fish has been lost, and new bilateral or limited multilateral negotiations seem a long way off. Indeed even those agreements that now exist - as between Japan and the United States over Pacific salmon - may now be harder to renew.
A second change in the law that is embodied in the Convention but will occur regardless of whether or not a convention comes into force is acceptance of a right of archipelagic states to draw straight baselines between the islands of the archipelago to delimit national waters (Part II, Article 119). Previously, the right to draw such baselines between islands was presumed by many to be limited to coastal islands. However, the claims and actions of archipelagic states have now made the change irreversible.
Third, the present Negotiating Text reflects what appears to be emerging international agreement concerning the seaward limits of the "continental shelf" - a traditional concept under which (before any talk of "economic zones") coastal states had been able to claim the right to explore and exploit the resources of the adjacent ocean floor ranging out to a depth of roughly 200 meters. A 1958 Convention on the Continental Shelf had given coastal states such resource rights beyond that limit up to the limits of "exploitability" of the resources of the adjacent seabed. However, in practice this test has proved almost unworkable, and it now appears that the problem will be solved by substantially expanding the geological area to be considered "continental shelf." For many coastal states which have shallow waters extending for distances well beyond 200 miles from their coasts - such as Argentina, Australia, Canada, India and the United Kingdom - the area of their resource control will in practice be substantially increased.13
It may appear that since these three changes - all expanding national claims to sea areas - have already been generally accepted, the only role of an agreed convention would again be the mechanical one of codification. However, this is not the case, for where the temptation to unilateral claims has shown itself to be great, it may be all the more important to call a halt and seek to stabilize the situation. And this is particularly to the benefit of states whose interest in the use of the oceans equals or exceeds any interests they may have as coastal states.
Thus, the Negotiating Text would prevent a future expansion of the 200-mile zone and of the regime of the continental shelf. (Part II Arts. 45 and 64). The Text also sets limits on the number and length of archipelagic baselines that may be drawn and protections for navigation within the waters so enclosed (Part II, Article 119). Even in areas where the international law of the sea is ready to change by custom, the Text would provide a stability and limits to national claims helpful to many nations, including the United States.
Finally, there is the class of subjects on which the law would be substantially affected by entry into force of a near-universal convention on the law of the sea. Progress in these areas has been possible only through the give-and-take of the negotiation process. Furthermore, many of the solutions to these issues can be implemented only through a multilateral agreement. And in many areas, as we have seen, an agreed convention has become important precisely to deal with intervening changes in customary law and accepted practice.
Perhaps the most critical objective and apparent major success of the United States and other maritime states, including the Soviet Union, has been agreement on ship and aircraft transit. The accepted 12-mile limit for the territorial sea and the new 200-mile economic zone have threatened traditional military and commercial mobility in the oceans, with many maritime nations believing that the traditional doctrine of innocent passage provides insufficient protection in such expanded territorial seas or other zones of national jurisdiction.14 Unfortunately, the innocent passage doctrine, as most authoritatively articulated in the 1958 Convention on the Territorial Sea and the Contiguous Zone, is unclear whether the test of innocence is to be applied by the coastal state on the basis of objective factors, or is a matter of discretion. Furthermore, the 1958 Convention gives the straits state the right to suspend such passage temporarily for security reasons.15 As territorial seas are broadened, more shipping will have to rely on this uncertain protection.
Moreover, the right of innocent passage applies only to ships, not to aircraft. The expansion of the territorial sea to 12 miles would place straits such as Gibraltar and Malacca, commonly used for overflight, within the regime of the territorial sea, so that overflight would become subject to the consent of the coastal state.16
An even greater problem would arise if the establishment of straight baselines around archipelagos were to be developed under customary international law rather than more explicitly by treaty. Without the safeguards built into the Negotiating Text (Part II, Articles 121-125) the areas within the archipelagos might be assimilated into internal waters, and no ship or aircraft transit legally permitted without coastal state consent.
The Revised Negotiating Text would produce more satisfactory results on these transit questions than the results likely in the absence of a convention. Access both through and over straits of territorial sea used for international navigation has been protected by the creation of a new right of "transit passage" (Part II, Articles 36-42), with a similar right in the case of archipelagos (Part II, Articles 124-126). And the definition of innocent passage has been expanded and made somewhat more objective by providing a list of observable activities that may be considered "prejudicial to the peace, good order or security of the coastal state" (Part II, Article 18).
It appears that the provisions on these questions will hold if the straits and archipelagic states are not given the opportunity to erode them over an extended period of negotiation. Although these states continue to demand the right to exercise full sovereignty over the inter-island and straits areas, their number is too small to create a major deadlock at the Conference. The compromises reached have provided them with sufficient rights and protections, leaving them with no substantive reason to object to the Convention. In fact, they may have a direct interest in having it enter into force since they may be unable to consolidate all their gains outside of a convention.17
In short, an agreed Convention would have major importance in securing transit rights and defining the new claims of coastal, straits and archipelagic states. The alternatives of bilateral negotiation or forced transit by the powerful maritime nations until a right of transit is assured would be extremely costly, if not impossible, because of the number and location of the areas through which the maritime countries would want to assure military and commercial transit. Avoiding such costs is, therefore, in the interest of the straits and archipelagic states no less than of the United States and other maritime states.
