Staking claim to the ocean's bed
Washington — The law of centuries was shaken by the badly drawn map Jerman Fischer found in his library. Is was 1947. Mr. Fischer, a Chilean lawyer, was trying to prove his nation could legally claim a territorial sea wider than the three miles standard since Thomas Jefferson's time. Perhaps the acquisition would add to the greater glory of Chile, but in any case it would keep out foreign ships that were fishing rings around Chile's whaling vessels.
Two years earlier President Truman had declared that the United States had jurisdiction over the natural resources of its continental shelf. But Fischer was looking for a legal precedent that stretched further.
Finally, in the dusty stacks of his own collection, he found it -- a rough sketch of the security zone President Franklin D. Roosevelt had personally drawn around the South American Continent in 1939, when the clash of World War II first sounded from Europe. The distance seemed about 200 miles, so on June 23 Chile became the first nation in the world to claim outright ownership of a strip of sea 200 miles wide.
Peru followed suit. A few years later, so did Ecuador. Freedom of the high seas, a concept popularized by the 17th -century Dutchman Hugo Grotius, wa suddenly running into fences.
Too bad Fischer didn't know his map was inaccurate. Roosevelt's zone off of Chile was actually 300 miles wide.
Then in 1967, Arvid Pardo, another key figure in the law-of-the-sea story, changed his mind. Dr. Pardo, who was then ambassador to the United Nations from Malta, didn't think the UN should undertake a proposed study on seabed minerals. At a high-level New York party, James Roosevelt, the US economic representative to the UN, steered Dr. Pardo into a corner and dangled some coy advice.
"He told me I was making a mistake," Pardo says, "but he didn't tell me shy." So Pardo sent aides scampering off to do seabed research. They brought back word of nodules high in manganese, nickel, and copper -- lumps of rich rock scattered like gravel over the ocean floor. "I decided that what we needed wasn't a study, but a whole new international regime," he says.
The UN had already held two inconclusive conferences on the fate of the ocean , in 1958 and 1960. Pardo, fired by a vision of vast wealth shared by all mankind, rose in the General Assembly and called for a third conclave.
Pardo's push started a movement, and the third United Nations Conference on the Law of the Sea (UNCLOS) was duly convened in Caracas, in 1974.
On that bright morning who would have guessed that Pardo would eventually disown the proceedings, like a father miffed at a child gone wrong?
A finished pact setting laws for the sea has become the Great White Whale of international treaties -- a goal hunted by people from many nations, always just over the horizon, in the end farthest away when it has seemed just within their grasp.
The negotiations have involved some 150 nations over a span of seven years. There have been nine sessions, with almost each one hailed as the last. "I remember people predicting with great certainty that by the end of 1975 the whole thing would be over," says William Brewer Jr., a Department of Commerce representative to UNCLOS.
The 10th session began March 9, in New York. Even the pessimists said they sighted a treaty. Then, in a terse one-paragraph press release, Deputy Secretary of State William Clark said the US delegation had been instructed not to sign a pact, pending review by the new administration.
Why does the world chase such a frustrating fish?
In 1494, Spain and Portugal attempted to divide all the world's oceans between them. They did not succeed. But through history nations have learned that control of the high seas means economic and military power.
By the time UNCLOS convened in 1974, there seemed a real chance that other nations would succeed where Spain and Portugal failed. Seventy-six countries had followed Chile's lead and unilaterally extended their territorial seas, marking them at 12 to 200 miles. Some sort of legal order was needed to keep the high seas from being fenced up like Western rangeland.
At the same time, visions of vacuum-cleaner mining ships and new drilling techniques were making ocean space more valuable. Some estimates put a trillion tons of valuable minerals on the seabed. And the National Petroleum Council says it believes that between 30 and 45 percent of the world's offshore oil is out beyond the continental shelves. Who would own these resources?
Pardo wanted the conference to designate the oceans as mankind's "common heritage," which he defines as "international trusteeship" instead of "common ownership."
Ever since it began, the conference has been divided by the phrase. On one side are the "Group of 77" (actually numbering more than 120), developing countries such as Brazil, Peru, Tanzania, and Algeria, which stand to gain from a common harvesting of the ocean. On the other are the Western developed nations, which want passage for their warships and freedom for their mining companies to suck minerals off the ocean floor.
