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Key issues at the Fifth Session of the UN Law of the Sea Conference
UNITED NATIONS ACTIVITIES
Key Issues at the Fifth Session of the UN Law of the Sea Conference by D. H. ANDERSON* A. Introduction The fifth session of the Third United Nations Conference on the Law of the Sea was held at United Nations Headquarters in New York from 2 August to 17 September 1976. The work of the Conference has been well documented) Each session has had its own character. The first (December 1973) dealt with the questions of organisation such as creating committees, appointing chairmen and discussing the rules of procedure. The second s.ession in Caracas (1974) saw the adoption of the rules of procedure, the outlining of governments' positions and the taking of first steps towards identifying possible areas of consensus. At the third session (Geneva 1975) trends which had emerged with a broad measure of support on the basis of informal discussions were formulated by the Chairmen of the Committees into the informal Single Negotiating T e x t (SNT). 2 The fourth session (New York, spring 1976) was the occasion for a detailed review of the SNT, on the basis of which the Chairmen produced the Revised Single Negotiating Text (RSNT). 3 The purpose of this article is to describe the fifth session.
Organisation of the Session At the outset there was some discussion as to how the work should proceed. 4 The RSNT had been received by delegations at the very end of the fourth session and so had not been discussed. Clearly, it had to form the main basis of discussion, but equally there was a *Legal Counsellor, Foreign and Commonwealth Office, London. The views expressed herein are those of the author and have no official standing.
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general awareness that the session could not be devoted to the same sort of detailed discussion of the RSNT which the forth session had given to the SNT. Accordingly, it was suggested that the Conference should concentrate on certain key issues to be identified by each Committee. (The one exception was the subject of the settlement of disputes where no detailed discussion had taken place on the text tabled by the President of the Conference, s This text formed the subject of a detailed review by informal meetings of the Plenary.) At the outset, the intention was to proceed from the consideration of key issues to a new phase of the work following the "formalisation" of the four parts of the negotiating text. The effect of formalisation would be to make the formal text the main working document of the Conference by decision of the Conference. This decision would remove the element of personal responsibility for the four texts from th6 President of the Conference and the Chairmen of the three main Committees; and it would clearly enhance the status of the formal text in the process of further negotiation within the Conference. For a number of reasons, the Conference did not proceed to formalise the text during the fifth session. In the first place, there were a lot of key issues. This was not surprising having regard to the breadth of the Conference's agenda. Secondly, the fifth session was held less than three months after the end of the fourth and so there had been very little time for governments to review their positions and to consult in advance with other governments (eg., ones in the same region on issues with regional significance). Thirdly, the rate of progress on one key issue was influenced by the progress or lack of progress on other
key issues, sometimes in different Committees. Most significantly the difficulties in the work of the First Committee had effect in the Second and Third Committees.
Working Methods The General Committee of the Conference met regularly at the start of each week in order to review progress and consider the way ahead. The First Committee chaired by Engo (Cameroon) held 13 formal meetings on the record but most of the Committee's time was spent in informal meetings. These took the form of a "Workshop" composed of all delegations and co-chaired by Jagota (India) and Sondaal (Netherlands). The Workshop, in turn, set up an ad hoc negotiating group of 26 members but other delegations were entitled to attend and participate. Procedures were evolved for the process of reporting from one body to the other. 6 One issue was central to the work - what should be the system for exploiting the mineral resources of the seabed beyond the limits of national jurisdiction? The Second Committee held no meetings on the record: instead, all its work was done in informal meetings. Meetings were chaired by Aguilar (Venezuela), except for a short period of absence when Njenga (Kenya) deputised for him, and took the form of meetings of the Committee itself or of a negotiating group on a particular topic to which all delegations were invited. At a later stage, the Chairman invited certain delegations to attend meetings of consultative groups on certain key issues. These included the legal status of the economic zone, the question of access to the sea by landlocked States and the definition of the outer edge of the continental margin. In addition,
