The
ocean covers 70 percent of the world's surface;
has an enormous impact on global climate, weather,
and air quality; covers extensive mineral and
petroleum resources; and provides 20 percent
of the protein eaten by humans. During the past
few decades, as man's capability to exploit
(and deplete) the ocean's resources and damage
its ecosystems grew, and as many countries sought
to increase their own benefits from the ocean
at the expense of others, the need to develop
a more comprehensive law of the sea became increasingly
evident to many governments.
The
First and Second UN Conferences on the Law of
the Sea sought to develop widely accepted treaties
that would govern uses of the oceans and set
seaward limits on the permissible breadth of
the territorial sea (the part of the ocean nearest
the shore, over which the coastal state enjoys
sovereignty) and the extent of jurisdiction
of coastal states over the resources off their
coasts in regions beyond the territorial sea.
Many states had declared territorial seas broader
than the traditional 3 miles (1) and were asserting various rights in much
broader zones off their coasts. The United States
and other maritime countries were extremely
concerned about this creeping encroachment of
coastal state jurisdiction over areas of the
high seas:
-
The
first conference, held in 1958, produced
four treaties: on the Territorial Sea
and the Contiguous Zone, on the Continental
Shelf, on the High Seas, and on Fishing
and the Conservation of Living Resources
on the High Seas. That conference, however,
could not reach agreement on the maximum
breadth of the territorial sea or the
seaward extent of national jurisdiction
over the continental shelf.
-
The
second conference, held in 1960, aimed
to standardize the breadth of the territorial
sea, but also failed to reach agreement,
mainly because the United States and other
maritime countries refused to countenance
a territorial sea broader than 6 miles.
The
Genesis of UNCLOS III
In the midst of the Cold War it was unusual
for the United States and Soviet Union to cooperate
in any international arena, but as the world's
leading maritime powers they shared a deep concern
over the continuing creep of coastal-state jurisdiction,
with concomitant restrictions on freedom of
the seas. With their joint support, the Third
UN Conference on the Law of the Sea (UNCLOS
III) convened in 1973. More than 150 countries
participated in nine years of negotiations with
the goal of creating a comprehensive framework
for the regulation of all activities on, under,
and over the ocean:
-
In
1982 the UN Convention on the Law of the
Sea was adopted, notwithstanding the strong
objections of the industrialized states
to many of the provisions of Part XI,
on seabed mining. Many developing countries
ratified the Convention during the next
few years, but no industrialized state
did so.
-
In
1990 the UN Secretary General sponsored
new negotiations in an effort to resolve
objections of the industrialized states.
Those negotiations were still in progress
on 16 November 1993, when the Convention
garnered its 60th ratification. The knowledge
that, consequently, the Convention would
enter into force a year later galvanized
the negotiators into resolving their remaining
differences.
-
In
July 1994 the UN General Assembly overwhelmingly
approved a new Agreement that effectively
amended the seabed mining provisions in
ways that largely accommodated the objections
of the industrialized states.
-
On
16 November 1994 the LOS Convention entered
into force. As of early March 1996, 85
countries had become parties to the Convention--in
other words, had consented to be bound
by its provisions.
-
The
seabed mining Agreement is being applied
provisionally until it is ratified by
the specified mix of governments, which
is likely to occur within the coming year.
A
Package Deal. The LOS Convention was
a package deal among many states with widely
different attitudes and interests, not only
with regard to the ocean and maritime issues,
but also with regard to larger matters such
as the manner in which countries should cooperate
with one another for the common good, the extent
to which international relations should be governed
by law, and how the global economy should or
should not be organized.
Among
the major LOS interest blocs were:
-
The
coastal states: those with substantial
ocean coastlines. Their chief objectives
were to maximize their jurisdiction over
coastal waters and their control over
the exploitation of resources off their
coasts.
-
Supporters
of the global commons: states
that sought to protect the ocean environment
and living resources, minimize international
conflict over ocean issues, and ensure
that exploitation of the ocean's wealth
is carried out in an equitable way.
-
The
landlocked and geographically disadvantaged
states: those with no coastlines or
very short ones relative to their size
and population. With little direct interest
in maritime or coastal issues, this group
tended to focus on seabed mining, because
its members hoped to benefit from a seabed
mining system in which they could participate
and from which they could share in any
profits.
-
NIEO
advocates: countries chiefly interested
in LOS issues as they related to efforts
to bring about a "New International Economic
Order" thought at the time to favor the
interests of the developing countries.
Evolving
US Attitudes Toward Coastal State Rights
With
regard to LOS issues, the United States traditionally
identified itself primarily as a maritime power
whose interests were best served by restricting
to a minimum the amount of ocean area under
national jurisdiction:
-
Similarly,
not until 1976, by which time many littoral
states had already extended their jurisdictions
seaward to 200 miles, did the US Congress
enact the Magnuson Fishery Conservation
and Management Act, whereby the United
States claimed a 200-mile fisheries conservation
and management zone off its coast.
-
And
not until 1983, after the discovery of
potentially valuable metal deposits along
a portion of the midoceanic ridge off
the northwest US coast and on the underwater
flanks of islands and seamounts near Hawaii,
did the United States declare a 200-mile
exclusive economic zone (EEZ). The US
EEZ is the largest and arguably the richest
in the world and contains by far the greatest
biological and geological diversity.
A
good number of countries were predisposed to
compromise, however, because they belonged to
more than one bloc. The Soviet Union, United
States, and United Kingdom, for example, were
maritime powers with major coastal equities.
Many states with disparate individual interests
were solicitous of the ocean as a global commons.
Eventually, most countries were able to support
most of the Convention's provisions as being
in their own interests, as constituting reasonably
equitable compromises, or as required to ensure
that the Convention would be universally accepted.
Only with regard to seabed mining did consensus
elude the negotiators.
The
Seabed Mining Controversy
Sideshow Becomes the Main Event.
Notwithstanding the low current importance of
seabed mining--an industry unlikely to move
to the production phase for at least a decade
or two--the controversy over seabed mining has
occupied the center of the LOS stage for more
than 15 years. Indeed, this deadlock threatened
to unravel the work of decades:
-
In
the early 1970s, at the time drafting
of the LOS Convention began, seabed mining
seemed to offer the prospect of immense
profits to those who controlled it. The
developing countries argued that, because
the resources of the area beyond the zone
of coastal state jurisdiction--known as
"the Area"--were "the common heritage
of mankind," the deep seabed should be
exploited only under the auspices of the
United Nations, and seabed miners should
share the benefits from their endeavors
with mankind as a whole. (2)
-
Most
of the exploration and technology development
related to seabed mining, however, was
being undertaken by private firms and
consortiums from the industrialized states.
These firms risked their own assets and
worked for their own stockholders, and
neither they nor their governments felt
an obligation to share either their profits
or their technology with a UN "Enterprise"
that proposed to compete with them. Indeed,
they saw no reason why they should have
to ask permission from--much less pay
substantial fees to--some international
organization before engaging in mining
or any other activities on the high seas.