In the area of environmental protection, a convention along presently agreed lines would be of more debatable benefit. The recent rash of oil tanker mishaps that included the breakup of the Liberian-flag tanker, the Argo Merchant, off Nantucket, have highlighted the need for stiffer standards of secure operation to protect the marine environment, especially with respect to international shipping. The current piecemeal attempts of individual nations, and the limited international agreements that have been primarily produced by the maritime-nation-controlled International Maritime Consultative Organization, clearly are inadequate. While stiffer coastal state regulation is one possible answer, a maximum level of international agreement would be desirable.
Initially, the United States and other countries sought at the Law of the Sea Conference a fairly comprehensive system of standard-setting and enforcement of regulations for the protection of the marine environment. Unfortunately, no powerful group of nations was prepared to press the issue at the risk of other conflicting national interests; in particular, many maritime states, along with the oil-producing countries, fear that aggressive protection of the marine environment may inhibit commerce. However, there has been general agreement on some aspects of the issue: not only is there a general obligation to prevent, reduce and control pollution of the marine environment (Part III, Article 4), there are more specific provisions for doing so.18
Such provisions of the Text do represent modest progress in efforts to protect the marine environment, more than could be readily obtained - at least up to now - through the evolution of customary international law or through bilateral treaties. At the same time they do not appear to impose significant burdens on maritime commerce or on other uses of the ocean.
Yet it can be argued that it would be a tactical mistake from the environmental point of view to see this agreement codified. With concern on the subject once again on the increase, codification might inhibit the development of more forceful measures through future negotiations or through unilateral action which either develops eventually into customary international law or so substantially affects maritime commerce that all maritime commerce would be forced into compliance. The Argo Merchant disaster in particular may produce a strengthened U.S. position on this matter at the Conference as well as pressure for unilateral U.S. action.
However, even on the assumption that the eventual text does not represent a major improvement, the benefits of a framework for the imposition of minimum marine environment standards and enforcement mechanisms seem on balance worth having. Perhaps once the framework is established future progress could be made.
The Negotiating Text also provides for the sharing of the revenues produced from portions of the continental shelf, as well as from the deep seabed (Part I, Articles 9.6, 26 [2x] and 49; Part II, Article 70). These revenues would be distributed primarily to developing countries. Although the revenue generated is likely to be far less than many have hoped for, the distribution of these revenues would be of economic as well as symbolic importance to many countries. There is no doubt that the mechanics of such revenue sharing, if not agreement on the principle itself, would be virtually impossible to obtain outside the framework of a multilateral convention.
Similarly, the Negotiating Text provides for the transfer of technology to developing countries in connection with all ocean activities (Part I, Article 11; Part III, Article 12). Although the provisions are extremely modest, it is unlikely that any progress in this regard would be possible outside of a multilateral convention.
Last, and perhaps most significant, the negotiators appear to have agreed to the establishment of a compulsory dispute settlement system which would produce binding interpretations of the Convention. Beginning with an informal dispute settlement working group established during the Caracas session of the Conference in 1974, broad-based support has been building for such a dispute settlement system. A Negotiating Text on the subject has been produced out of informal meetings of the Plenary of the Conference, and it appears clear that if agreement on the substantive portions of the text is obtained, the remaining lesser issues in this area will be readily resolved.19
The creation of such a dispute settlement system with compulsory jurisdiction is obviously not possible outside of a Convention on the Law of the Sea. Such a system would provide stability and protect the essence of the agreements negotiated at the Conference. The alternatives of noncompulsory access to arbitration, the International Court of Justice, bilateral negotiation, or forceful action could not serve the world community as well as such a dispute settlement system. Nevertheless, there is one risk inherent in such a system that the United States and many other countries fear - the dispute settlement system may be politicized, particularly by the majority of nations from the developing world. The careful negotiation that has gone into the composition of the dispute settlement organs gives considerable ground for hope that this development would not occur. (See, for example, Part IV, Annex II, Articles 3 and 4).
In sum, the course of the negotiations and the course of history have preempted a number of issues under negotiation at the Conference. Certain developments will occur with or without the entry into force of the Convention. On the other hand, the satisfactory resolution of a number of important issues depends wholly or in part on the entry into force of a Convention on the Law of the Sea. Furthermore, entry into force of such a convention would produce for all the matters covered the benefits of a stable, readily available codification of the Law of the Sea. If the deadlock is not broken, the benefits of resolution and codification will be unattainable.
