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Law of the Sea: fanfare and an uncertain future

By John Temple SwingJohn Temple Swing is vice-president and secretary of the Council on Foreign Relations and a member of the US delegation to the Third United Nations Conference on the Law of the Sea. / March 9, 1981

New York

The tenth substantive session of the Third United Nations Conference on the Law of the Sea opens today with unexpected fanfare and an uncertain future. Last week front-page stories in at least two of the nation's major newspapers announced that the Reagan administration would not go along with the previously agreed objective of completing a comprehensive draft treaty on all aspects of ocean usage at the current session. This announcement certainly came as a shock to the 2,000-odd delegates from 158 countries gathering in New York. Although the negotiation has been one of the world's longest, most complicated, and least understood, it is, as Henry Kissinger observed while secretary of state, one of the most important in the 20th century. And, after seven years, it is now very close to completion. Why, then, has the outcome been thrown into doubt?

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The problem arises from the one area of the negotiation that has always been politically sensitive: the creation of a new international organization to oversee the exploitation of deep seabed resources in the area "beyond national jurisdictions."

The conference remained deadlocked over this issue for three years, and only during the latter years of Mr. Kissinger's tenure as secretary of state was a compromise developed that, with some exceptions, is now generally acceptable to most participants: the so-called "parallel system" of exploitation. Simple in concept, if not execution, it provides one-half of the commercially available mine sites to Western countries and their companies and the other half to the corporate arm of the new International Seabed Auhtoritiy known as the Enterprise. Net revenues earned by the authority in the form of taxes, fees, and profits from its own operations, as agreed from the outset, are to be allocated to the poor counttries of the world for development purposes.

Throughout the negotiations, the developing countries have insisted that land-based producers of nickel and copper be protected from the potential threat to their economies by seabed production of the same minerals. This has led to interim limitations on deep seabed production, which, at least in principle, are anathema to "pure" free enterprisers.

Equally troubling to many company executives are provisions calling for commodity agreements for all seabed minerals and complicated provisions for the transfer of technology. Companies also worry that in spite of carefully created provisions on governance and requisite voting majorities for different classes of issues, access is not adequately guaranteed in black and white.

In part because of these doubts, mining companies sucessfully lobbied for the adoption in the summer of 1980 of domestic legislation to license US miners to begin site specific exploration by 1982 and site specific exploitation by Jan. 1 , 1988. Such legislation could in theory provide some protection for US mining companies in the so-called "interim period" before an international treaty comes into force or even in the absence of such a treaty entirely.