True, these distinctions are crudely drawn, and often national interests take a more subtle form -- both Canada and the Soviet Union, for instance, have jumped between camps. But for the most part negotiations have been a give-and-take between have and have-not, producing a 200-page negotiating text that walks a delicately worded line.
There are 303 articles and eight annexes in the present text. The highlights include:
* Establishment of a uniform 12-mile territorial sea.
* Recognition of a 200-mile exclusive economic zone, within which coastal nations exercise "sovereign rights for the puspose of exploring and exploiting . . . natural resources."
* Rights of passage for all ships (including warships) over the high seas and through navigational straits. Overflight of airplanes also are permitted.
* Establishment of a parallel system for seabed mining. An International Seabed Authority would regulate private consortia and run its own mining arm for countries without the resources to go it alone.
* Complicated procedures for settling disputes.
* Miscellaneous articles that would control pollution from ships at sea, protect marine mammals, and severely restrict marine scientific research.
Over the years, UNCLOS has survived some strange crises. The late Shirley Amerasinghe of Sri Lanka was elected conference president in 1974. When he was dropped from his own country's delegation in 1978, a conference deadlock developed over whether or not he could continue as president. The popular Mr. Amerasinghe carried the day. He served, stateless, until he died last year and was replaced by Tommy Koh of Singapore.
On another occasion, in 1977, Paul Engo, charge d'affaires for Cameroon and head of the UNCLOS committee on seabed mining, altered the text of seabed mining provisions endangering the role of private enterprise in the proposed ocean regime. Elliot Richardson, US ambassador to UNCLOS, branded the new provisions "unacceptable." For a while it looked as though the US would pull out of the conference.
Eventually, the Engo amendments were changed. But the rough-and-tumble of negotiation (135 changes in the mining provisions alone over the last three years) doesn't please the man who could claim to have started the whole thing.
"The conference has legitimized enormously increased inequalities between states," says Arvid Pardo, now a senior research fellow at the University of Southern California's Institute for Marine and Coastal Studies. In fact, 15 nations would get 42 percent of the ocean divvied up for coastal state control, with the biggest winners being the United States and Australia.
Dr. Pardo's view of the ocean's future was frankly internationalist. In the eyes of some experts, the world saluted Pardo's intentions and then marched in the opposite direction. "It does not appear as if most states of the world want to go where Pardo pointed," writes Robert Freidheim, a professor of international relations at USC.
The Group of 77 has seen UNCLOS as a chance to narrow the gap of wealth between North and South through a new international economic order. Their tool would be the mining division of the proposed International Seabed Authority, called the Enterprise.
According to a source close to the Group of 77, the Enterprise got its name from the spaceship of the popular TV series "Star Trek." The show is broadcast widely throughout Latin America and features a cast of international characters working toward common goals.
US critics, however, have long held that the Enterprise is a third-world rip-off instead of a model of international cooperation. Taken as a whole, they say, the treaty is a mass of sticky clauses and hidden traps for the developed countries.
"I find truly remarkable that the previous administration allowed the United States to be led submissively down so perilous a path," says US Rep. John B. Breaux (D) of Louisiana, congressional adviser on UNCLOS. Mr. Breaux further believes that the treaty, in its present form, would have little hope of being approved by the US Senate.
The critics have caught the new administration's ear. At a March 2 senior interagency group meeting chaired by Deputy Secretary of State Clark, it was decided to delay final signing pending review.
Then Mr. Clark pulled a surprise, according to several highly placed sources. Miffed at leaks to the press from previous meetings, he went ahead and published the decision -- to the horror of many people long involved with law-of-the-sea. The decision was one thing, some said, but to announced it was a poor negotiating move, akin to a poker player reading off his cards because he doesn't like what he's been dealt.
"The action seemed impetuous and insensitive to the international climate in which it was taken," says Dr. Edward Wenk, former marine adviser to President Johnson. "But I believe it's completely appropriate for a new administration to review the decisions of previous administrations."
Then, on March 7, the top officials of the US delegation were given their gangplank marching orders. The new chief negotiator is James Malone, an assistant secretary of state. Added to the delegation as an "expert" was Leigh Ratiner, a controversial figure who served a stint as lobbyist for Kennecott Copper Corporation, the minerals company.
Discussions with sources close to the negotiations produced this list of "treaty-stoppers" that contributed to the administration's decision:
* Assured access for mining companies. Four consortia, each headed by an American corporation, have poured millions into developing seabed mining technology. Under the current negotiating text, critics say, there is no assurance the International Seabed Authority would give these consortia permission to mine the strategically important minerals.