If, at the next session, the opposing positions remain unaltered on the three major political issues that I have identified, the Law of the Sea Conference will probably fail. If an early consensus on these three issues is reached, it is likely that the remaining minor and technical issues could be resolved quickly, placing the Conference in a position to produce a comprehensive multilateral Convention on the Law of the Sea. Rapid progress is, however, essential. It is virtually certain that unilateral claims to new rights in the oceans will proceed at an increasing pace if an agreement is not reached soon. These claims would then change the whole framework of the negotiations and make it much more difficult to reach an acceptable convention. Specifically, it is likely that many additional states will unilaterally claim national jurisdiction, possibly of the most extensive kind, in offshore zones of 200 miles or more; also, states are likely to expand their unilateral claims relating to straits and archipelagos.
However, the greatest danger - bluntly - comes from the United States, and specifically from the likelihood of congressional action asserting a U.S. right to exploit the deep seabed under congressionally set terms. Such legislation is pending before both houses of Congress, and some of its strongest supporters appear hopeful to have it enacted prior to the resumption of formal negotiations at the Conference this spring.20 A common theme in the various proposals is that the U.S. mining companies could obtain the right to exploit specific resources in areas of the deep seabed, by filing a claim with the U.S. government. The United States would establish certain regulations applicable to exploitation, collect fees, and provide substantial guarantees to the exploiter, in particular ensuring against possible losses that might be caused by interference by other nations.
The major initiative for such legislation has come from a few mining companies and consortia that are seeking early access to the manganese nodules. As a complementary strategy, they are seeking to influence the negotiations by pressuring the United States to maintain a hard-line pro-development position. The legislation has received no official support from the executive branch, although the fact that it has been pending is believed to have made the U.S. hard-line position more credible to other countries. By late 1976, support for this legislation had grown to the point where many observers believed that its passage would have been veto-proof under a Republican President.
Apart from its specific dangers to the negotiations, this threat of congressional intervention highlights the need for much closer ties between the Executive and the Congress. Obviously, such cooperation would be needed in any event to prepare the way for Senate ratification of the Convention if it is ever submitted. Yet, although successive U.S. negotiators have done much to keep the Hill informed, they have lacked political weight and the President and Secretary of State have generally remained aloof. Now the newly appointed negotiator, Elliot Richardson, does have some political standing as well as extensive experience with the Congress. President Carter and Secretary Vance should give him every support to get Congress into the act constructively - and to forestall destructive unilateral legislation.
Furthermore, the formulation of policy should not be made merely within the technical limits of the law of the sea. As has been pointed out, significant areas of the negotiation involve the larger issues of U.S. relations with the developing world and raw material scarcity. The lack of a fully developed U.S. policy on these questions has hampered negotiations on many international fronts. Its development, in cooperation with the Congress, must be a very high priority for the Carter Administration.
We have seen that a great deal has in fact been accomplished by the negotiations, much of which would be lost if an implementing convention does not enter into force. What, then, are the costs the United States and other nations might have to accept to compromise on the three deadlock-creating issues?
As indicated above, a resolution of the landlocked and geographically disadvantaged states issue probably will not directly affect the United States. Its role has been and ought to continue to be one aimed at facilitating agreement among the countries directly involved.
On the legal status of the 200-mile zone, less flexibility exists, at least on the issue of military freedom of movement. It is axiomatic that neither the United States nor the Soviet Union can be expected to relax its position on this matter.
Yet the coastal states' opposition to labeling the economic zone as "high seas" is strong and apparently inflexible, even though, in my opinion, their position is based more on ideological reasons than practical necessity - or any expectation of stopping military uses of the type previously permitted. Further attempts to persuade them to accept a "high seas" label for the economic zone would be fruitless, particularly because time is on their side on this question: each succeeding unilateral claim to the 200-mile zone undermines the customary international law that the area is high seas. Fortunately, it appears that, except for a few extremists, identification of the zone as sui generis would probably be acceptable. It should be possible to frame language that implicitly (rather than explicitly) permits the military activities in question, perhaps by identifying the uses as traditional high seas navigational activities. Motivation for agreement here should be high if this issue becomes the final obstacle to agreement.
On the other hand, the remaining questions concerning scientific research and unknown future uses within the zone are not sufficiently critical to the long- or short-term interests of the United States or other states to convert these into make-or-break issues. Coastal state interest in control over resource-related activities in the zone is strong, and it is not easy to prove that any particular scientific investigation would not have any direct economic implication.
In the circumstances, the best the United States can probably hope for would be an improved definition of pure scientific research, and a right to refer any rejection of proposals for such research to a dispute settlement system. Such a system might be able in time to develop viable distinctions between pure research and resource-related research. In any case, the effort is worth making.
Similarly, the desire to protect unknown future uses of the zone more aggressively than Article 47 of Part II does already should not be a bar to agreement. I suspect that the probability is low of a major unforeseen development that would significantly change the political balance on the issue of allocation of rights and duties in the zone. Thus, attempts to avoid prejudicing such a development appear rather pointless.
From both an international and a U.S. domestic standpoint, settlement of the deep seabed issues is the most complicated and difficult. Many in the developed world, particularly the United States, see this dispute in terms of need for access to scarce raw materials and of avoiding Third World control over resources potentially important to the economic viability of their countries. On the opposing side, many in the Group of 77 assert the right of the majority of nations to influence, if not control, world economic policy with respect to a resource that is not owned by any nation. Both groups see the conclusion of this negotiation as having important precedents for future economic negotiations.