As
the negotiations wore on, the basis of this
disagreement changed. It gradually became clear
that seabed mining would not be economically
viable for decades. Far from facilitating agreement,
however, that development led both sides to
harden their positions. With little immediately
at stake, neither side had any strong reason
to compromise its goals. Moreover, because all
other issues had been settled relatively early
in the LOS Conference, negotiators had nothing
left to trade.
Because
the developing countries (supported on this
issue by the Soviet Union and its allies) greatly
outnumbered the industrialized democracies,
the seabed mining provisions of the Convention
ended up reflecting their views, interests,
and objectives much more than those of the industrialized
states. As a result, none of the industrialized
states would agree to be bound by the treaty.
Nodule
Mining—Dead in the Water
An
Exciting Discovery. The discovery that potato-size
polymetallic nodules litter certain portions
of the deep seabed stimulated great interest
in seabed mining during the 1960s and early
1970s because of worries over the accelerating
depletion of land-based resources and because
the nodules constituted a potential alternative
source of certain strategic minerals. The nodules
are composed largely of iron and manganese oxides
but often contain small amounts of nickel, copper,
cobalt, and other metals. At the time, cobalt
and, to a lesser extent, manganese were deemed
to be strategic minerals.
Since
then, however, the prospects for land-based
mining have improved significantly. Modern exploration
techniques have uncovered additional resources,
and new mining methods have decreased costs.
Furthermore, changing political situations have
opened up new sources of minerals in Eurasia
and China. During the 1980s, it became increasingly
evident that seabed mining--though feasible
with current technology--is not economically
competitive with land-based mining.
Not
All Nodules Are Valuable.The main
components of polymetallic nodules--iron and
manganese oxides--are currently of no interest
to prospective seabed miners, because they are
available in abundance from numerous cheaper
land sources. To be even minimally attractive
to seabed miners, nodules must have a combined
nickel, copper, and cobalt content of at least
3 percent. Moreover, they must be especially
concentrated on the seabed, as they are in the
region between the Clarion and Clipperton fracture
zones southeast of Hawaii, where most of the
registered minesites are located.
Of the aforementioned metals, cobalt offers
the most potential for profit. Cobalt is a component
of special alloys employed in many military,
aerospace, and industrial applications, and
there are no satisfactory substitutes in critical
applications. The demand for cobalt is currently
being met by a combination of limited surface
mining from several sources--mainly in Zambia,
Zaire, and Russia--and recycling of used turbine
blades and other cobalt-containing scrap metals.
Overall,
supplies of cobalt will remain adequate for
US national defense needs under all foreseeable
circumstances, but, because the sources of cobalt
are limited and not easily expanded, a disruption
in the supply of cobalt from one of the land-based
producers could drive up global prices. Even
if cobalt prices were to soar, however, it is
questionable whether operations to recover cobalt
from the seabed would be economically feasible.
Costs
Would Be Prohibitive. According to
mining industry analysts, it would probably
cost several billion dollars to mount a seabed
cobalt-mining operation--far more than the cobalt
would be worth, given the small size of the
cobalt market. A single nodule operation could
add to the market up to 7,000 metric tons of
cobalt a year, more than a third of the world's
current annual supply, likely causing a price
collapse. Prospects for making a profit from
the recovery of other minerals found in seabed
nodules are even worse. Industry experts estimate
that seabed-nodule mining is not likely to become
competitive with land-based mining for at least
the next decade.
Nodules
Not the Only Game in Town. Polymetallic nodules
are commonly found far out at sea at depths
of 20,000 feet or more. Other mineral deposits
found at much shallower depths may offer attractive
alternatives to nodule mining, especially if
the deposits are within 200 miles of a coastal
state.
Vent
Deposits. The discovery of metalliferrous
sulfide deposits along the crest of the midoceanic
ridge brought a new variable to seabed mining
prospects. These deposits have formed at depths
of 12,000 feet or so near volcanic vents that
have heated the seawater to hundreds of degrees.
At that pressure the seawater remains liquid
but turns strongly acidic, to the point that
it leaches minerals out of the rock. As the
warm, mineral-rich water rises it cools, and
the minerals precipitate out and are deposited
on the seafloor.
At
some vent sites, the deposits contain metal
compounds of singular purity. At other sites
they contain a much wider variety of minerals--including
lead, zinc, silver, gold, and germanium--than
the polymetallic nodules lying on the deep seabed.
Such variety would offer investors and miners
some protection from plunging prices of a single
metal.
The
vent deposits are concentrated in small areas,
in contrast to the huge minesites--up to 150,000
square kilometers, bigger than the area of the
states of Delaware, Maryland, and Virginia combined--over
which polymetallic nodules would be collected.
Thus, a different formula for determining the
size of vent minesites needs to be developed,
along with different procedures for licensing
and managing their exploitation.
Crust
Deposits. Oxides of nickel and cobalt
have been discovered on the flanks of islands
and seamounts in the Pacific at depths of about
3,000 feet. In general, such crust deposits
would most likely be found within the EEZs (on
the continental shelves) of coastal states,
which consequently would have the sole right
to exploit them. Most of the crust deposits
identified so far have been found within the
US EEZ around Hawaii.
Possibly
Cheaper and Easier To Exploit. The
technology for mining vent and crust deposits
has yet to be developed, but preliminary indications
are that both forms of mining could be undertaken
with significantly less up-front investment
than nodule mining would require. In both cases,
the technology for processing the ores would
be similar to that already used on land.
The Seabed Revisited. By 1990, the breakup
of the Soviet Union and the collapse of communist
regimes in Eastern Europe had largely discredited
the centralized, collectivist economic approach
on which the Convention's seabed mining provisions
had been modeled. Recognizing, in addition,
that a global convention not supported by the
industrialized countries would lack force, representatives
of the developing countries accepted the UN
Secretary General's invitation to return to
the negotiating table and work out more broadly
acceptable seabed mining provisions.
The
new implementing Agreement reached in 1994 eliminated,
or greatly weakened, the provisions to which
the industrialized states most objected but
retained the framework in which seabed mining
would be conducted under the authority of a
new organization, the International Sea-Bed
Authority (ISBA). The compromise was made possible
by the conclusion of both sides that what each
viewed as the optimal seabed mining regime was
not achievable:
-
The
general view among the developing countries
is that paving the way for universal acceptance
of the Convention was worth the concessions
they made on seabed mining in the Agreement.(3)
What
the Convention Covers
The
Convention provides a legal framework governing
man's peaceful interaction with the oceans.
To attract the widest possible support and promote
the Convention's durability, the drafters limited
its encroachment upon national sovereignty (4)
and dealt with localized and specialized issues
by laying down broad principles and obligating
states parties to work out solutions to individual
problems according to these principles.
Impeding
Jurisdictional Creep
Balancing Competing Interests.
The drafters attempted to establish an equitable
balance between the interests of individual
coastal states in controlling the activities
and exploiting the resources off their coasts
and the interests of all states--but especially
maritime states--in maintaining freedom of navigation
and other freedoms of the seas and sharing in
the bounty of the high seas and the seabed below.