* Interim production limits. To protect land-based mineral suppliers, the International Seabed Authority would oversee complicated production limits tied to world nickel demand. The limits could be in effect for upwards of 25 years.
US companies and some foreign policy experts have long worried that land-based suppliers would band together into OPEC-like cartels. Unlimited seabed production, they say, would protect the US against this threat.Indeed, Richard Darman, US vice-chairman at UNCLOS in 1977, has concluded that, under the present treaty, "the future potential for cartelization . . . could be very high."
But other experts discount this problem, pointing out that such attempts as that of the International Bauxite Association have failed to increase prices.
* The bureaucracy of the International Seabed Authority. The International Seabed Authority would be organized much like the UN, with a general assembly and a more exclusive council. Critics contend that the Group 77 could dominate the authority through the assembly.A careful reading of the text's parliamentary provisions seems to indicate this is not true; there is at least a chance, however, that the US could be rotated off the ruling council altogether.
* Who can participate, or "the PLO question." The negotiating text would allow "peoples who have not attained full independence or other self-governing status" to share in the ocean's bounty, raising the specter of international "liberation" movements joining the authority.
* Precedence. Critics feel the "common heritage" concept sets a bad example for issues still in the air, such as the Moon Treaty and the question of who owns Antarctica.
* The review conference. This obscure article may be the most dangerous of all: After 15 years of mining, a conference to scrutinize the seabed mining machinery would be convened. After five years, if the conference couldn't reach a consensus, new mining regulations would be established by a two-thirds vote. Theoretically, the Group of 77 could then wipe the slate clean and the US might find itself signatory to a treaty that ignored economic interests.
There are as many other objections as there are interest groups. Distant water fisheries would suffer, for instance, and international scientific research would be tightly controlled. ("As far as marine science goes, the treaty is pretty much a catastrophe," says Dr. David Ross of the Woods Hole Oceanographic Institution.)
The Group of 77, however, is not pleased with the US change of heart. "It has certainly cast a pall over this particular session," says Olvero De Soto of Peru, a Group 77 spokesman on mining issues. "Everything at the moment seems to be up in the air."
Many of those formally associated with the US delegation feel the new administration can't see the ocean for the nodules. One view is that the generous provisions for the passage of warships are more important than the mining sections of the text. "The US got into this because of national-security interests," says one former member of the delegation. And Richard Darman has written that Department of Defense concerns have carried "special weight" in shaping the US negotiating position.
Some 121 straits around the world fall within a 12-mile territorial sea, according to an unofficial State Department chart. Proponents say UNCLOS is the only way to keep the passages open for US ships; critics claim that only a few straits are truly strategic -- and that those could be dealt with bilaterally.
The most visible backer of the treaty has been Elliot Richardson, a Cabinet member under Presidents Nixon and Ford and chief delegate to UNCLOS under President Carter. In an interview with the Monitor, he said that some objections, such as concern over the transfer of technology and the belief in the overriding powers of the assembly, are knee-jerk reactions that are rebutted by a thorough study of the negotiating text.
He said the 15-year review conference would operate "essentially on the same basis that the existing conference operates. It can adopt affirmative action by a two-thirds vote -- but it has never attempted to do that, recognizing the importance of consensus and the importance of the agreement of the major industrial countries."
Some observers also believe that US corporations won't mine at all without a signed Law of the Sea Treaty -- even though Congress passed legislation setting interim guidelines for mining in 1978. "They cannot have a stable investment climate without a treaty," says Charles Maechling Jr., an international lawyer in Washington. "The important thing to note is that the 'common heritage' concept is now pretty well embedded in international law."
Should the US ratify the treaty, or shouldn't it? In moments of candor, officials admit that there is "reality" on both sides of the issue. Arvid Pardo maintains that UNCLOS has become an unworkable whale of a treaty: "Whenever there was a difficult political problem to solve," he says, "the conference did not try to solve it but sought a formula sufficiently vague to please everyone."
So the 10th session of UNCLOS swims on, growing more complex by the minute and becoming a minor industry unto itself. "You know," sighs Woods Hole's Dr. Ross, "50 percent of our fellowship applicants want to work on a [law of the sea ] topic." He pauses. "There wouldn't be so many if we made them read the treaty first."
Tomorrow: Keeping the ocean clean