According to conventional wisdom, a failure to achieve a comprehensive agreement at the Law of the Sea Conference would have potentially disastrous consequences. A reappraisal of U.S. interests in these negotiations, however, indicates that this assumption is, at least in part, fallacious. The United States can best serve its proper interests and the world's by reorienting its Law of the Sea strategy and advancing a set of policies and initiatives that do not depend upon Conference approval for their beneficial effect.

The closing events of the last session of the Conference provided a strong stimulus to a fundamental rethinking of U.S. interests and strategy with regard to the Law of the Sea. On July 20, 1977, the president of the Conference released a negotiating document that many hoped would mark the final stage in the seemingly unending quest for a comprehensive treaty. On the same day as the "Informal Composite Negotiating Text" (ICNT) was released, the United States - without whose participation there cannot be a workable treaty - termed the deep seabed provisions of the text "fundamentally unacceptable." The chairman of the U. S. Delegation stated publicly that in light of the text's "unfortunate, last-minute deviation from what had seemed to be an emerging direction of promise in the deep seabed negotiations. . .our government must review not only the balance among our substantive interests, but also whether an agreement acceptable to all governments can best be achieved through the kind of negotiations which have thus far taken place."

Among those familiar with diplomatese, this was interpreted as very strong language - threatening what many internationalists view as unthinkable, the withdrawal of the United States from a major U.N.-sponsored negotiating effort, and a possible "rupture" in the "North-South dialogue." Indeed, such a withdrawal is taken to be unthinkable by the Conference leadership, who plan confidently for a degree of procedural reform, resulting in the participation of the United States at the resumption of the formal conference in March 1978, and preparation of a full draft treaty by April 1978.

Within the U.S. government, the announced state of "searching review" continues. And this is surely a good thing. It is desirable for tactical reasons at a minimum. But it is also desirable substantively. It is perhaps the last practicable opportunity to reexamine conventional Law of the Sea wisdom - before the executive branch becomes engaged in what may be an uncertain quest for ratification.

II

One of the many remarkable characteristics of the U.N. Conference on the Law of the Sea is the scope of its ambition. Simply put, it seeks to establish a system of governance - political, economic, administrative and judicial - for two-thirds of the earth's surface. The apparent grandiosity of this conception should be set against the consideration that the surface involved is now largely undeveloped - indeed, covered with water. Nonetheless, the simple geopolitical conception is inescapably impressive. And it is obviously the more so when consideration is given to the fundamental connections between the oceanic two-thirds and the continental one-third of the earth.

The oceans are not merely a historic source of life and romantic undertaking. They remain literally vital to human existence and a source of exciting promise. They provide major portions of the world's protein, oil and gas supplies, and are of increasing importance to the satisfaction of expanding global food and energy demands. They enable efficient expansion of international trade through economical commercial transportation. They permit efficient global information exchange via undersea cable communication. On their seabeds rest vast quantities of hard minerals essential to industrial development. Their ecology influences patterns of weather, the quality of the atmosphere, indeed, the basic global environmental balance. They are essential to the conduct of conventional war, and also to the protection of peace - particularly through the preservation of a strategic military balance. And, not least, they are a source of aesthetic satisfaction and a vast frontier for man's continuing inquiry and exploration. Further, the goal of the conference to regulate all these areas gives the oceans an additional function, also arguably vital: they now provide the focus for a major experiment in global problem-solving and global institution-building.

The United States, of course, has important interests in all these functions. For the past decade, however, "national security" interests - particularly interests associated with military functions - have been predominant in the development of U.S. policy toward a comprehensive treaty on the Law of the Sea.

In 1966-67, the primary motive for initial U.S. attention to the possible desirability of a new Law of the Sea conference was an interest in stemming the tide of "creeping jurisdiction," the expanding claims of coastal states to increasingly "territorialist" extension seaward. In the preceding decade, since the close of the first U.N. Conference on the Law of the Sea in 1958, the expansionist pattern had become clear. Whereas 54 percent of coastal states claimed territorial seas of three nautical miles or less in 1958, a decade later the number had dropped to 35 percent. In the same period, the number of coastal states claiming territorial extensions of 12 miles or more increased from 18 percent to 43 percent.

This pattern presented obvious difficulties for the military, in the face of apparent U.S. foreign policy demands. Expansion of territorialist claims of 12 miles or more, if accepted, threatened to "close" more than 100 straits, removing from them the traditional high seas freedom of transit, and imposing instead the restrictions of "innocent passage." In particular, imposition of an innocent passage regime could require submarines to surface when passing through straits, and could seriously limit air overflight in crisis situations. Further, the functional expansion of coastal state jurisdiction toward increasingly broad "security zones," "economic zones," and "environmental protection zones" - independently of the straits problem - could threaten the capacity of the military to preposition and project force. Given the then-limited reach of submarine-launched strategic missiles and the associated concern for maximum ocean space in which to hide, and given the apparently unlimited intended reach of U.S. conventional forces a decade ago (the United States was increasingly committed in Southeast Asia), it was perhaps inescapable that the United States should consider the avoidance of "creeping jurisdiction" to be a dominant oceans-policy interest.

It is this perception of national interest that led the United States to help foster the current Conference. Along with a genuine concern for the disparities in international wealth, this perception also importantly influenced the United States to pursue a comprehensive treaty - linking the lure of revenue-sharing from resources of the ocean floor to the effort to restrain coastal state territorialism. It is the perceived importance of this interest in stemming jurisdictional "creep" that has given the Department of Defense special weight within the U.S. Law of the Sea Delegation. And it is this assumption that has consistently guided not only the thinking of U.S. Delegation heads, but also the allocation of their direct personal negotiating effort.