The balance is dynamic, because in coming years
some coastal states are likely to renew their
efforts to increase their control over activities
and resources in coastal zones and to extend
their sway seaward into the area now beyond
the zones of national jurisdiction.
This Far and No Farther. The Convention
has formally established a system in which the
exclusive rights and control that a coastal
state exercises over maritime areas off its
coast diminish in stages as the distance from
shore increases. In so doing, the Convention
has validated claims of jurisdiction--12-mile
territorial seas, 200-mile exclusive economic
zones (EEZs)--that had become commonplace but
that had not yet become fully established as
customary international practice. By validating
and clarifying customary international practice
with regard to rights of navigation through
coastal zones, the Convention has strengthened
its legal status and made it harder to ignore
or violate.
At
the same time, by explicating the permissible
extent of the various maritime zones of jurisdiction,
the Convention has constrained the proliferation
of claims of jurisdiction over still greater
portions of the open sea. About 20 states still
claim territorial seas or other coastal zones
broader than those authorized by the LOS Convention,
but many other states have rolled back their
maritime claims to conform to the Convention's
standards. Moreover, the Convention contains
provisions requiring states parties to submit
to adjudication, conciliation, or binding arbitration
if other states parties object to their jurisdictional
claims. The availability of this alternative
could reduce the need for physical challenges
of excessive claims of jurisdiction where states
parties are involved.
Delimiting
the Continental Shelf. Geologically,
the continental shelf is the natural prolongation
of the landmass beneath the sea. More accurately
called the continental margin, it includes the
continental shelf, slope, and rise. Like the
land, it may contain valuable petroleum or mineral
deposits.
Figure
1
Navigational Regimes
Figure
2
Typical Offshore Regions and Zones
Coastal
State Jurisdiction |
|
Freedom
of the Seas |
|
Internal
Waters. A state exercises sovereignty
over all baseline. The baseline is normally
the low-water mark along the shore, but
the Convention permits closing lines and
other straight line segments under specified
geographic circumstances. |
|
Foreign
ships have no navigational rights in a country's
internal waters-all lakes, rivers, and bays
within the internal waters. |
|
Territorial
Sea. The coastal state exercises
sovereignty over the territorial sea.
The Convention fixes the maximum breadth
of the territorial sea a state may claim
at 12 miles seaward from the baseline.
The
United States has declared a 12-mile territorial
sea. |
|
Innocent Passage. The Convention
confirms the right, established in customary
international practice of all ships to innocent
passage through the territorial sea. It
specifies activities of ships not considered
innocent. The regime of innocent passage
does not include the right of overflight
or submerged passage. |
|
|
|
Transit
Passage. The Convention also confirms
the right, established in customary international
practice, of all ships and aircraft to unimpeded
passage in the normal mode through, over,
and under the territorial sea when transiting
an international strait without a high-seas
route through it. An international strait
connects one area of the high seas (or an
EEZ) with another. The extension by coastal
states of their territorial sea out to 12
miles eliminated high-seas routes through
many international straits, thereby |
|
Contiguous
Zone. The Convention recognizes
the right of a state to enforce its customs,
fiscal, immigration, and sanitary laws
in a contiguous zone adjacent to the seaward
limit of the territorial sea, which can
extend as far as 24 miles from the baseline.
The
United States claimed a 12-mile contiguous
zone before extending its territorial
sea out to 12 miles. |
|
The
freedoms of navigation and overflight, as
well as other internationally lawful uses
of the seas related to these freedoms, including
the right to lay submarine cables and pipelines,
are the same in the contiguous zone as on
the high seas. |
|
Archipelagic
Waters. The Convention grants archipelagic
states a new right to establish perimeter
the sovereignty of the archipelagic state.
So far, 17 states have claimed archipelagic
status, and 12 of them have established
archipelagic baselines. Four other states
may qualify for this status if they want
it. The largest archipelagic states are
Indonesia and the Philippines. Some of the
busiest shipping lanes in the world pass
among the islands of such states. |
|
Archipelagic
Sea Lanes Passage. To preserve the freedoms
of navigation and overflight in archipelagos,
the Convention establishes the regime of
archipelagic sea lanes passage. In archipelagic
sea lanes, ships and aircraft have the right
to transit in their normal mode. The new
regime applies in routes normally used for
international navigation. Archipelagic states
can designate specific routes as archipelagic
sea lanes, but the normal routes must be
included. Foreign ships can travel through
archipelagic waters outside archipelagic
sea lanes under the regime of innocent passage. |
|
Exclusive
Economic Zone (EEZ). The Convention
recognizes a coastal state's right to
exploit the resources f the water column
and seabed in the zone extending seaward
from the outer limit of the territorial
sea out to 200 miles from the baseline.
With
the right of exploitation comes the responsibility
of stewardship over living resources in
the EEZ.
The
United States has declared a 200-mile
EEZ. |
|
The
freedoms of navigation and overflight,
as well as other
internationally lawful uses of the seas
related to these freedoms, including the
right to lay submarine cables and pipelines,
are the same in EEZs as on the high seas.
Foreign
states may also undertake military activities
in EEZs, with due regard for the rights
and duties of the coastal state. Foreign
vessels fishing for straddling stocks
and highly migratory species in the portions
of the high seas adjacent to EEZs must
have due regard for the impact their actions
might have on coastal state interests. |
|
Continental
Shelf. The Convention fixes the
breadth of the continental shelf at 200
miles from shore whether or not the coastal
state has declared an EEZ. Where the continental
margin (the geological shelf, slope, and
rise) extends farther from shore, it is
to be delimited according to guidelines
in the Convention, and this delimitation
is to be reviewed by the Continental Shelf
Commission, whose ruling will determine
whether the states parties accept it as
valid.
Coastal
states have the right to exploit the mineral
resources of their continental shelf but
must pay a small commission through the
ISBA to other states from the proceeds
of any exploitation of resources beyond
200 miles from shore.
The
US continental shelf extends farther than
200 miles from shore in some places and,
were the United States to become a party
to the Convention, would be delineated
in accordance with the Convention's guidelines. |
|
Coastal
state jurisdiction over the continental
shelf does not affect the legal status of
the waters above. Thus, beyond the territorial
sea, the freedoms of navigation and overflight,
as well as other internationally lawful
uses of the seas related to these freedoms,
including the right to lay submarine cables
and pipe lines, are the same above a continental
shelf as on the high seas. |
|
The
Area. The nonliving resources found
on or beneath the
seabed in the area beyond the limits of
national jurisdiction, known as the Area,
are held to be the common heritage of mankind.