From the practical point of view of the U.S. economy, the importance of the nodule resources needs a careful and balanced appraisal. As indicated earlier, even full-scale prototype mining has not yet occurred and it is a matter of some speculation whether the industry could produce the resource in a way that would be economically viable.21 The fact that the industry has had trouble raising capital and has been seeking substantial governmental guarantees, although apparently justified on the basis of political risks, indicates that success is far from assured.
The major argument made by industry supporters is that seabed exploitation would produce for the United States large quantities of important metals from a secure source. Yet the United States is not currently, or even prospectively, threatened by shortages in these metals. Significant reserves, resources, stockpiles and substitutes exist.22 Furthermore, the land-based sources of these metals are found in many nations, both developed and developing; a concerted effort by Third World countries to affect the market in these metals would face enormous difficulties. Moreover, economic and political cohesion on anything like the OPEC model simply does not exist among the producers of these metals. The futile efforts of the Third World copper producers through the Intergovernmental Council of Copper Exporting Countries (CIPEC) tend to support this view.23
Indeed, there is a deeper question, whether making the United States as independent as possible of foreign sources of all raw materials is, in fact, in the best interest of the United States, at least if the cost is high. Although there are cases where greater resource independence might free the United States from undesirable pressures such as those imposed by OPEC, an interdependent world may in the longer run produce the kind of understanding and cooperation necessary to avoid conflict. Furthermore, elimination of a market for developing country producers in the case of these and other raw materials may have adverse economic consequences for the producer countries by delaying or reversing their economic development; this in turn may indirectly affect still other countries. Is a small degree of increased resource self-sufficiency for the United States - if obtained at the cost of industry subsidy (exposing the U.S. Treasury to the obligation to cover losses up to $600 million per mining site), naval protection of mining operations, or the failure of the Law of the Sea Conference and resulting ill will and conflict - really worth it?
On the other hand, development of the deep seabed manganese nodules within an agreed regime could be beneficial to the world and to the United States. It might produce resources at a competitive price - increasing the supply of the metals and decreasing their cost. It would provide a risk-free payoff to a U.S. industry that has invested in deep seabed technology and should be encouraged to develop new technologies. It might permit the production of these metals in ways that may be less harmful to the world environment than land-based production. Finally, development of the resources through an international cooperative venture may lead to cooperation in more significant areas.
In sum, there are benefits to be derived by the United States from deep seabed mining. However, there is no critical unilateral need that should foreclose compromises, designed to protect the broader interests of the United States while providing a substantial participatory role for the developing world.
To this end, a one-nation-one-vote Assembly should play the role of a broad policy-making body sharing budgetary control with the Council (as now provided in Part I, Articles 25 and 26). On the key question of control of access, there is no doubt that much of the decision-making can be resolved at a technical level by the Technical Commission as the Text already provides. Nevertheless, decisions that have implications beyond the technical level ought to be resolved in a Council the composition of which reflects the political, economic and legal setting of this negotiation. Some nations have direct technical and economic stakes in deep seabed development. They are the potential initial exploiters as well as the major consumers and competing land-based producers. All nations have an interest based on the legal characterization of the resource as the common heritage of mankind, and many nations hope to share in the revenues from the deep seabed. Furthermore, the developing countries aspire to obtain greater control of international decision-making and seek to attain that goal here, and the reality of the political, military and economic strength of the developed nations cannot be ignored.
If one could quantify all of these interests, perhaps an ideal composition and voting formula for the Council could be established. Since that is not feasible, another negotiated compromise solution must be sought. The relevant interests appear to be divided primarily on the basis of developed versus developing countries. Since the cooperation of both groups is needed both for successful conclusion of the negotiations and the conduct of exploitation, the Council's composition ought to be arranged to assure that decisions may only be made with the approval of a substantial number of countries from each group. Minor changes in the present text that would reallocate the seats on the Council and change the number of votes needed to take affirmative decisions may be all that is necessary to reach this goal. As I have discussed elsewhere, such a composition would be likely to lead to early modest development of the resource, and to large-scale development if and when the technology is proved and exploitation becomes competitive.24 Such an outcome ought to be acceptable to all nations.
In such an institutional structure, the United States and its companies would have more influence over the Authority than its voting strength in the Council and Assembly might imply. The significant U.S. technological lead would provide this country with important leverage in the development of the Authority and its treatment of exploiters, and this influence is likely to continue for some time. Similarly, the great influence of the United States worldwide would have a direct bearing on the actions of the Authority.
Second - and again in a context of American technological lead - the United States could reasonably improve on Secretary Kissinger's suggestions that the United States would be willing to assure that the Enterprise comes into operation. Further specific proposals to assure that the Enterprise would have the capital, technology and expertise necessary not only to come into operation but to become a viable operation and to compete with state and private exploiters would go a long way toward breaking the deadlock.