However, this view of national interest - and particularly its tie to an interest in a comprehensive, global treaty - may now be misguided. It is at least excessive in its emphasis - a conclusion that can be reached by any of the following three lines of argument.

The first is the most extreme and most heretical. One might argue that it is not in the U.S. interest to stem the jurisdictional "creep" which threatens generally to limit freedoms of military maneuver. For purposes of argument one might assume the following U.S. foreign policy framework, which corresponds to outlines increasingly accepted today: that the United States has an overriding interest in maintaining a satisfactory strategic balance, a need to assure stability in the Middle East, and a need to control the spread of nuclear destructive capability; that U.S. policy must be particularly sensitive to the obvious special importance of relations with the great American countries with which it shares thousands of miles of borders and a certain amount of history; that the premise of "trilateralism" is to be taken seriously - that security alliances with Japan and Western Europe are to be given primacy; and that the implied premise of, for example, the "Nixon Doctrine" and the announced intention of Korean troop withdrawal is to be generalized. That is, one might assume that there is to be a consistent practical accommodation of the limits on U.S. politico-military capacity with respect to intervention in distant developing countries.

In terms of conventional requirements of the military, such a U.S. foreign policy would be less global in its ambition (which is not to say that the policy itself would be less ambitious) than it was when Law of the Sea policy was conceived a decade ago. Given this policy framework, we must now reconsider the extent to which increased territorialism would constrain direct U.S. foreign policy interests - and the comparative impact on the Soviet Union.

With the increased range and sophistication of U.S. missiles and missile-launching submarines, it is arguable that transit through straits is not necessary to assure strategic deterrence. Further, there are neither straits nor third-party economic zones separating the United States from either Japan or Western Europe. And the posited foreign policy would not seek the capacity to project force off the coasts of distant developing countries - the legal status of their waters would not, therefore, be a determinative constraint. (Even if the policy did seek such capacity, the realities of U.S. domestic politics and competing demands for resources would be the determinative constraints on distant force projection.) In the limited number of hypothetical cases where the United States might justifiably move militarily to protect its citizens from gross abuse in a distant developing country, it would presumably do so, for the foreseeable future, regardless of the state of international law - and with the understanding of the world community.

In contrast to this pattern of irrelevance with respect to most direct U.S. interests, however, the degree of territorialism has significant relative impact on Soviet interests. In the first place, the Soviet Union is far more dependent on transit through straits than is the United States. Second, the Soviet Union's foreign policy is less constrained by domestic politics than is that of the United States; the relative impact of external constraints is, therefore, greater for the Soviet Union. This suggests what may be a counter-intuitive conclusion: that an increasingly territorialist regime could be of net advantage to the United States.

The argument has not, however, addressed the obvious problem that universal territorialist expansion could create with respect to U.S. interest in Middle Eastern stability. In particular, territorialist expansion could seriously limit naval and air transit of Gibraltar and fleet movements in the Mediterranean. To the extent such limits are even arguably unacceptable, the United States (joined in some cases by the Soviet Union) should simply and firmly, in both diplomacy and practice, stand on what has been traditional international law with respect to military freedoms in the Mediterranean.

It is not utterly inconceivable, although it is highly unlikely, that the interested parties might negotiate a special Mediterranean agreement (possibly in the context of a Mideast settlement), which would formally affirm and preserve necessary freedoms. More likely, the United States would be asked to pay a price for these freedoms through increased pressure in otherwise unrelated bilateral negotiations with a limited number of Mediterranean states. In view of the fact that these freedoms have already proved negotiable in the Conference - without the payment of a significant price to these Mediterranean states, and without causing them evident pain - and given the breadth of interest in preserving Middle East peace, it does not seem unreasonable to expect that the necessary Mediterranean freedoms could be preserved, in any likely case, at a thoroughly tolerable price.

Be that as it may, the fact that universal "creeping jurisdiction" can be shown to present serious problems - with respect to a specific area such as the Mediterranean, or one (perhaps as many as four) of the 116 straits that a 12-mile territorial sea would affect - is hardly sufficient to justify a conclusion that "creeping jurisdiction" must be universally opposed.

A second general line of argument questioning the notion that a fundamental U.S. national security interest is in stemming the tide of jurisdictional "creep" proceeds inductively from the evidence of contemporary events. In the 20 years since the first U.N. Conference on the Law of the Sea, claims of territorial seas have consistently expanded. Sixty-nine percent of coastal states now claim territorial seas of 12 nautical miles or more. Eleven states claim territorial seas of 200 miles. In addition, 20 states specifically require prior permission or notification for warships to enter their territorial seas, and 32 states now claim one form or another of "security zone." The pattern of territorialist expansion has been inescapably clear - as, of course, have the individual cases. And the pattern of U.S. response has been equally clear. It has been, in general, a pattern of acquiescence. While religiously continuing obeisance with respect to the traditional high seas legal position, the United States has nonetheless consistently allowed that position to be eroded in practice. In the overwhelming majority of cases, the United States has treated the state of "relations" with the country involved as more important than the high seas freedom that may have been lost.

In addition to this executive branch pattern, there is the evidence of congressional behavior. It is generally agreed that the U.S. Congress has been a major force in increasing, not stemming, the territorialist tide - particularly by enacting the Fisheries Conservation and Management Act of 1976. The Congress is now seriously considering unilateral extension of U.S. jurisdiction for purposes of environmental protection. It is also seriously developing deep seabed mining legislation that, although it technically does not violate the traditional high seas conception, will be interpreted by many as doing so. It seems reasonable to suggest that if stemming the tide of "creeping jurisdiction" were a fundamental national security interest, one would have observed a different general pattern of executive and congressional behavior.1

The third line of argument that might challenge the prevailing perception of national interest and the Conference is less heretical than the first two. It could accept the emphasis on the need to stem "creeping jurisdiction," but it would question whether this objective is best pursued through comprehensive negotiations.