The International Sea-Bed Authority (ISBA)
is to regulate and supervise the exploitation
of these resources. |
|
The
High Seas. All ships and aircraft
enjoy freedom of navigation on, under, and
over the high seas, as long as they operate
with due regard for the rights of other
states and the operation of other ships
and aircraft. For military ships and aircraft,
high-seas freedoms also include such activities
as task force maneuvering, flight operations,
military exercises, surveillance, and ordnance
testing and firing. All countries have the
right to lay undersea cables and pipelines. |
|
The
LOS Convention explicitly authorizes each coastal
state to explore and exploit the resources of
the continental shelf and adjacent seabed out
to 200 miles from shore, whether or not it has
declared an EEZ. This "legal continental shelf"
is broader than the actual continental margin
in most places. Where the margin extends beyond
200 miles from the baseline, delimitation of the
seaward boundary is to be made by the coastal
state, pursuant to rules set forth in the Convention,
which among other things fix the maximum permissible
breadth of a legal continental shelf at 350 miles
on submarine ridges, even if the continental margin
is still broader. The coastal state's delimitation
of its continental shelf is to be reviewed by
the Commission on the Limits of the Continental
Shelf, whose response would determine whether
the rest of the world accepts this delimitation.
Most
of the countries at the LOS Conference held
that continental margins that extend more than
200 miles from the baseline encroach upon the
Area, and that profit from exploitation of any
resources found there should be shared with
all mankind. To gain the support of the majority
for coastal state ownership of continental margins
broader than 200 miles, the few states that
have such broad margins (including Argentina,
Australia, Canada, India, Ireland, Russia, the
United States, and the United Kingdom) agreed
to pay the rest of the world small royalties
from the proceeds of the exploitation of nonliving
resources in the regions beyond 200 miles from
shore.(5)
The
US Freedom of Navigation Program. The US
Government has long conducted a vigorous freedom
of navigation program through which it has asserted
its navigational rights in the face of what
it has regarded as excessive claims by coastal
states of jurisdiction over ocean space or international
passages. When remonstrations and protestations
are unavailing, elements of US military forces
may sail into or fly over disputed regions for
the purpose of demonstrating their right and
determination to continue to do so. But such
actions can have drawbacks:
-
Most
of the coastal states that control international
straits and passages are on friendly terms
with the United States and would rather
use the LOS Convention's dispute settlement
provisions than confront a physical challenge.
-
In
some instances, the cost, disadvantages,
or risks of physically challenging excessive
claims of jurisdiction might be deemed higher
than the benefits would warrant.
Other
maritime states that also object to excessive
coastal state claims of jurisdiction are both
less willing and less able than the United States
to physically challenge such claims.
The
Commission on the Limits of the Continental Shelf
Consisting
of 21 experts in fields such as geology, geophysics,
and hydrography, the Commission would rule on
the acceptability of proposed delimitations
of the continental margin by coastal states
in regions where the margin extends beyond 200
miles from the baseline. Members of the Commission
must be citizens of states parties, and only
states parties can nominate and vote for candidates.
The first election of members is scheduled to
be held in March 1997.
Exploitation
Versus Conservation
The
advance of technology on both land and sea is
putting the ocean's environment and living resources
at increasing risk. Overexploitation and pollution
broadly threaten marine life. The rate at which
global stocks of many fish and some marine mammals
are declining has accelerated alarmingly in
the past two decades. Notwithstanding continuing
improvements in fishing technology and more
intense exploitation of species that used to
be ignored or discarded, the global catch has
plateaued and could be headed downward.
The
LOS Convention recognizes the right of coastal
states to exploit both the living and nonliving
resources in an EEZ that may extend up to 200
miles from the shore or other baseline. The
Convention allows coastal states with especially
broad continental margins to exploit petroleum
and mineral resources found even farther offshore.
About 90 percent of the world's fish and marine
mammal populations are found within 200 miles
of shore.
Coastal
Fisheries. Coastal states are required
by the Convention to establish maximum sustainable
yields for the fisheries in their EEZs; they
are authorized to keep all of the harvest themselves
but obliged to give other states access to any
surplus. Indeed, foreign enterprises line up
to pay for the right to fish in the EEZs of
states that cannot efficiently harvest all of
their fish themselves.
The
management by coastal states of the living resources
in their EEZs is not subject to the Convention's
binding dispute settlement procedures; thus,
there is no way to prevent coastal states from
overexploiting their fisheries, and many have
been doing so; this is one of the reasons for
the precipitous declines in many fisheries.
High-Seas Fisheries. Recognizing that
ocean environment and resource problems are
not amenable to one-size-fits-all solutions,
the Convention's drafters opted to enunciate
principles and provide a framework in which
agreements tailored to specific regions or environmental
problems would be worked out.
This
approach has worked well in areas where states
need to collaborate with one another in order
to achieve their own objectives. Thus, considerable
progress has been made regarding the management
of straddling stocks and highly migratory species
of fish, which occupy more than one state's
EEZ or extend outside the zone of national jurisdiction:
-
Absent
special agreements dealing with such fisheries,
the portions found beyond the zone of national
jurisdiction are often regarded as fair
game for fishermen from any country.
-
Clearly,
efforts of a single coastal state to build
up stocks of such fish by limiting the catch
within its EEZ can be negated by overfishing
of the same stocks outside its EEZ.
-
Similarly,
efforts by some states to conserve a high-seas
fishery by limiting their catch would be
unavailing if other states exploiting the
same fishery simply increased their catch.
The
Bering Sea "Donut Hole" Agreement and Straddling
Stocks Agreement exemplify how concerned states
can work out among themselves ways to cooperate
to conserve high-seas fisheries they jointly
exploit.
Limiting
Pollution. The drafters of the Convention
obligated states parties to commit themselves
to protect and preserve the ocean environment
and to limit ocean pollution. States parties
have access to a range of legal mechanisms and
dispute settlement procedures if they want to
induce other states to comply with antipollution
provisions of the Convention.
Figure
3
Not Enough Fish To go Around
The
increasingly intensive and efficient fishing
practices made possible by advancing technology
have puched the gloval catch near 80 million
metric tons annually. Owing to the depletion
of many fisheries, the global yield is unlikely
to increase and may be headed downward. One
million fishermen crew an industrial fleet of
some 37,000 vessels worldwide, which accounts
for half the global catch; the world's other
12 million fishmen share the rest. Both high-tech
and low-tech fishermen face declining prospects,
because the global fishing industry is overbuilt
and overmanned. Already, many fishermen are
unable to make a living, and many more will
join them in the coming years.
The
net of the 200-foot-long Icelandic freezer-trawler
A
nearly empty fisherman's basket
The
Convention's enforcement mechanisms apply chiefly
to the 20 percent of pollution that comes from
maritime sources such as leaking seabed oil
wells, spills from tankers, and dumping at sea.
The rest of the pollutants reaching the ocean
come from land-based sources that are under
the jurisdiction of coastal states--and thus
beyond the writ of the Convention for practical
purposes.
To
be sure, international discussions on how to
reduce pollution from land-based sources are
under way. For example, a US-hosted conference
on the subject ended in November 1995 with the
adoption of a plan for further action. Achieving
agreement on effective measures is likely to
be a long and arduous process.
Preparing
To Manage Seabed Mining
Under the 1994 Agreement superseding the original
seabed mining provisions, a skeletal seabed
mining regime is to be set up, one that will
not do much nor cost much until such time as
seabed mining becomes economically feasible.