These proposed compromises are not painless. But the alternative is a collapse of the Conference and unilateral action, with only the hope that an uncontrolled situation might in time give way to customary international law or a multilateral convention. And here I doubt that the scenario for which the deep sea mining industry has lobbied is possible, i.e., that the developed countries would then combine (necessarily against the developing countries) to support the United States and to create their own favorable regime for the deep seabed.
In my opinion, other developed countries are unlikely to support a unilateral attempt by the United States to get its new and unproved industry going, particularly in light of the expected strong opposition of the developing world. It can be expected that in addition to denunciations of unilateral action, the developing world would obtain condemnatory resolutions at the United Nations General Assembly. Economic boycotts might be directed against the countries involved and against the participating companies, and suits before the International Court of Justice are conceivable, where the outcome could not be predicted. Even the possibility of high seas sabotage is not out of the question. There is no doubt that any nation which takes unilateral action will lose international goodwill, especially with the developing world.25
In such circumstances, the Soviet Union would probably find it advantageous to see the United States isolated from the developing countries, particularly since it has little need for the resources of the deep seabed. And even the West European countries and Japan might be reluctant to go forward unilaterally; as we have seen repeatedly since 1973, their dependence on developing country raw materials is not conducive to boldness, even in the exercise of much clearer legal rights than this would be. Both these developed countries and the Soviet Union would also be reluctant to encourage early U.S. development of deep seabed mining because they would like more time to develop their own technology to compete with the United States. A few would see delay as advantageous to their own land-based production.
Thus, the United States could not rely on receiving active support from other developed countries. In order to give the industry the opportunity to produce what may turn out to be only a limited quantity of metals that are not immediately needed, the United States government would have to incur alone the political and economic repercussions as well as the costs of military protection.
True, all of the developed countries do have a common interest in minimizing the control of the Group of 77 over international commodity markets. Thus, whether these countries would ultimately oppose the United States to the point of joining with the developing world in a deep seabed treaty largely dictated by the Group of 77 is a question on which one can only speculate. Much would depend on the resolve of the United States and the Group of 77. I doubt whether finding the answer would be worth the costs of such a struggle.
In the final analysis, I believe that the compromise approach which I have outlined and which is substantially found in the negotiating texts should be acceptable. As discussed above, the hard-line members of the Group of 77 want a regime for the deep seabed conforming to their view of the New International Economic Order, which requires an increased role for the developing world in economic affairs. Compromise would give them such a role in the seabed - though not the majority control some are demanding. On the other hand, if the United States were to succeed in unilateral action, the developing world would play no role in seabed exploitation.
From another perspective it is clear that most of these nations share many economic interests in seabed production with the developed countries. They are also consumers of these metals and seek an adequate supply of resources at a price which is not prohibitively high. Although land-based producers of these metals fear competition from seabed production, few such countries rely heavily on exports of these metals, and, with the possible exception of the cobalt producers, the adverse impact of seabed production is likely to be small.26 Many developing countries believe that they will benefit from deep seabed production, and there is some pressure within the group to create a regime which makes it economically and politically attractive for the United States and other developed countries to invest in deep seabed mining.
In sum, a compromise regime should be negotiable which would allow deep seabed mining under a single joint venture system or under a parallel system of exploitation in which both the Enterprise and state-sponsored enterprises would have access to the resources. Shared political control of the developed and developing countries and effective dispute settlement procedures should be acceptable to both groups since it is in the interest of all concerned to conclude a treaty settling this matter.
In terms of the Law of the Sea alone, a glance back over the preceding arguments will show how serious would be the consequences of failure to reach agreement in the coming climactic session of the Conference. Territorial limits, rights of transit, degrees of resource control - all would be thrown wide open to a renewal of the kind of national claims that have characterized the last 30 years. It seems almost axiomatic that it would be the United States and other active maritime states that would suffer most from such a jungle situation.
Yet one may ask: Might not the subjects under negotiation be separated - contrary to the understanding that has so far governed the Conference - so that the subjects that are settled would be assembled as a convention and come into force, while remaining issues would continue to be negotiated?
Unfortunately, this route appears to be infeasible, in the judgment of virtually everyone who has been close to the negotiations. The quid pro quos made to obtain the present understandings have so intertwined the negotiations that any attempt to isolate the deadlocking issues might cause the whole Revised Negotiating Text to unravel, leaving only the most unimportant subjects for codification.
Moreover, the greatest potential for future national claims and international conflict exists precisely with respect to the two major deadlocking issues - the legal status of the economic zone and the regime of a deep seabed. A convention that left these issues unsolved would be a hollow shell.
Finally, there is the wider perspective in which the Law of the Sea Conference must, in the last analysis, be approached. Inescapably, these negotiations pose the broader issue of world order. The problem of the oceans is only one of a number of universal issues that may require multilateral if not universal solutions if the future of mankind is to be optimally protected. Energy, raw materials, outer space, food, the environment, the Arctic and Antarctic, as well as the development problems of the developing countries - all these now call for multilateral solutions.