It is comprehensive negotiations, of course, that seemed attractive to the United States, and to several other key states, in planning for the Conference. As noted, the initial U.S. position called for a favorable linkage of restraint upon coastal state territorialism with revenue-sharing from resources beyond the 200-meter isobath and a licensing system for seabed mining. While this position may have adequately conceived the attractiveness of revenue-receiving, it failed to take into account the associated unattractiveness of revenue-sharing for those (including important allies) who would otherwise receive more. In addition to this practical shortcoming, the U.S. revenue-sharing proposal suffered from a psychological weakness in the connotation of its label, "trusteeship." For all practical purposes, the proposal has been rejected.

In rejecting the "trusteeship" proposal and limiting revenue-sharing to resources beyond 200 miles from shore, the Conference has changed fundamentally the nature and value of linkage. It has drastically reduced the amount of near-term revenue to be shared by excluding the vast oil and gas reserves located within 200 miles beyond the 200-meter isobath. In so doing, it has shifted the collective developing-country perception of interests. Revenue-sharing would now apply principally to deep seabed mining, and significant revenue from this source would not be available until 1990 at the earliest. Given this removal of direct, positive, near-term economic interests for most developing countries, there is a tendency for them to give greater weight to their ideological interests, while also viewing more sympathetically the need to avoid near-term economic costs that might be paid by only some among them, the land-based hard mineral producers. As a result, the Conference now presents the United States with a comprehensive treaty text that includes limitations on territorialist expansion, but that also includes an ideologically antithetical deep seabed mining regime with a highly undesirable limit on production. This obviously is a very different trade from that originally conceived by the United States. Indeed, the original conception did not involve a "trade," but simply the linkage of independently desirable proposals.

The trade now suggested by the Informal Composite Negotiating Text could have a further absurdly ironic twist: the proposed new International Authority could combine normal bureaucratic expansionary tendencies with the legal authority to regulate scientific research, mining, and associated activities affecting the environment - and thus limit traditional high seas freedoms beyond 200 miles. But even without this twist, it seems clear that in assessing the value of a comprehensive treaty, the gains associated with limiting territorialist expansion will have to be balanced against considerable losses in other areas.

This suggests the possible desirability of "un-linkage." It is feasible analytically to separate broad substantive areas for independent negotiation. And in practice, the business of the Conference has been conducted this way through formally separate committees. But it is probably not possible to get the Conference to agree to separate that which it has now brought together. Although the work of the committees has been conducted independently, it has been with the understanding that their ultimate combined product must constitute a "package deal." And while there has been no significant, formal cross-committee trading, the concept of a "package deal" has surely influenced the development of delegations' substantive positions and tactics. Indirectly, it has influenced the capacity to achieve what is essentially conditional compromise. For this reason, if not simply for reasons of inertial force, the Conference is now likely to rise or fall as a "package." And "un-linkage" is a practical possibility only if one would assume or accept the Conference "falling."

The United States is obliged, therefore, to assess the likely consequences of the Conference "falling," to weigh the full range of its interests in possible "packages," to analyze current limits on the negotiability of an acceptable package, and to reorient its strategy in the light of this analysis. The remainder of this article is a subjective assessment of these issues, organized as an extended line of argument toward one possible reorientation of strategy.

III

The United States announced its entry into the 1977 session of the Law of the Sea Conference with a rhetorical flourish: "Rarely has any generation had so clear a choice to make between order and anarchy."2#2 One might be inclined to interpret this statement more as a commentary on the real competition for media attention in America than on the likely competition for control of the oceans. But the statement generally conforms to what has become a conventional view among Conference advocates: that without a treaty, the world will witness "the biggest smash and grab since the European powers at the Berlin Conference in 1885 carved up black Africa."3

This view reflects what is, as one might expect, a profound cultural aversion to unilateralism within the community of individuals (not states) involved in multilateral negotiations. It is perhaps particularly characteristic of the Law of the Sea Conference community, peopled as it is predominantly by internationalist lawyer-codifiers. The internationalists' tendency to favor collective over individual action is combined with the codifiers' tendency to wish to see the world in neat, static terms. Above and beyond practical considerations, there is an aesthetic antipathy toward the "disorder" of non-uniformity, and a general distrust of the possible benignness of self-regulating, dynamic processes. More directly to the point: warnings of the "disaster" of Conference failure and associated unilateralism merit careful examination - not only because they may be right, but also because they may not be.

The practical concern from the U.S. perspective, among those who fear "disastrous consequences" of unilateralism, is that the oceans will be "carved up" - and that, as a result, scientific research and commercial and military mobility interests will be affected extremely adversely. The fear of adverse effects of unilateralism upon the freedom of scientific research is justified. But the realities of the negotiating process are such that the best likely outcome of the Conference will not significantly slow the "creep" of coastal state jurisdiction over scientific research. Having discussed military interests above, the need here is to focus on the seriousness of the threat to commercial interests.

It must, of course, be granted that commercial navigation interests are important to the national interest. Indeed, they are essential - as is most evident in the case of oil transportation. Serious interference with such transport could legitimately be said to promise disaster. But it must be asked: What are the prospects of such serious interference without a treaty?

The doomsayers seem to imagine that a decentralized, nonuniform legal framework will result in something like a rampant medieval disease with states spreading pikes across sealanes, breeding violent parochial conflict. This is, of course, a theoretical possibility. But then one must assume not only that states would wish to behave in this manner (as some might), but also that a state's assertion of legal power to close a strait, set a prohibitive fee, impose an unreasonable environmental standard, or otherwise limit transit will endow that state with sufficient power to do so. This assumption is simply not valid.

