Law of the Sea: to make a good treaty better

Fair and orderly use of the world's vast oceans has come a step closer with the overwhelming adoption of a treaty by the United Nations Law of the Sea Conference. There will be one more opportunity this year to reach agreements that could just possibly bring aboard the handful of nations that abstained or voted against the document passed by 130 countries last week. This opportunity will come in September when a plenary session will consider the summer's work of the treaty's final drafters. There, at least in theory, the conference could accept by consensus some changes in the text to narrow the remaining few but hotly disputed differences.

Doubts about such a happy outcome persist because of the strength of opposition within the Reagan administration, which turned the US from a proponent of the treaty into its chief adversary. Yet US delegate James Malone appeared to leave the door open to US signing of the document even though it voted no. The third-world majority finally dug in its heels after bowing to many US demands. But it could reconsider some points that are not worth undercutting the treaty for--and that would serve other countries as well as the US.

One of these points is the method of revision as called for in 20 years. The treaty requires that each revision be accepted by consensus. So far, so good. This in effect gives any country a veto power. However, if consensus is not reached within five years, a three-fourths vote would be sufficient to pass a revision binding all treaty signatories.

The US could be faced with a treaty provision not ratified by its Senate and thus contrary to its Constitution. Some other countries would be in much the same boat. Here is where the developing countries might allow an acceptable redrafting that keeps the principle of consensus.

The US, for its part, could take a more reasonable, practical approach toward a document 98 percent of which, after all, it has accepted. It cast a cloud over the treaty by calling for a roll-call vote when it could have allowed adoption by consensus, while making its reservations clear. Consensus might have improved prospects for the treaty, once it is ratified, to be the basis for so-called customary international law. Most of its jurisdictional, environmental, and military aspects would probably be acceptable as such by the US as well as others.

But the rights and duties in seabed mining remained unresolved to US satisfaction. Mr. Malone acknowledged that improvements had been made, though not enough.

One section, indeed, caused Moscow and the Eastern European bloc to abstain because of the potential advantages for US and other Western countries. A Soviet state company could not qualify unless Russia joined the treaty and contributed financially to it. A Western consortium could qualify if only one of its associated countries were a signer. So a US company could qualify under another flag without the US signing or contributing.

The crucial point to iron out has to do with the clause requiring mandatory sale of mining technology by private companies to the treaty's international mining enterprise. Differences could be eased along the lines of a previously rejected compromise provision. Under the latter, a company wishing to sell technology could do so; when a company did not wish to do so, its home country would be expected to take steps within its own legal system to help the UN body obtain the technology. This would avoid the stark mandatory element, understandably resisted in the US.

These are just a sample of what the delegates have been struggling with, many of them over the full eight years since the UN conference began. They deserve much credit.

For all the last-minute snags, the result is a ''good treaty and an historic achievement,'' as was said by Republican Elliot Richardson, former US chief delegate to the conference. It serves US interests ''much better'' than the ''no'' vote indicated. He said that the US delegation lacked the flexibility to obtain a better outcome, because it was limited by pressures that gave more weight to ideological than practical considerations.

This ought to be a word to the wise, as the administration contemplates the alternatives of (1) attempting to side-step the treaty with an agreement among several industrial nations and (2) looking again at the possibilities of going the few extra inches to join in an historic achievement. The danger of conflict between a limited agreement and a worldwide one should be enough to prompt another try at the constructive compromises that have brought the Law of the Sea Treaty thus far.

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