Sea law -- minus America?

Nations that have worked for almost a decade on a Law of the Sea treaty say they will complete one this spring with or without the United States. They are believed ready to ensure participation by Europe and Japan through negotiating remaining specifications by these countries. They hope to come up with a document to which the United States could subscribe at some later date even if the present administration rejects it. But they would rather see Washington come aboard now, presenting its new demands and being willing to negotiate compromises acceptable all around. So important are the military, jurisdictional , and other agreed aspects of the treaty that the Pentagon and State Department have joined with other US agencies to work toward that end.

But as the scheduled final session of the United Nations Law of the Sea Conference (UNCLOS) began in New York this week, the signals from the Reagan administration were mixed. They need to be clarified soon -- away from new signs of ideological rigidity and back toward the more conciliatory tone of even a few days ago. For the emerging treaty could be a better one, one more likely to be adhered to, if the best of the Reagan administration proposals are taken account of. It was wise of the administration, having dropped out of negotiations last year, to decide to return this time.

So far, however, after extensive review, the US has not established priorities among its demands and placed them in the amendment form required before the conference can consider them. On the brink of the session the administration did produce 43 pages of more generalized demands and possible approaches for reaching agreement on them. Treaty supporters found the tone reasonably conciliatory and had hopes for progress.

Then, however, it appeared that hard-line strains of laissez-faire on the main remaining point of contention -- seabed mining -- were predominating. And this to a point where long-time US negotiators of known expertise and flexibility seemed on the way out.

At the same time, the US chose this very moment to draw attention to the so-called minitreaty among industrial nations with potential for extracting minerals from the seabed. Such an agreement would be in keeping with America's legislation for seabed mining in the absence of a comprehensive Law of the Sea treaty. It could indeed serve a transition purpose since implementation of a comprehensive treaty would take years.

Yet the timing now looks like a slap at UNCLOS. It permits delegates to criticize Washington and urge parties such as Britain, France, and West Germany not to sign the minitreaty. One argument offered them is that they could be tied up in lawsuits once a global treaty is passed. And financial backing could be hard to get if new international law were to lay down rules on ownership of extracted minerals.

What properly concerns Washington is fairness to US companies that are the most likely to be ready to mine the seabed now designated as the common heritage of mankind. There is the possibility of setting precedents for future treaties on Earth's uses of space.

One question involves guaranteed US representation on the 36-member council that would fix policy on seabed mining. The categories of membership are such that the US qualifies under several and would certainly be a member. Yet neither it nor any other nation is mentioned by name, though Soviet influence is implied in the categories ensuring the inclusion of three East bloc countries. Perhaps certainty could be made more sure by specifying that the largest contributor to guaranteed loans under the treaty would be a member. Since contributions are pegged to UN contributions, the US would automatically be the one.

US concerns about the outcome of future review conferences could be met by specifying that changes would have to be by consensus rather than the present two-thirds vote provision. There could also be compromises on proposals for technology transfers to developing countries and on protections for land-based producers of the minerals to be mined in the sea.

It should be pointed out that mining companies already accept requirements for operating in third-world countries that are no more onerous than the ones in the pending treaty. These include payments such as those to the proposed International Seabed Authority, transfers of technology, and production limitations on what is mined. The present treaty limits on production are so high that the prospect of exceeding them seems remote. Perhaps they can be raised. But to rule out all limits for ideological reasons seems self-defeating in today's world of multinational trade agreements.

To be sure, there is a difference between accepting such conditions voluntarily for the sake of doing business with the third world -- and being held to them by law under an international treaty. This is why it is well worth-while to get as many i's dotted and t's crossed in advance as possible. This is why the Reagan review can have a constructive effect on the Law of the Sea treaty - if it does not sink it.

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