Further, the very fact that some hypothetical abuses by individual states could have extremely adverse effects for the United States, for other major powers, or for the global economy should suggest that such abuses would not be tolerated, in practice, by major powers or the global community. Indeed, the suggestion should be so obvious that it would only rarely, if at all, be put to the test. The extreme hypotheticals - irrationally diverting tankers or "closing" Gibraltar, Bab el Mandeb, Hormuz or Malacca - make the argument considerably more dramatic, but considerably less realistic.

The more reasonable worry is not that, absent a treaty, consequences will be "disastrous"; rather it is that the system may be marginally less efficient. It is likely, for example, that a decentralized system would yield incongruent environmental protection requirements - initially. But as the incongruity became irrationally burdensome, pressures would mount and appropriate mechanisms would be found to reconcile differences, as necessary. It is possible that increased costs of investment, fees, or delays might arise. But the logistics of enforcement and alternative routes would ordinarily hold these to an acceptable minimum. Where intolerable monopoly rents were sought, they would either not be tolerated - or, as in the recent evolution of fishing zones, the global system would endure some tolerable friction and would adjust. Indeed, the recent history of coastal state seaward expansion generally is an argument that the current decentralized system can move itself to a new equilibrium without centrally negotiated rules, and without throwing itself disastrously out of balance in the process.

There is a major new source of worry for some, however: the prospect of unilateral deep seabed claims, starting with U.S. legislation and resulting ultimately in the "carving up" of the entire ocean. This, too, is a seriously exaggerated concern. In order to preserve the traditional high seas status of the deep ocean area, the bill developed by the U.S. House of Representatives is intentionally drafted in a manner that "in no way asserts any territorial or sovereignty claim." Instead, it would regulate U.S. citizens' deep-sea mining activities under the principle of "nationality" jurisdiction, i.e., a principle based on a state's authority to regulate its citizens and corporations wherever they may be. Arguably, it could nonetheless stimulate territorialist seabed claims. But the number of such claims would likely be very few. And support for such claims in the world community would likely be slight. Developed countries generally would wish to preserve the high seas status and, insofar as they mined the seabed, would likely do so through one legal contrivance or another intended to protect property interests without making sovereign claims. Developing countries generally would wish to preserve the principle of the "indivisibility" of "the common heritage of mankind" - and would have difficulty enforcing deep ocean territorial claims in any case. Their more likely reaction would be to oppose the action of seabed miners by legal counteraction, and to seek effective means of economic reprisal - although their legal case would have to counter the powerful high seas tradition by resting principally on nonbinding U.N. General Assembly resolutions passed in 1969 and 1970, and opportunities for economic reprisal would be seriously limited by a combination of self-interest and logistical difficulty.

It is at least conceivable, however, that countries would make extensive deep ocean claims - and that the "carving" would take place. In terms of ocean "territory" and resource distribution, this would mean that the United States and other developed countries would fare very well - at the expense of the majority of developing countries. The pattern would be similar to the one associated with the expansion of economic zones, which most benefits developed countries.4 Actually the overall effect of carving up the entire ocean by fully extending coastal state jurisdiction would probably have an even more exaggerated tendency to favor developed nations.5 Were developing countries to act in their collective interest, this fact should act as a deterrent to their stimulation of claims. But the same point has been equally evident with respect to economic zone expansion - and individual states have nonetheless pursued their individual interests.

Thus it seems reasonable to argue that further unilateralism would not likely be either destabilizing or fundamentally disadvantageous to the United States.

But unilateralism could have an adverse effect on the balance of global wealth - in which, as a matter of equity and humane concern, the United States must have a profound interest. For it is clearly more likely that states would decide to transfer ocean-based wealth in the context of multilateral negotiation of a more centralized deep seabed regime than in a "unilateral" system. Interest in the pursuit of greater equity is, therefore, a proper conception of a rationale for multilateral Law of the Sea negotiation - as is interest in the possible avoidance of marginal, but tolerable, levels of systemic friction or inefficiency.

However, to conceive of an interest in the avoidance of "disastrous consequences" or "anarchy" as a rationale is to be fundamentally misguided, for it is fallacious to presume that such an interest is at stake. To fail to place this perception of U.S. interest in proper perspective is to ensure that the Law of the Sea Conference must fail. In contrast to the equity-interest conception, which puts the United States in a positive posture, the avoidance-of-disaster conception is doubly negative. It can only lead foreign governments to demand more than they must have - and U.S. negotiators to give away more than they should.

IV

The principal area of negotiation in which more is now being demanded of the United States than can, or should, reasonably be given - the principal area of stalemate - concerns the regime for the deep seabed. It is on the deep seabed that vast mineral resources - including more than 1.5 trillion tons of mineral-rich manganese nodules - await development.6 Here, too, it is essential to place in reasonable perspective what may really be at stake.

From one point of view, aptly expressed in The American Journal of International Law, it would be "one of the great ironies in the history of codification and progressive development of international law," if formalization of agreements already reached in other areas were jeopardized by disagreement over mining of deep seabed manganese nodules - "an activity that has yet to begin; that by the end of the century may account for little more than a dozen mine sites . . .; and that is likely to have less immediate effect on the basic interests of most states than other activities dealt with in the text." On one level, this deflated view of what is immediately at stake through seabed nodule mining is probably appropriate. It fails however, to treat two difficult questions: What are the longer term interests at stake, and how are they to be weighed in the overall balance? Unfortunately, the United States has tended to view its seabed interests primarily in terms of mining, and without much regard for the longer term.