A failure at the Law of the Sea Conference would surely have an adverse impact on these other issues. Many nations, including the United States, have invested much talent, time and money in the Law of the Sea negotiations. Foreign Offices and legislatures are deeply concerned about the cost of such a negotiation and are questioning the wisdom of the investment. If the Law of the Sea Conference fails, it may be difficult to obtain the governmental and individual support needed for similar multilateral negotiations in other areas, unless the opportunities for success are great.
The importance of near-universal agreement in resolving certain international issues is clearest in the case of common property resources such as the environment, ocean resources and outer space. As free resources, certain of the costs of use are not directly felt by the user. Consequently, there tends to be over-utilization of such resources, causing net losses to the international community. Without agreement on the limit to such use, over-utilization will continue until the resource is depleted. Thus, certain fish populations are being irrevocably destroyed and the ocean irreversibly over-polluted. Since all users must be limited to avoid over-utilization a universal agreement is necessary.
Although energy, raw materials and food are not usually derived from a common property resource, the universal negotiations may be of value for these issues. All nations participate in some degree or another in the production, pricing, distribution and consumption of these resources and will want to play a role in the formulation of changes in the system. One would only have to look as far as the current UNCTAD commodity meetings and the Paris North-South Dialogue to conclude that such a universal interest exists. Satisfactory resolution of these issues probably requires the creation of international institutions and programs to assist in certain aspects of management, development or even utilization of some of these resources.
There is no doubt that the members of the Group of 77 should be motivated to preserve the viability of multilateral negotiations on a wide variety of issues. Many goals of the Group of 77 can only be accomplished through a multilateral treaty. Furthermore, the strength of their unity is most effectively brought to bear in a multilateral conference setting. Thus, the long-term interests of the developing countries may be better served by success at the Law of the Sea Conference and maintenance of the viability of multilateral negotiations.
It has been argued that it is in the long-term interest of the developing countries to take a very hard-line position at the Conference because this would provide leverage on the other international issues. Similarly, it has been argued that a multilateral approach to these problems is not desirable for the United States and other developed countries, since their leverage would be greater outside of a multilateral forum. With the exception of a few speeches, the Ford Administration used this confrontational approach; a number of other developed countries appear to concur.
In addition to economic interest groups, there are other groups at the Law of the Sea Conference which have staked out equally hard-line positions for their particular issues. Such groups include the Group of Landlocked and Geographically Disadvantaged States, the straits states, the archipelagic states, and the coastal states. Of course, the members of those groups are integrated into the broader economic interest groups when economic questions are under discussion. However, on issues of special interest to them, these countries tend to be intransigent. Before maintaining such hard-line positions those groups ought to take into account their broader interests, especially their interest in the viability of multilateral negotiations.
In my opinion, a better attitude for all participants is one that views this negotiation as a building block toward a multilateral approach to other universal issues. Increased future leverage is meaningless if the negotiating forum cannot produce the necessary results. A hard-line position will be fruitless if the Conference fails.
Moreover, the interdependency of nations is undeniable. Thus, a rapprochement between the developed countries and the Group of 77 is important. Continued escalation of North-South tensions will damage chances for resolving the many resource issues facing the world at the end of the twentieth century. Unfortunately, collapse of the Law of the Sea negotiations and the unilateral actions that would inevitably follow would be critical in this regard. If both the developed and developing countries would jettison their hard-line positions in favor of a reasonable compromise, future credibility of both groups could be retained and the availability of universal negotiations would be preserved.
It is a fact that the options available to nations at this stage of the negotiations are limited and present, to some, uncomfortable choices. There is no doubt that the subject matter limited the options, although procedural aspects such as the timing, composition, organization, availability of information and linkages to other issues would appear to have been significant factors. Nevertheless, history cannot be reversed. Perhaps future negotiations will be structured to produce better results.
Near the end of any significant international negotiation a critical deadlock is likely to develop when the important political issues are reached. The mere existence of a deadlock, therefore, is no reason to conclude that the Law of the Sea Conference will be a failure. However, so far the negotiations have proceeded with little consideration of the impact of failure on other aspects of international relations. The progress of the negotiations should not be evaluated solely on the basis of specific issues or even a group of key issues. Rather, a proper evaluation of the political and economic compromises necessary to break the deadlock and to conclude the negotiations requires a broader review of the negotiations. The direct and indirect advantages of a convention must be identified and communicated to the nations concerned. It is in this light that the conclusions made in this article are presented.
With this perspective it becomes clear that all countries in the negotiations, particularly the United States, must quickly, but tactfully, move toward the necessary compromises. This option is available to President Carter if his Administration acts with dispatch. Such a change could produce a successful conclusion to the Law of the Sea Conference that would minimize maritime disputes, satisfy the aspirations of the developing world, permit deep seabed mining and facilitate the resolution of other international problems. Failure to make such a change will doom the Conference and result in destabilizing, illegitimate unilateral actions detrimental to all in the long run.