Plans called for an administrative Secretariat,
a legislative Assembly, and an executive Council
to be established, along with a Legal and Technical
Commission and a Finance Committee. The establishment
of other components of the ISBA is to be postponed
until there is a demonstrated need for them.
The
ISBA's Assembly of current and prospective states
parties (6) held its first meeting in Kingston, Jamaica (where
the ISBA is to be based), from 27 February through
17 March 1995. The meeting concluded without
having reached the required consensus on which
countries would be represented on the Council
and in the Council's three four-member chambers
with special voting rights--the Consumer, Investor,
and Producer chambers.
The
representatives of current and prospective states
parties met again in August 1995 but failed
again to reach consensus on these issues. The
main stumblingblocks concerned the membership
of the Investor chamber and the distribution
of seats among the world's various regional
blocs:
-
The
eight largest investors in seabed mining
(7)
were to decide among themselves which should
fill the four seats in the Investor chamber.
With three of them already penciled into
the Consumer chamber (Russia, the United
Kingdom, and the United States), the other
five were competing for the four available
seats in the Investor chamber.
-
The
Group of Latin American and Caribbean Countries
(GRULAC) had been offered six of the 36
seats on the Council but was seeking at
least seven. However, none of the other
regional groupings was willing to give up
a seat to the GRULAC.
Conserving
High-Seas Fisheries
An
Ace in the Hole. The ``Donut Hole''
is a high-seas region of the Bering Sea enclosed
by the EEZs of Russia and the United States.
By
the beginning of the 1990s it was clear that
the Alaskan pollock resource, the principal
fish stock of interest in the Donut Hole, was
facing collapse. In February 1991 the six countries
with fishing fleets that operate there--China,
Japan, Poland, Russia, South Korea, and the
United States--met in Washington to address
the problem. They agreed to a moratorium on
pollock fishing in the Donut Hole while they
crafted an arrangement that would help them
jointly conserve and manage this fishery.
In
February 1994, 10 conferences later, the six
parties completed negotiation of the Convention
on the Conservation and Management of Pollock
Resources in the Central Bering Sea. The Convention
established a mechanism for setting, on a scientific
basis, an allowable annual harvest level and
allocating it among the parties. It also encouraged
the parties to use the Convention mechanisms
to establish measures for the conservation and
management of other living marine resources
in the region as required.(a)
This
convention is but the latest of numerous arrangements
that regulate specific sorts of fishing on the
high seas--agreements that protect dolphins
and whales, that prohibit fishing with long
driftnets, and that regulate the catching of
tuna, salmon, pollock, turbot, and other species
that traverse the high seas. An emerging trend
in these agreements is the inclusion of enforcement
mechanisms and authorization for states to intervene
when violations by ships of another flag are
encountered.
The
Straddling Stocks Agreement. In early December
1995, the Agreement for the Implementation of
the Provisions of the UN Convention on the Law
of the Sea Relating to the Conservation and
Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks was approved by the UN
General Assembly and opened for signature. So
far, 23 countries including the United States
have signed the treaty.
This
convention aims to involve both coastal states
and distant-water fishing states in a program
to protect fisheries that extend beyond the
EEZs of coastal states. It obligates parties
to cooperate in specific ways to protect such
fisheries and to minimize the "by-catch" of
other fish stocks, and it authorizes monitoring
and inspection regimes that would make it hard
for rogue fishing vessels and fleets to get
away with cheating.
(a)
Overfishing has also depleted the pollock
fishery in the smaller "Peanut Hole," a high-seas
area of the Sea of Okhotsk that is surrounded
by the seaward margin of Russia's EEZ. As in
the Donut Hole, the five countries involved--China,
Japan, Poland, Russia, and South Korea--are
observing a moratorium on fishing for pollock
in the Peanut Hole, but they have not yet agreed
on how to share the resource once the stocks
recover.
In
March 1996 another meeting of representatives
of current and prospective states parties was
under way in Kingston. The conferees were making
encouraging progress toward resolving these
issues.
Facilitating
Settlement of Disputes
The Convention calls for disputes between states
parties concerning the application or interpretation
of the Convention to be settled under the terms
and conditions of relevant specific agreements
or by another peaceful means agreed to by the
parties involved. Compulsory provisions would
come into play only for certain classes of disputes
and only after other available approaches had
failed to produce a resolution. The dispute
settlement procedures established by the Convention
are available only to states parties, and only
states parties are subject to its compulsory
and binding provisions.
Compulsory
Conciliation. Certain disputes, such
as a charge that a coastal state was refusing
to share surplus fish from its EEZ, are subject
to compulsory conciliation, and states enmeshed
in other disputes may also opt for conciliation.
Such disputes are handled by a five-member
conciliation commissionconstituted under
Annex V of the LOS Convention.(8) The recommendations of a conciliation commission
are not binding on either party; thus, even
compulsory conciliation may fail to resolve
a dispute.
Compulsory
and Binding Arbitration. The Convention
provides four venues for the compulsory settlement
of disputes. With certain exceptions, when they
become party to the Convention or at any time
thereafter, states parties can declare which
venues they intend to use for dispute settlement.
The four venues are:
-
The
International Court of Justice.
-
The
International Tribunal for the Law of the
Sea (once it is set up). The Tribunal's
Sea-Bed Disputes Chamber will be the only
authorized venue for such disputes.
-
A
five-member arbitral tribunal constituted
in accordance with Annex VII of the LOS
Convention.(9)
If the parties to a dispute (not involving
seabed mining) cannot agree on any other
venue, the dispute will be handled in this
venue.
-
A
five-member special arbitral tribunal
constituted in accordance with Annex VIII
of the LOS Convention, for disputes involving
fisheries, protection and preservation of
the marine environment, marine scientific
research, and navigation including pollution
from vessels and by dumping.(10)
Although
the procedures for setting up the two sorts
of arbitral tribunals are a bit different, they
are both designed to establish a level playing
field in which neither disputant would have
an innate advantage and cases would be decided
solely on their legal and technical merits.
Figure
4
High-Seas Pollock Fisheries in the Northern
Pacific
The
International Sea-Bed Authority
Based
in Kingston, Jamaica, the ISBA will serve as
the body through which parties to the Convention
organize and carry out exploitation of the mineral
resources of the deep seabed. It will consist
of:
-
The
Assembly, in which each state party
has one vote.
-
The
Council, which is to have 36 seats
apportioned so as to provide representation
for all major blocs of countries with special
interests in seabed mining, as well as balance
among the world's geographic groupings.
The Council will have three four-member
chambers with special voting rights, the
Consumer, Investor,
and Producer chambers.
(a)
-
The Secretariat, headed by a
Secretary General elected
by the assembly from among candidates nominated
by the Council.
-
The
Enterprise, which would engage
in seabed mining on behalf of the developing
world. It will not be established unless
and until the economic viability of seabed
mining has been demonstrated.
-
The Finance Committee, eventually
to comprise 15 persons elected by the Council--including
representatives of the five largest financial
contributors to the ISBA, until such time
as the ISBA becomes financially self-supporting.