Although the U.S. view has not been entirely consistent - the United States has at times postured as if access to seabed minerals were a fundamental matter of national security - the State Department, and more recently the Defense Department, have sought to place the specter of U.S. "vulnerability" in more balanced perspective by arguing that the prospects of land-based cartelization in these minerals are neither analogous to OPEC nor likely to prove consequential; that the combination of land-based reserves and reasonable stockpile policies provide adequate protection; and that deep seabed mining itself would be vulnerable in wartime.7

The State and Defense Department arguments on non-vulnerability may be seen as consistent with their general concern for the stemming of "jurisdictional creep" - and the specific negotiating situation that seems to demand seabed concessions as a price for a treaty. It is a fair assessment, however, that nodule mining is not a strategic U.S. interest for the near term. But there remains the question of long-term access to minerals. The U.S. steel industry, for example, has expressed some serious concern that the land-based supply of manganese - essential to the manufacture of steel - may be exhausted within 30 years. The current seabed negotiations contemplate a formal review of the seabed regime after 25 years. At that point, developed-country negotiating leverage will have decreased - if, as promised, technology and self-financing capability have been transferred to the new International Seabed Authority. (If these have not been transferred, negotiators will have to cope with difficult arguments as to prior misrepresentation or bad faith.) At that point, also, sea-based production should represent a major portion of world nickel, cobalt, and manganese demand. The future potential for cartelization or political abuse of market power - through the new Authority - could be very high. If this potential is to be dealt with responsibly, if it is not to be traded away by default, it must be addressed in the current negotiating context.

The most important issues at stake in the deep seabed negotiations, however, are not merely questions of manganese nodule mining. What is fundamentally at stake is a set of precedents with respect to systems of governance.

The Law of the Sea Conference seeks to establish an ongoing governmental apparatus for the deep seabed area (the area beyond coastal state jurisdiction - at least half the earth's surface). It would do so through the creation of an International Seabed Authority, which would have policymaking and regulatory powers, along with taxing powers and direct operational capabilities intended to allow it to become fully self-supporting. Its jurisdiction would initially be limited to exploration for, and exploitation of, seabed mineral resources - which, as a practical matter, would seem to mean manganese nodules for the near term. But to assume, therefore, that the precedent-setting importance of the issues involved is similarly limited could prove to be naive and short-sighted.

At a minimum, the seabed regime would govern the development of other seabed mineral resources as these become commercially interesting - petroleum, various gases, water and steam, sulphur, salts, phosphorites, ore-bearing silts, hard minerals in the ocean floor, etc. Commercial prospects for these are not now promising. But exploration and technological development are at what may be a very early stage for the deep seabed. In thinking about the seabed potential, it may be useful to recall the general lack of imagination that characterized the environment in which, for example, Alaska was purchased (and sold) a century ago. (The Alaska analogy may, of course, be misleading; it is in the nature of the problem that one does not know.) Even more to the point is the 1958 Geneva Convention on the Continental Shelf. The weakness of drafting in the definition of its scope reflects the fact that when it was signed - less than two decades ago - there were few who imagined that commercial manganese nodule mining would be technologically feasible.

In time, the Seabed Authority would likely expand its direct jurisdiction beyond mineral resources. It might do so within its initial charter, as noted above, through its responsibility for mining-related environmental regulation. And as the international community finds greater need for regulation of activities beyond coastal jurisdiction, it seems reasonable to expect that it will turn to the relevant governmental apparatus it may have already created, expanding the Authority's charter as necessary.

The precedential significance of the seabed regime extends beyond its direct jurisdiction, however. The world is struggling with the development and modification of global institutions for the increasing number of problems perceived to require global treatment. The struggle ranges from development of conventions for the governance of outer space to the somewhat more earthly reform of the increasingly complex set of institutions associated with the U.N. system. In this context, a new Authority for ocean governance must be a model that commands attention. Indeed, for a very large number of countries, the same individuals who are involved in the Law of the Sea Conference are also involved in the wide range of institution-building efforts associated with the U.N. system. And processes of connection are often rather direct.

There is a less direct process of precedent-setting connection that also merits consideration. It involves not the linkage among evolving global institutions, but the linkage between global institutions and the evolution of state systems of governance. In most federal or quasi-federal systems, the character of the central regime is replicated to some degree among the constituent parts. There seems sufficient reason to assume that this pattern will hold for many states - particularly, perhaps, the newer states - as global institutions are strengthened in their role and influence.

Given all these reasons for attention to precedents, the direction of the seabed negotiations must be deeply troubling for those who believe that the principles of governance affirmed by American experience are worthy of extension. Indeed, the inertial tendency of the Conference is clearly toward a regime that affirms principles of government and economics fundamentally antithetical to both American ideology and pragmatic experience.

This regime would impose an arbitrary governmental system of production and price controls - oriented toward protection of the current system of production and producers, without favorable regard to what may be the economic advantages of new systems of production or the dictates of consumer demand. It would mandate technology transfer - treating technological development as if it were a right in itself, not a favorable consequence of economic incentives and property rights. It would charter a new global commercial entity entitled to do business throughout the world, in favored competition with conventional commercial entities, without being subject to any state taxation. It would establish a new international governmental Authority with tax and regulatory reach far beyond the scope of activities and jurisdiction which require its creation. This Authority would be governed by a "supreme" Assembly on the basis of one-state-one-vote "majoritarianism" - a system which bears no sensible relationship to one-man-one-vote democracy, or to the real distribution of power, values or interests. And it would be governed without checks and balances, without adequate procedural protection of minority interests and without adequate scope for judicial review.

Unless the inertial tendency of the Conference is shifted significantly, the seabed regime of any likely draft treaty will conform in some considerable degree to all (or most) of these objectionable characteristics. From the perspective of one who would weigh these precedential elements heavily, the notion of conceding these to avoid the precedent of Conference "failure" (meaning "lack of agreement") seems absurd. It would be to trade long-term, substantive failure for avoidance of temporary procedural failure. Trading these objectionable elements for marginal gains in the systems of environmental protection and dispute settlement seems out of proportion.8 Trading them for questionable interests in treaty protection of distant-water military mobility seems a tie to the past at the expense of the future. And trading them to protect interests that might just as well be protected without a comprehensive treaty seems no trade at all.

