Law of the Sea: fanfare and an uncertain future

By , John 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.

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?

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.

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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.

Treaty provisions are not exempt from criticism, after all, even though they are the product of genuine negotiation between two sharply defined views. The problem is that all 130 developing countries and a fair of number of developed countries would consider unilateral mining to be in direct violation of international law -- or at the very least of the 1970 General Assembly resolution adopted during the Nixon administration by a vote of 108 to 0 (with the Soviet bloc abstaining and the United States voting in favor) that deep seabed resources are "the common heritage of mankind," to be exploited only "in accordance with an international regime to be created."

There is also the fact that the other areas of the draft treaty contain provisions of equal if not greater importance to the US national interest, most critically the preservation of freedom of navigation and overflight on the high seas, in the new "200-mile exclusive economic zones," and in straits like Gibraltar or Hormuz. The draft treaty also assures that the United States may claim its hard mineral resources, especially oil, in the areas of the continental margin that extend beyond 200 miles, subject only to minimal revenue-sharing provisions. Whales within and without the 200-mile economic zone receive special attention in a provision that should enhance their long-term conservation as a unique species. The draft treaty also makes important contributions to the evolution of international law for the protection of the marine environment, particularly in the area of vessel-source pollution.

In spite of these points, it is the administration's sympathy with the mining companies' view that led it to announce last week that its delegation had been instructed to seek a delay in the adoption of a formal draft treaty until a major policy review can be completed.

Whatever the result, the US delegation is likely to have its work cut out for it, since most other countries in the conference, developed and developing alike , came to New York to negotiate what they consider to be the remaining outstanding issues, not to reopen compromise texts resulting from the hardfought battles of the past seven years. These issues are complicated enough, involving as they do the establishment of a preparatory commission that will draft the provisional rules and regulatons for the authority; participation (which entities in addition to recognize states can sign the treaty); and, finally, preparatory investment protection for US mining companies during the interim period, an issue put on the agenda by the United States last summer in Geneva.

The last three administrations, two Republican and one Democratic, have all supported the goal of a widely accepted Law of the Sea treaty as the best way to protect the interests of all nations, including the United States. The new administation shares the same objective, but whether progress can be made toward it at this session remains to be seen. What really is at stake is the opportunity to establish by treaty the rule of law for an area that covers nearly three-quarters of the surface of the globe.

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