2 The First Committee is the forum for negotiation of a deep seabed regime, the Second Committee for the main boundary, transit and resource management issues; and the Third for the marine environment, scientific research and transfer of technology matters. The Plenary has responsibility for the preparation of texts concerning a compulsory dispute settlement system, and of preliminary and final clauses to the Convention.
3 The Negotiating Text is in U.N. Document A/CONF.62/WP.8/Rev. 1/Parts I-III and A/CONF.62/WP.9/Rev. 2, which contains Part IV. Later references to specific Articles and Annexes refer to this Text.
4 The American law is the Fishery Conservation and Management Act of 1976. It takes effect March 1, 1977. A summary of all national claims as of late 1975 is found in National Claims to Maritime Jurisdiction, U.S. Department of State, 3rd Rev., December 23, 1975. Other nations that have subsequently announced their intent to make similar claims include Canada, Denmark, the Federal Republic of Germany, France, Guatemala, India, Norway, Pakistan, South Africa, Sri Lanka, the U. K., and the U.S.S.R.
5 See Introductory Note of the Chairman of the Second Committee to Part II, the Revised Single Negotiating Text, p. 4, and United States Delegation Report, Third United Nations Law of the Sea Conference, New York, August 2-September 17, 1976, p. 9. This Delegation Report is an unclassified summary of the status of the negotiations.
8 For a comprehensive review of the environmental issues raised by deep ocean mining see R. Frank, Deep-sea Mining and the Environment, A Report of the American Society of International Law Working Group on Environmental Regulation of Deep-sea Mining, 1976.
9 The U.S. voting proposal, informally distributed at the 1976 summer session, would have approximated the traditional format for commodity agreements, basing voting power on each country's production and consumption of the relevant metals. Under such a formula, it should be noted, not merely developed countries but other potential combinations of large producers or consumers, developed or developing, would have the veto. U.S. Delegation Report, supra note 5, p. 5; see also Law of the Sea Status Report of Congressmen McCloskey and Gilman, Congressional Record, September 29, 1976, p. 149 (daily ed.).
10 Part I of the Text is a complex document that makes an analysis of the control issue very difficult. Although it is filled with policy statements that appear to give the Authority much discretion, the more technical language appears to restrict that discretion severely. It provides for a parallel system of exploitation under which state and private exploiters may make application with state sponsorship to exploit either of two tracts that the applicants identify (Part I, Annex I, para. 8.d). The Authority is to award one tract to the applicant and the other is to be banked for future development by the Enterprise and, perhaps, developing countries. If there are no competing applications for the tracts and the applicant satisfies certain uniformly applied requirements, the Authority is required to enter into negotiations for a contract to explore and exploit a tract and "shall conclude a contract" (Part I, Annex I, paras. 5-9). The Text does not explicitly state which organ is to conduct the negotiations or approve the contract, although an analysis suggests that the Technical Commission conducts the negotiations and the Council ultimately approves the contract and all plans of work (Part I, Articles 28 and 31). The Technical Commission is composed of experts in relevant fields chosen by the Council (Part I, Articles 29.1 and 39.1). Although the Assembly has the power to set general policy of the Authority (Part I, Article 26), many of the more important policies are already contained in the text (Part I, Articles 7-22). And it is the Council that exercises control of "Activities in the Area" to the exclusion of any other organ of the Authority (Part I, Articles 24.4 and 28.2 [x]).
Thus, in order to exploit the nodules, it appears that the applicant must obtain an affirmative decision of the Council. The composition and voting arrangements of the 36-nation Council have not been changed since the issuance of the 1975 Geneva Informal Single Negotiating Text, and the negotiations have not refocused on that article. It provides that the membership is to be chosen by the Assembly (composed of all member-nations) with the allocation of seats based on technological development, economic development and geographical distribution (Part I, Article 27.1). See Jonathan I. Charney, "The International Regime for the Deep Seabed: Past Conflicts and Proposals For Progress," Harvard International Law Journal, Winter 1976, p. 15.
15 Convention on the Territorial Sea and the Contiguous Zone, U.S. Treaties and Other International Agreements, Articles 14-20, signed April 29, 1958, Vol. 15, p. 1606. See S. Slonim, "The Right of Innocent Passage and the 1958 Geneva Convention on the Law of the Sea," Columbia Journal of Transnational Law, Vol. 5, No. 1, 1966, p. 96; George P. Smith, "The Politics of Lawmaking: Problems in International Maritime Regulation - Innocent Passage v. Free Transit," University of Pittsburgh Law Review, Spring 1976, p. 487.
17 For example, the Text recognizes not only the right of archipelagic states to draw extensive baselines between their islands but the right to the resources found within the lines as well as 200 miles seaward (Part II, Articles 119-123). And although the text provides for archipelagic transit for foreign ships and aircraft, it recognizes the right of archipelagic states to set sea-lanes, to establish certain environmental standards, and to conduct certain enforcement activities (Part II, Articles 125 and 126). These rights are very likely to be sufficient to protect the substantive interests of the archipelagic states. Similar benefits are accorded the straits states to delimit navigational routes, to set environmental standards, and to enforce those rights or to assure their enforcement (Part II, Articles 39 and 40).