For the time being, the ISBA's expenses
are to be paid out of the general UN budget,
and the Finance Committee is to consist
of the representatives of the five largest
contributors to that budget. In 1995 those
countries were the United States, Japan,
Germany, France, and Russia, in that order.
-
The
Legal and Technical Commission,
also to comprise 15 experts elected by the
Council.
-
The
Economic Planning Commission, also
to comprise 15 experts elected by the Council.
Its establishment has been deferred indefinitely,
in view of the economic unviability of seabed
mining, and its functions are to be handled
by the Legal and Technical Commission.
(a)
The Consumer chamber
would protect the interests of the major importers
of minerals found on the seabed; the Investor
chamber would protect the interests of the
states that had invested the most in seabed
mining; the Producer chamber
would protect the interests of the major land-based
exporters of the minerals found on the seabed,
especially those countries whose economies are
especially dependent on such exports. Three
of the countries in any of these chambers could
block (veto) decisions of the Council as a whole.
The United States and Russia are guaranteed
seats in the Consumer chamber, along with two
other industrialized states.
The
United States proposes to submit LOS disputes
in which it is involved to special arbitral
tribunals constituted under Annex VIII when
the disputes fall into any of the categories
handled by such tribunals, and to submit to
arbitral tribunals constituted under Annex VII
all other LOS disputes in which it is involved--except
those related to seabed mining, which would
be handled by the LOS Tribunal.
The
International Tribunal for the Law of the Sea
Based
in Hamburg, Germany, the LOS Tribunal is to
consist of 21 judges, of whom 11 will also be
members of the Sea-Bed Disputes Chamber. The
Tribunal is to adjudicate disputes among states
parties over matters covered in the LOS Convention,
though only disputes involving seabed mining
must be brought before it. Membership is to
be geographically balanced, and all of the world's
major legal systems are to be represented. Each
judge is to be a citizen of a different country.
The first election of judges is scheduled for
early August 1996. Only states parties may cast
votes.
At
time of ratification or accession, states may
opt out of the Convention's compulsory dispute
settlement procedures in the cases of maritime
boundary disputes, military operations and certain
law enforcement operations, and disputes involving
activities authorized by the UN Security Council.
The US Government proposes to do so.
Basic
or Contractual Rights? Some of the states
that control international straits or archipelagic
sea lanes have suggested that key navigational
freedoms such as transit passage are not customary
international law but rather rights that flow
from becoming a party to the LOS Convention.
They have argued, contrary to the understanding
of the United States and other maritime countries,
that the Convention is a contract among the
states parties and that states that have refused
to be bound by its provisions should not enjoy
its benefits. Most of these states are not currently
pressing for this interpretation.
What
Other Governments Plan To Do
The
Downside of Delay
Many states are moving quickly to become parties
to the Convention because they want:
-
To
help shape the institutions that are being
set up under the Convention and to promote
the adoption of policies they may favor,
such as holding down administrative costs.
-
To
try to arrange for their own citizens to
be elected to positions in the organizations
established by the Convention. The elections
for the seats on the LOS Tribunal and the
Continental Shelf Commission are scheduled
to be held in 1996 and 1997, respectively.
-
To
nominate their own citizens to the UN-maintained
lists of experts and arbitrators from which
dispute settlement panels would be drawn.
The
Industrialized States
Impending Rush to Ratification.
For many years, the industrialized states held
back, waiting first for a better deal on seabed
mining and then for the US Government to pronounce
itself satisfied with the deal. Once Washington
indicated it supported the Convention, as amended
by the Agreement, the governments of most of
the other industrialized states set in motion
the procedures through which they would become
parties to the Convention.
Already,
Australia, Germany, Greece, and Italy have ratified
the Convention. Many others, including Canada
and Japan as well as France, the United Kingdom,
and most of the other West European states,
have indicated their ratifications are pending.
Nearly all of the rest of the developed countries
are likely to become parties to the Convention
during 1996.
The
Former East European Bloc
The Soviet Union and its allies formed a separate
regional bloc during the LOS negotiations. They
supported the original seabed mining provisions,
mainly to show solidarity with the developing
world, and they all signed the Convention. But
none of them subsequently ratified it. With
the termination of the Communist alliance and
the dissolution of the Soviet Union, the East
European bloc has dissolved, although it continues
to be treated as a regional grouping in the
ISBA organizational meetings. Each country in
the region must now decide for itself what to
do about the Convention.
Russia
Dubious. Russia liked the original seabed
mining provisions no better than the United
States. Moreover, it has reservations about
the 1994 Agreement, questioning whether it will
be possible to create a small, efficient, and
inexpensive UN bureaucracy to manage seabed
mining. Russia was one of the few states that
abstained on the UN resolution adopting the
Agreement, and it has not signed the Agreement.
But it did agree to apply the Agreement provisionally,
so that it could participate in the ISBA organizational
meetings. Given these mixed signals, it is difficult
to predict with confidence what Russia will
do about the LOS Convention.
NIS Disengaged. With Russia inheriting
the place of the Soviet Union in LOS conclaves,
the newly independent states of the former Soviet
Union have no established roles or positions
with regard to LOS. Aside from the Baltic states,
these countries have no ocean coastlines, although
some in central Asia border on large inland
seas. Among them, only Ukraine is currently
moving toward ratification.
East
Europeans Supportive. Among the East
European countries, Poland is moving toward
becoming a party to the Convention, and Bulgaria
has expressed interest in doing so. We anticipate
that, eventually, most of the East European
countries will follow the example of the West
European countries and become parties to the
Convention.
Apart
from former Warsaw Pact states, the former Yugoslavia,
reflecting its position as a leader of the nonaligned
movement, became a party to the Convention in
1986. The "Federal Republic of Yugoslavia" (Serbia
and Montenegro) claims to have inherited Yugoslavia's
position as a party to the Convention, but the
United States does not recognize this claim.
The other Yugoslav successor states--Bosnia
and Herzegovina, Croatia, The Former Yugoslav
Republic of Macedonia, and Slovenia all have
consented to be bound by the Convention.
Looming
Deadlines
-
17
June 1996. Nominations close
for candidates for the International Tribunal
on the Law of the Sea.
-
30
June 1996. Nominations for the
Tribunal lapse if nominating state has not
submitted instrument of ratification or
accession.
-
Early
August 1996. Election of the
21 judges on the International Tribunal
on the Law of the Sea, including the 11
who will sit in the Seabed Disputes Chamber.
The Convention allows only states parties
to nominate and vote for candidates, though
the candidates do not have to be citizens
of states parties.
-
16
November 1996. Until this date,
states that have signed but not ratified
the Agreement and that are moving toward
ratification of the Convention may participate
in the ISBA as if they were states parties,
whether or not the Agreement has entered
into effect. This two-year grace period
may be renewed once, for two more years.
-
March
1997. Election of the 21 members
of the Commission on the Limits of the Continental
Shelf. The Convention allows only states
parties to nominate and vote for candidates,
who must be citizens of states parties.