V

Weighing heavily the precedential elements of the seabed regime (as distinguished from seabed mining), and taking the rest of the treaty as being close to fully negotiated (and unamenable to significant change), it is easy to identify what must be the U.S. strategic negotiating objectives from here on. The Conference's inertial tendency with respect to the deep seabed area must be changed considerably - if a treaty worth signing is to emerge. There is, however, no easy means to accomplish this objective.

The negotiating realities seem inescapable. The Conference is regrettably polarized. The United States and a few developed countries are, in effect, on one side, with the "Group of 77" - now comprising over 110 developing countries - on the other. The Group of 77 has formally adopted a full set of extreme positions and associated texts. Although many in the Group of 77 may have accepted the texts for only tactical reasons, it is extremely difficult for them formally to moderate their positions.9 They enforce a kind of rule of unanimity among themselves, which, in effect, now gives veto power to a relatively small number of extremists. The problem is compounded by the fact that many states, believing they have no interest higher than Group of 77 solidarity, instruct their delegations simply to "vote with 'the 77'."

Insofar as there is a significant split within the Group of 77, it is between a group of pragmatists and a group of ideological purists. The former has been dominated by a few land-based producers who are willing to compromise on some issues of principle in exchange for extreme production controls. The ideological purists are dominated by a few individuals whose countries have no significant direct economic interest in a Law of the Sea treaty and who are free to insist on their principles to the end. The split, then, simply suggests the possibility of two different types of unacceptable "compromise" - which elements of the Group of 77 would be willing to substitute for the unacceptable Informal Composite Negotiating Text seabed regime.

There is, of course, no natural groundswell seeking to displace the ICNT regime. Were it not for firm U.S. opposition, the ICNT seabed regime might be acceptable to an overwhelming majority of Conference participants. The U.S. reaction may help assure that the ICNT regime is put aside. But replacing it with an acceptable regime is obviously an entirely different matter.

Analytically, one can identify several types of economic regime that might be acceptable to the United States: a simple licensing regime; a "clean parallel system" in which access is unequivocally assured for state-sponsored parties, and in which an international "Enterprise" is also assured of effective participation; a "unitary joint venture system" in which access is permanently assured, and in which equity interests of state-sponsored parties are fully valued and fully protected on a continuing basis; and, perhaps, a "mixed" system along the lines of the compromise proposed by Norwegian Minister Jens Evensen, but in which access on reasonable terms is more clearly assured and the production control is less severe.10 Such a mixed system could result in a pluralistic variety of seabed miners - including state entities, private corporations, an international "Enterprise," and a range of joint arrangements involving groups of these. Each regime could be designed in a manner that would not affirm undesirable institutional precedents. (There are, of course, additional variants. But all raise the same difficult negotiating issues; and one must beware of the fallacy of the presumed greater negotiability of that which has not been negotiated.)

The first of these alternatives is certainly not negotiable. The second is virtually non-negotiable. The third has less than one chance in 20 of proving satisfactorily negotiable. And the fourth - which is the only alternative among these with a plausible chance - would represent an improvement, from the U.S. perspective, upon a proposal that the Group of 77 is willing to treat as a "basis for further negotiation, but not compromise." Further, in order to get the necessary improvements, the United States might have to agree to a more stringent, quasi-mandatory system of effective technology transfer (through supplementary fair licensing or - venture arrangements). But this new "mixed" alternative, negotiated in its very best possible form, would have highly uncertain prospects of Senate ratification.

Indeed, relating the international negotiating realities to domestic political realities seriously compounds the dilemma. The non-seabed provisions of the treaty (as they now stand) are unlikely to gain a high degree of visibility. Although scientists would probably oppose the treaty, internationalists, many concerned with military and commercial navigation, and many environmentalists would support it, and the balance would be moderately affirmative. But it would not be vigorously affirmative. Senate ratification, in any case, must be viewed with respect to potential negative constituencies, and the one-third of the Senate sufficient to veto.

In assessing the prospects of non-ratification, it would be easy to be misled by the continuity of support for the Law of the Sea Conference during two Democratic and two Republican presidential administrations - and by the further consideration that the principal compromises of economic ideology were advanced by a Republican administration. The substance of the negotiations has had very little public attention, and it has had relatively narrow attention within the Senate. This will change, of course, if there is a treaty to be examined. And if the seabed provisions were to conform with the current inertial tendencies of the Conference, their exposure might prove shocking. They would not only be criticized vigorously and visibly by the mining industry. They would attract criticism from economic interests generally, and from conservative and some traditional liberal philosophers and ideologues. For the seabed provisions would not only lend themselves to extensive criticism on the merits, but also to a high degree of demagogic excess.

Continued quest for a comprehensive treaty, therefore, must be viewed as a risky course. In returning to the Conference, the United States would presumably gain approval of means to remove the grounds for its recent objections to Conference procedures. But having done so, the United States would face the very high probability of finding itself a party to unobjectionable processes of negotiation, capable of producing a widely supported "compromise" that improves on the ICNT - but which is non-ratifiable.

VI

The U.S. strategy, therefore, must not only seek to change the Conference's inertial tendency with respect to the seabed regime; it must also seek to develop a sound contingency plan to be activated in the event of Conference failure. These two general objectives can be mutually reinforcing. A strategy to serve them both could be oriented well by effective pursuit of three more specific objectives.

First, the United States must dispel the impression that it believes, at least partly, that it could not satisfactorily endure Conference failure to reach agreement. This is not an unfounded impression. It reflects what has been a weakness in underlying U.S. policy analysis - compounded by tactically misplaced rhetorical excess, and by the natural tendency of some states to confuse the strength of interest in modifying adverse texts with an affirmative interest in those texts once modified.