18 These include at least a general provision for the establishment of international standards (Part III, Article 21). And in their economic zones, coastal states may, under certain circumstances, establish regulations to prevent vessel-source pollution in clearly defined areas when international standards offer insufficient protection (Part III, Article 21 ). Coastal states may also establish laws to control pollution from vessels in ice-covered areas within their economic zones, when there is a threat to the ecological balance (Part III, Article 43). There is also agreement on the obligations of states to establish other standards to control marine pollution from activities under their jurisdiction (Part III, Articles 17, 18 and 22). In the area of controlling vessel-source pollution, a significant advance is that national and international standards may be enforced against violating vessels by states other than the flag state (Part III, Article 30). The Text also requires distribution of environmental impact statements from states which expect their activities to cause significant change in the marine environment or which are currently polluting the environment (Part III, Articles 15 and 16).
19 The most recent Dispute Settlement Text was issued as U.N. Document A/CONF.62/WP.9/Rev. 2, November 23, 1976. It provides for four alternative dispute settlement procedures to be used at the option of the parties to the dispute. Special dispute settlement provisions are also provided for in the deep seabed Negotiating Text (Part I, Article 24 and Part I, Annex III).
20 The bills during the last session of Congress were: Deep Seabed Hard Minerals Act, S. 713, 94th Cong, 2nd sess, 1976; and Deep Seabed Hard Minerals Act, H. R. 11879, 94th Cong, 2nd sess, 1976. Recently Congressmen John Breaux and John Murphy re-introduced the House bill in the new session of Congress as H.R. 3350.
21 The National Academy of Sciences Panel on Occupational Safety in Marine Mining concluded in a recent study that "no total [deep ocean mining] system has yet been proven reliable to support commercial operations." Report, supra note 7, at ix.
22 It is true that the United States currently imports substantial, and in some cases overwhelming, percentages of its needs in the four minerals: 74 percent for nickel, 15 percent for copper, and 99 and 98 percent respectively for cobalt and manganese. However, these percentages obviously reflect the present facts of price and ready availability from many sources, including friendly developed countries - Canada, for example, is our largest foreign supplier of both nickel and copper.
For non-fuel minerals generally, the U.S. Geological Survey has taken a hard look at possibilities of substitution, existing stockpiles and domestic availability of three possible kinds: Reserves, comprising economically recoverable material in identified deposits; Identified Subeconomic Resources, comprising identified deposits that are not yet economical to develop but would become so if the price rose; and Undiscovered Resources, comprising deposits geologically projected to exist that would yield metals economic to exploit. The combination of these sources leads the Geological Survey to the conclusion that for all four of the metals in question the United States would be able, if necessary, to meet its demand from domestic sources for at least a period of 25 years. This projection does not even take into account the enormous possibilities of substitution and recycling, as well as existing stockpiles. Mineral Resources Perspectives, U.S. Geological Survey Professional Paper No. 940, 1975, Table II, p. 6. See also U.S. Mineral Resources, U.S. Geological Survey Professional Paper No. 820, 1973; U.S. Import Dependence on the Four Basic Deep Sea Minerals, U.S. Treasury Department, May 1976 (unpublished); U.S. Commodity Data Summaries - 1976, U.S. Department of the Interior and Bureau of Mines, 1976; Deep Seabed Hard Minerals Act, Report of the Committee on Interior and Insular Affairs, No. 754, U.S. Senate, 94th Cong. 2nd sess, 1976.
Obviously, the use of substitutes and presently uneconomical sources would entail substantial costs in relation to present prices paid for our supplies of these minerals. But in relation to the overall economy - or to the costs of the recent oil price increases - the costs could be small indeed. Furthermore, it is exceedingly unlikely that the United States would ever need to supply this demand from domestic sources exclusively.
25 Some have argued that the world response to the 1976 U.S. law claiming a 200-mile fishing zone was relatively mild (contrary to some predictions at the time), and that the same would be true for unilateral U.S. legislation and action concerning the deep seabed. To me the comparison suggests exactly the opposite conclusion. In the case of the fishing zones, the Congress was acting with the tide of general sentiment, and indeed merely duplicating actions already taken by many developing nations. In the case of the deep seabed, unilateral U.S. action would be dead against the tide of general sentiment, lacking in any precedent and flying in the face of strongly supported General Assembly Resolutions.
26 See United States of America: Working Paper on the Economic Effects of Deep Seabed Exploitation, U.N. Document A/CONF.62/C.1/L.5, August 6, 1974, and supra note 7. Although the revenues from deep seabed production could be used to compensate countries that may be adversely affected by seabed production, it is questionable whether the revenues would be sufficient. For a discussion of the use of revenues from seabed mining, see J. Charney, "The Equitable Sharing of Revenues from Seabed Mining," Policy Issues in Ocean Law, Studies of the American Society of International Law Working Group on Technical Issues of the Law of the Sea, 1975.