-
16
November 1998. If the Agreement
has not entered into effect by this date,
it is void, and the seabed mining provisions
revert to the original text of Part XI of
the LOS Convention. Furthermore, whether
or not the Agreement has entered into effect,
as of this date states that have not ratified
or acceded to the LOS Convention may no
longer participate in the ISBA. The legal
status of the minesite claims of seabed
mining consortiums from these states may
be called into question.
Developing
Countries
Many
of the developing countries that ratified the
Convention before the seabed provisions were
modified did so because they liked the original
provisions. They are doubtless disappointed
that the Agreement watered down these provisions;
indeed, many have said so. Nevertheless, they
are happy that the logjam over seabed mining
has broken and enthusiastic about the prospects
for US accession, which they believe will ensure
that the LOS Convention will attain all but
universal support.
A
good number of developing countries that had
not ratified the Convention did so in the wake
of the seabed mining Agreement. Among them were
Bolivia, India, Lebanon, Mauritius, Sierra Leone,
and Sri Lanka. Among other developing states
South Korea has just ratified the Convention,
and Chile has said it intends to do so. China
will probably ratify the Convention but appears
to be waiting until the other major countries
do so.
All
of the members of the Association of Southeast
Asian Nations (ASEAN) signed the Convention,
and four have ratified it--Indonesia, the Philippines,
Singapore, and Vietnam. Wary about China's power
and intentions in the South China Sea, the ASEAN
countries have been hoping that widespread acceptance
of the Convention, which facilitates the peaceful
resolution of maritime disputes, will help establish
a climate in which the conflicting claims of
sovereignty in the Spratly Islands can be peacefully--and
equitably--resolved. To be sure, the Convention's
provisions do not apply to disputes over the
ownership of land.
Opponents
of the Convention
A few countries oppose the Convention because
they object to specific provisions that, they
hold, would damage their national interests
if implemented.
Turkey
is not acceding to the Convention, in part because
it objects to the provision that coastal countries
may claim up to a 12-mile territorial sea. The
extension by Athens of the territorial sea around
all Greek islands from the current 6 miles to
12 miles would reduce the area in the eastern
Aegean in which Turkish ships and aircraft,
along with other foreign ships and aircraft,
would enjoy high-seas freedoms of navigation
and overflight.(11)
Instead, foreign ships and aircraft operating
in the expanded Greek territorial sea would
be subject to the more restrictive regimes of
innocent passage and transit passage. Turkey
also fears that such a declaration by Greece
would jeopardize its claim to jurisdiction over
the continental shelf off its Aegean coast.
Figure
5
Extent of Hypothetical 12-Nautical-Mile Greek
Territorial Sea in the Aegean
Israel
long opposed the Convention, partly because
of objections to seabed mining provisions that
could have conveyed benefits to the Palestine
Liberation Organization (PLO), and also because
of objections to other provisions related to
navigation through straits. But changes to the
Convention's seabed mining section and progress
in the Middle East peace process have reduced
the salience of these objections. Israel has
substantial maritime interests and is now giving
serious consideration to acceding to the Convention.
A
number of Latin American states that objected
to certain provisions of the LOS Convention
refused to sign either the Convention or the
Agreement. Their absence at LOS conclaves thinned
the ranks of the GRULAC and limited their influence
on the Convention. Now several of those Latin
American countries are considering acceding
to the LOS Convention.
Contention
in the South China Sea
Sovereignty
over the islands and waters of the South China
Sea has been disputed by regional claimants
for decades. At the center of the disputes lie
the Spratly Islands, a group of islands, islets,
reefs, atolls, and cays in the southern part
of the South China Sea, near strategic sea lanes
and lines of communication between the Indian
and Pacific Oceans. The archipelago has no indigenous
inhabitants.
Oil
Discoveries Raise the Stakes
In 1969, interest in the Spratlys intensified
after a UN-sponsored seismic survey suggested
the presence of extensive deposits of oil and
gas under the South China Sea. Although reliable
estimates of reserves were (and still are) lacking,
and recovery costs would be high, the discovery
of oil and gas deposits in the continental shelves
of Vietnam, Malaysia, and Brunei heightened
anticipation that additional petroleum deposits
might be discovered farther offshore. Confirmation
came when oil was found in the region between
the Vietnamese coast and Spratly Island--the
westernmost island in the chain.
Vietnam
and China (as well as Taiwan) claim sovereignty
over the entire Spratly archipelago; the Philippines
claims a substantial part of it; Malaysia and
Brunei claim much smaller parts. In support
of these claims, outposts have now been established
on dozens of islands and reefs. Most were built
by Malaysia, the Philippines, and--especially--Vietnam
in the early and mid-1980s.(a)In
1988, China adopted a much more assertive approach
toward the Spratlys by occupying six reefs,
resulting in a brief clash with Vietnamese naval
forces and prompting Hanoi to expand and reinforce
its outposts.
Efforts
To Reduce Tensions
China has been trying to deal with each of
the other claimants on a bilateral basis. All
of the claimants except China, however, belong
to the Association of Southeast Asian Nations
(ASEAN) and would rather deal with China as
a bloc than individually.
Since
1993, Indonesia has hosted a series of informal
"workshops" for all rival South China Sea claimants
as part of an ASEAN effort to reduce regional
tension and peacefully resolve conflicting claims.
Officials and scholars from China, Taiwan, and
Southeast Asian countries participated in the
sixth such workshop, which ended in October
1995.
They
did not address the crucial sovereignty issues,
and they could not agree on measures to reduce
military activity in contested areas. They did
agree, however, to participate in a study of
biodiversity in the South China Sea and to cooperate
on marine legal and scientific research and
on navigation and shipping safety issues.
All
of the claimants hold that their positions are
consistent with the LOS Convention, which all
have signed and some have ratified. The Convention
contains guidelines on settling overlapping
maritime claims--mainly, it encourages rival
claimants to split the differences unless special
circumstances call for a different delineation.
(Recent decisions by the International Court
of Justice have tended to give more weight to
continental areas than to islands.) But these
provisions pertain to circumstances where ownership
of the relevant land areas is not in dispute.
The Convention contains no guidelines for adjudicating
disputes over the ownership of land. Thus, until
the competing claims of sovereignty are resolved,
the Convention's provisions for dealing with
overlapping maritime zones cannot be applied.
(a)
Possession of the islands--the habitable
features above sea level at high tide--could
be important because, according to the LOS Convention,
they can cast territorial seas and, in some
cases, EEZs up to 200 miles from shore. (Features
that are under water at high tide do not qualify,
even if structures have been built on them and
are permanently occupied.)
How
Close to Universality?
Many
countries believe that US accession would lead
to the Convention achieving virtually universal
support--something many of the countries participating
in the negotiations regarded as an important
milestone in international relations. Though
most if not all of the other industrialized
countries will ratify the treaty whether the
United States does so or not, some of the smaller
countries with no direct stake in maritime issues
may view a global maritime convention without
US participation as not worth joining. On the
other hand, US accession would probably trigger
ratifications and accessions by other countries
not yet on board.