For reasons stated, the belief is not only self-defeating as a negotiating posture, it is also wrong. And it is wrong not only with regard to the interests directly treated by the Conference. It is wrong insofar as it presumes that failure to reach agreement would have a serious adverse effect on the "North-South dialogue." The economic interests at issue in the "dialogue" are sufficiently fundamental not to be significantly affected by the outcome of the Law of the Sea Conference. In any case, there is little or no practicable room for developing-country positions to become more extreme. The "climate" might temporarily be affected marginally. But, on the other hand, it could not long be well served by disguising fundamental differences on the merits, where these may be present.

As a second more specific objective, the United States must seek, within the Conference framework, to end what is excessive and artificial polarization between the developed and developing countries by encouraging the potentially wide moderate base within the Group of 77, beyond the land-based producers, to assume greater leadership responsibility. That is, the relative power of extremists within the Group of 77 must be reduced. The United States has no significant leverage to bring to bear upon them, however. Their principal Conference interests are ideological, not economic. They weigh precedential considerations more heavily than the United States has - and seem prepared to insist on their principles to the end. And for some of them, the "threat" of U.S. unilateral mining action is no threat at all. They would welcome the visible opportunity to condemn what they would characterize as "exploitative economic imperialism in violation of 'the common heritage of mankind.'" If the power of the extremists is to be reduced, it must be done by the Group of 77 itself. This requires that the Group come to perceive the extremists' veto as an abuse of power - an abuse which is contrary to the interests of the majority of the Group of 77.

It requires a more sophisticated appreciation of where real interests lie than is possibly connoted by North-South bloc posturing. Here the United States could help by refusing to accept the absurdly simplistic North-South mindset. Indeed, the specific interests and cultures within the South are so widely varied, that were it not for a posture of unity reactively assumed by the North, it is difficult to imagine what abstraction could serve to hold the Group of 77 together.

Abandoning the North-South mindset would help expand U.S. intellectual and practical attention to interests that cut across North and South. Those who worry about Conference "failure," for example, could usefully increase their attention to the extent of this worry among land-based producers (who have a powerful interest in getting some form of production control), and among moderate African states (who have a major interest in proving the workability of U.N. machinery). Those concerned about an international commercial "Enterprise" out of control could find eager colleagues among land-based producers who have far more confidence in multinational corporations' ability to plan and execute rational market entry (without spoiling markets) than they do in the Enterprise's. And so on - for consumer interest; interest in becoming sea bed miners; interest in the avoidance of any tyranny of a majority; and even interest in a framework that respects pluralism and allows diverse polities to thrive.

The third more specific strategic objective for the United States must be to develop support for a seabed "mini-treaty" - to be developed outside the U.N. Conference framework, and brought into effect only if it is clear that the Conference will not reach satisfactory agreement. Given the heavy odds against satisfactory agreement, this objective must be pursued as a matter of responsible policy development. As it happens, it would also serve to increase marginally the probability of Conference success.

The current seabed contingency plan seems to assume that if the Conference fails, U.S.-led consortia will mine the seabed "unilaterally," along with a small number of other states' mining entities. This approach would preferably include reciprocal agreements among mining states to assure orderly process, regulatory consistency, and mutual respect for security of tenure at mine sites. (Occasionally, this scheme is conceived more formally, by some, as a limited "mini-treaty" among mining states.) In the absence of a satisfactory international regime, this approach could be sensibly followed. It has two disadvantages, however. It is likely to fail to address adequately the international equity issue; that is, it is unlikely to be structured to provide much direct benefit to developing countries. And as a matter of appearance, it would tend to confirm the negative image of multinational corporations and of the United States.

The "mini-treaty" approach advocated here would be designed specifically to remove, or at least reduce, these disadvantages. It would be a treaty open to all states. Although a large number of states would not be expected to participate, it would be intended to attract both developed and developing countries. It would conform to the U.S. view of an optimal regime through which to develop seabed resources in the best interests of the United States and all mankind. It would be essentially a licensing regime, with a framework through which to coordinate the development of environmental regulation, but without any significant new bureaucracy, nor any international "Enterprise." As such, it would be unattractive to the Group of 77. But the mini-treaty would also provide for developing country participation through loan guarantees by signatory states to participating developing countries. It would provide for the transfer of necessary technology to developing countries through their participation in joint ventures. It would also provide for the taxation of seabed miners and the transfer of associated revenues to those among the poorest developing countries that would be parties to such a treaty.

It is not inconceivable that this "mini-treaty" would prove attractive to several developing countries with high potential as seabed miners - e.g., Mexico, Brazil, India, Nigeria, Iran, Saudi Arabia. Only a few of the poorest states would likely wish to participate. But this would mean that revenue-sharing per state would be at a level capable both of having significant effect and of attracting interest. In encouraging developing countries to become seabed miners and to share in seabed revenues, the "mini-treaty" would not only provide an attractive legal and political framework for developed country miners, it would also address responsibly the equity interest in meaningful developing country participation.

Such an approach would, of course, be denounced by many developing countries while a realistic hope of Conference success remains. But this predictable public reaction should not be taken as a measure of the mini-treaty's practical prospects. In the event of Conference failure, it would provide the United States, other mining countries, and many developing countries with a far more satisfactory alternative than bare unilateralism.

In sum, U.S. strategy should be reoriented in three rather different, but nonetheless mutually consistent, directions: (1) it should exhibit a clear-eyed willingness to accept Conference failure as a non-disastrous, indeed thoroughly tolerable, outcome. (2) It should deliberately seek to break down "North-South" polarization - not by concession, but by greater practical attention to, and argument on behalf of, interests that cut across North-South lines. (3) As both a hedge against Conference failure and a prod toward Conference success, it should proceed with the development of a "mini-treaty," outside the Conference framework. In addition, the United States must, of course, continue all conventional elements of negotiation in good faith - relying particularly on vigorous intersessional consultation and pre-Conference informal negotiation - across the full range of disputed issues. Whether this would be enough to yield a satisfactory comprehensive treaty, however, must remain uncertain.

VII

Considering the scope of the Conference, the existence of these problems is not unreasonable, nor should it have been unpredictable. In view of the Conference's ambition, the divergence of views and interests, and the need to negotiate among 150 nations simultaneously, the fact that it is now in its fifth year should not be surprising. With the conflict among ideologies, however, the only likely compromise on a seabed regime would seem to be a form of "mixed" regime. This could be structured as an exciting ongoing experiment in cooperative pluralism - worthy of wide affirmation as such.

But if agreement cannot be reached on a satisfactory seabed regime, the United States should hardly despair. It should wait for a more favorable world negotiating climate, while continuing to mine within the framework of a satisfactory "mini-treaty." Contrary to the general view, time may be on the U.S. side. The recent history of ideological conflict notwithstanding, it is conceivable that as the many newer states gain pragmatic experience and leave rigid ideology behind, they may come to appreciate the need for sound economic incentives, for decentralization, for greater tolerance of diversity, for a more flexible pluralism. If, on the other hand, it is assumed that the future evolution of states and attitudes is not likely to be in this direction, it is all the more reasonable for the United States to treat the principles of government and economics it thinks to be right as if they are precious.

Footnotes

1 It is, of course, possible to argue that the evidence cited should be dismissed. Some would argue that Congress is not adequately sensitive to broad national foreign policy interests (which raises the philosophical problem as to how "interests" are properly to be determined and weighed in a democracy). And one might very well suggest that the systems for managing policy development within the State Department are so inadequate that the relationship between individual cases and broad policy may never have been explicitly raised for decision, or that general policy decisions have little influence in any case. Were it not for the general consistency of the pattern, such arguments might be persuasive.

2 Press conference by Ambassador at Large Elliot L. Richardson, the Department of State, Washington, D.C., May 18, 1977.

3 Lord Ritchie Calder quoted by John Temple Swing in "Who Will Own the Oceans?," Foreign Affairs, April 1976. p. 546.

4 Economic zone expansion to 200 miles enlarges U.S. jurisdiction more than any other country's - adding area more than double the present U.S. land area. This includes addition of economic zones of U.S. territories and the trust territory of Micronesia. The added area is more than 80 percent of current land area if these territories are not included. Six of the top ten economic zone gainers are developed countries; and when consideration is given to the distribution of valuable economic resources, the pattern is clearly one that widens the gap between rich nations and poor.

5 The prime manganese nodule mine sites now identified are in an area of the Northeast Pacific Basin, south of Hawaii. This area would be divided by one developed and one developing country, the United States and Mexico. For a view of the extent to which the overall pattern would favor the richer countries, see map, "World Lake Concept: A Theoretical Division of the Seabed," Office of the Geographer, U.S. Department of State, Washington, D.C.

6 Manganese nodules form naturally over millions of years, generally in depths greater than 2,000 meters. They were first discovered and brought to the surface in 1872, but only recently have technology and economics made their exploitation commercially interesting. The nodules vary in metal content, and are estimated to average about 24 percent manganese, 14 percent iron, 1 percent nickel, 0.5 percent copper, 0.35 percent cobalt, in addition to small percentages of 22 other metals. (Nodules recovered from prime mine sites would have higher nickel and copper percentages - estimated now at roughly 1.4 percent nickel and 1.2 percent copper.)

7 In 1976, the U.S. imported (net) 98 percent of its manganese and cobalt demand, 71 percent of its nickel and 15 percent of its copper - totaling roughly $1.5 billion in value. Deep sea-based reserves of these minerals are estimated at thousands of times land-based reserves. For more detailed statistics and discussions, see Congressional Research Service, Ocean Manganese Nodules, prepared for U.S. Senate Committee on Interior and Insular Affairs, 94th Cong., 2nd sess., February 1976. See also testimony of Assistant Secretary of Defense David E. McGiffert, "Testimony before the International Relations Committee of the U.S. House of Representatives," July 25, 1977.

8 The ICNT provides a framework within which states may responsibly develop environmental regulations; it does not, in and of itself, promise to affect the quality of the environment significantly. The ICNT also establishes a system of compulsory settlement of disputes. While this is a valuable precedent in the abstract, it has a number of specific weaknesses - particularly in the selection of judges and the scope of judicial review.

9 Members of the Group of 77 can and do informally agree to moderate positions. But they cannot then "deliver" the Group as a whole. Rather, they can at best - and this is not insignificant - prevent the Group of 77 from formally rejecting a possible compromise.

10 The Evensen "Proposed Compromise Formulations" were the product of weeks of "informal" negotiation among all Conference participants within the formally established Committee I Chairman's Working and Negotiating Groups, see UNCLOS II, Document 77-76231, 3rd rev., June 11, 1977 and Document 77-76619, June 29, 1977. Both the United States and the Group of 77 seemed willing to accept the "Evensen text" as a "basis for further negotiation." (The Group of 77 was unable to agree to oppose it.)

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  • Richard G. Darman, currently Lecturer in Public Policy and Management at Harvard University, was Vice Chairman of the U.S. Delegation to the 1977 session of the Third United Nations Conference on the Law of the Sea, and formerly Assistant Secretary of Commerce for Policy, 1976-1977. The views of the author should not in any respect be construed to represent the views of the U.S. government.
  • More By Richard G. Darman