Annex
The
Seabed Mining Provisions: Old and New Compared
The
Controversial Original Text
The
original Part XI of the LOS Convention explicitly
asserted UN control over the mineral resources
of the area of the deep seabed seaward of the
limits of national jurisdiction--called the
Area for short. Moreover, it established a seabed
mining regime under which a new agency--the
International Sea-Bed Authority (ISBA)--would
not only authorize and oversee seabed mining
undertaken by organizations from the developed
world but would also engage in seabed mining
itself, on behalf of the developing countries.
Specifically,
the Convention set up a "parallel system" in
which the seabed would be mined both by an Enterprise
controlled by the ISBA and by various national
and multinational entities, mostly from the
industrialized world--with ISBA oversight. To
make this system feasible, the latter were to
be required to pay substantial up-front fees,
which would be used to fund the ISBA and the
Enterprise. The other mining entities were also
to turn over to the ISBA for exploitation by
the Enterprise half of each minesite they had
identified. And they were to transfer to the
Enterprise their proprietary mining technology,
so the Enterprise could compete with them on
even terms.
These
and other seabed mining provisions were strongly
opposed by the United States and many other
industrialized countries, which characterized
the regime as so interventionist, centrally
planned, and bureaucratic that it would discourage
investment and prevent development of the seabed
resources. The US Government objected specifically
that, among other things, these provisions would:
-
Require
the US Government to fund 25 percent of
the cost of the ISBA but without guaranteeing
the United States a seat on the Council
of the ISBA.
-
Allow
amendments to be adopted without US consent
that would nevertheless be binding on the
US Government.
-
Permit
distribution of revenues from seabed mining
to national liberation movements.
-
Require
the transfer of proprietary seabed mining
technology to the Enterprise and, indirectly,
to other nations.
-
Impose
limits on the quantities of minerals produced
from the seabed, in order not to disadvantage
land-based producers.
-
Force
commercial miners to pay the Authority large
initial and annual fees well before production
had commenced, indeed, well before the feasibility
of their operations had been established.
The
Interregnum
Because
of their objections to the seabed mining section,
the United States, United Kingdom, and West
Germany did not sign the Convention, and the
other industrialized nations that did sign it
did not subsequently ratify it. Instead, they
proceeded to abide by the provisions of the
Convention except for those relating to seabed
mining.
In
1984, Belgium, France, West Germany, Italy,
Japan, the Netherlands, the United Kingdom,
and the United States entered into the "Reciprocating
States Agreement," which set forth the rules
and procedures under which, in the absence of
an LOS Convention, their firms would undertake
seabed mining. In lieu of registering their
minesites with the ISBA Preparatory Committee
as called for in Part XI of the Convention,
most of the Western seabed mining consortia
registered their exploratory sites under the
existing laws of the United Kingdom, the United
States, or West Germany.
The
Amending Agreement
In
1990, amidst a general thaw in both East-West
relations and North-South relations, the UN
Secretary General sponsored new consultations
aimed explicitly at ameliorating the objections
of the United States and the other industrialized
countries to the Convention's seabed mining
regime. Many of the developing countries had
become willing to revisit this issue, because
they recognized that the developed countries
were unified in opposition to these provisions
and would not accede to the Convention unless
they were changed. Moreover:
-
Support
for the NIEO had waned, apace with the weakening
of G-77 cohesion caused in part by increasing
disparities in economic development among
member states.
-
The
advantages of market economics and decentralized
management had become increasingly obvious
in the wake of the collapse of the Soviet
Union; in this context the seabed mining
provisions were recognized as unworkable
and anachronistic.
-
Continued
depressed global metal prices and the escalating
costs of mounting a deep-seabed mining effort
had combined to push the prospect of revenues
from such mining well into the future.
Over
several years, an Agreement designed to supersede
the seabed mining provisions of the Convention
was hammered out between representatives of
the United States and other developed countries
and representatives of developing countries.
The latter yielded on many of the original provisions
with reluctance, and only because they understood
that in return the United States and the other
developed countries would accede to the Convention.
Indeed, the Agreement contains a provision to
the effect that, unless seven of the 14 pioneer
seabed mining investor states, including five
developed countries, ratify the LOS Convention
by 16 November 1998, that is, within four years
after it went into effect, the seabed mining
provisions will revert to the Convention's original
text:
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The
10 developed countries registered as pioneer
investors are Belgium, Canada, France, Germany,
Japan, Italy, Netherlands, Russia, the United
Kingdom, and the United States; the other
four pioneer investors were China, India,
Poland (fronting for Eastern Europe), and
South Korea.
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Of
those countries, so far only Germany, India,
Italy, and South Korea have become parties
to the Convention, but enough of the others
are likely to do so to meet the specified
conditions by mid-1996.
In
July 1994, the new Agreement was presented to
the UN General Assembly, and a resolution supporting
it was overwhelmingly approved, with 121 states
in favor and none opposed. The next day, more
than 50 states-- including the United States--signed
the Agreement. As of early December, 124 countries
including all of the other major industrialized
states have indicated their support of the Agreement.
The New Provisions
The
Agreement changed the proposed regime in several
fundamental ways. In particular, it reduced
the power of the developing countries as a voting
bloc in the ISBA and increased the influence
of the United States and other industrialized
countries, should they accede to the convention.
The Assembly is now permitted only to ratify
or remand decisions of the Council; it cannot
originate policy. Among other things, the Agreement:
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Sets
up three four-member chambers of the Council--one
for the major Consumers (importers)
of minerals that could be mined from the
seabed, one for the major Investors
in seabed mining, and one for the major
land-based Producers (exporters)
of minerals that could be mined from the
seabed.(12)
Three of the members of any of these chambers
could block decisions of the Council. Another
arrangement would permit as few as 11 developing
countries to block decisions of the Council.
-
Gives
the United States one of the seats in the
Consumer chamber, thus guaranteeing it a
seat on the Council as a whole. Russia is
also guaranteed a seat in this chamber.
(13) The other two members would be industrialized
states that are major importers of the minerals
available from the seabed. Consequently,
the US Government could block decisions
of the Council with the support of two of
the other three members of the Consumer
chamber.
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Requires
that substantive decisions in four areas
be made only by consensus. The areas are
(1) protecting land-based producers from
adverse effects of seabed mining; (2) revenue
sharing; (3) amendments to rules, regulations,
and procedures implementing the seabed mining
regime; and (4) amendments to the seabed
mining regime itself.
In
addition, the Agreement addresses other US objections
to the original seabed mining provisions by:
-
Establishing
a Finance Committee controlled by the five
largest contributors to the Authority's
budget to make budget and financial decisions
by consensus. Because the ISBA's expenses
are currently being defrayed out of the
UN budget, to which the United States is
the largest contributor, the United States
is a member of the Finance Committee.
-
Eliminating
the provisions compelling the transfer of
technology to the Enterprise. Instead, seabed
mining consortia are simply encouraged to
undertake joint mining operations with the
Enterprise. (14)
-
Eliminating
production control measures.
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Significantly
reducing the fees required of commercial
miners before the onset of production