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informal discussions were held between 10 representatives of the Group of Coastal States and 10 representatives of the Group of Landlocked and other Geographically Disadvantaged States about the access of members of the latter Group to the living resources of the economic zones of coastal States. These meetings were arranged by the two Groups (which include most but not all delegations) and chaired by Nandan (Fiji). The Third Committee (presided over by Yankov (Bulgaria)) held six meetings on the record (mainly in order to review the work of the session towards the end) as well as 28 informal meetings: 13 on the protection and preservation of the marine environment, 13 on marine scientific research and two on the transfer of technology. In addition, a number of meetings of smaller groups were held. The key issues were vessel-source pollution generally and marine scientific research in the economic zone and on the continental shelf. In addition to the work of the three main Committees, regular meetings of the Plenary in informal session were held under the chairmanship of Amerasinghe (Sir Lanka) and, in his absence, Evensen (Norway) in order to discuss, Article by Article, the President's text on the settlement of disputes. Here, the key questions were (a) what sort of institutional arrange. ments would be most appropriate?, and (b) what exceptions if any should be allowed? To sum up, a great deal of work done on many different issues using different working methods. The First Committee was rather more formal and less productive than the other organs: in particular, the Second and Third Committees were able to make some headway in small negotiating groups under the guidance of the resPective Chairmen. The areas in which future compromises may be reached were defined more clearly. But no agreements were sealed on the key issues, of which the following are perhaps the most significant. 7
B. Key Issues
1. The System for the Exploitation of the Deep Seabed This issue was at the heart of much of the discussion in the First Corn-
Environmental Policy and Law, 2 (1976)
mittee. The issue is conveniently stated in the report by the Chairman on the work of the session, s as follows: "Should the new system of exploitation provide for a guaranteed permanent role in sea-bed mineral exploitation for States Parties and private finns? Or should such a role for States Parties and private firms be considered only at the option of and subject to conditions negotiated by the Authority? Or again, should their role be conceived of as essentially temporary, to be phased out over a defined period agreed to beforehand?"
companies and State trading enterprises rather than exclusively. The US delegation put forward proposals designed to permit the Enterprise to begin mining operations at about the same time as companies or State enterprises and the Secretariat prepared a note on alternative means of financing the Enterprise. l° In his report on the fifth session, the Chairman of the First Committee noted that developing countries now generally accept that, as well as the Enterprise, other entities such as companies may also participate in mining operations in a form of association with the Authority ; and that there
Law of Sea Conference opens Fifth Session, agrees that main committee should select key issues for negotiation.
In the early days of discussion, notably in the Sea-Bed Committee, many developed countries favoured a system whereby exploitation would be carried out. by companies or State trading enterprises under a licensing system administered by the future International Authority. Developing countries favoured a different system whereby the International Authority would have an arm to be called the Enterprise which alone would conduct mining operations. In this way, it was felt that the "common heritage of mankind" (a concept put forward in the General Assembly's Declaration of Principles in 19709 ) would be exploited by an entity which in a sense represented mankind as a whole. In the course of discussions, developed countries have come to accept that there should be an Enterprise and that it should conduct mining operations, but only on the basis that it would operate in parallel with
exists a common interest in encouraging rapid and efficient seabed mining operations in order to increase supplies of raw materials, under a system which would protect land-based producers. Much work remains to be done on this issue in order to work out the respective roles of the Enterprise and other entities and their relationship with the Authority in each case. No doubt, discussions will take place before the next session with a view to reaching a consensus at an early stage of the sixth session. There remains the possibility of legislation on the subject of deep sea mining being enacted by the United States Congress and this is clearly a factor to be weighed in any assessment of future prospects at that session.
2. Status of the Economic Zone One of the main contributions of the current Conference to the development of international law is the elaboration of 155
the concept of the economic zone. At the fifth session, discussions were held as to the precise extent of the rights and duties of the coastal State, as well as those of third States, in the zone. The rights of the former are set out most prominently in Article 44 of Part II of the RSNT, whilst those of the latter form the subject of its Article 46. Also relevant are its Articles 47 (resolution o f conflicts regarding the attribution of rights in the zone) and 75 (the definition of the term "high seas"). As well as discussing possible adjustments to Articles 44 and 46, the Second Committee also addressed the underlying issue of the status of the waters. The question was were the waters to have the residual status of high seas (ie., high seas minus the total of the rights and jurisdiction accorded to the coastal State under the Convention), or were they to be recognised as being sui generis? The Chairman of the Com-
navigation, overflight and cable and pipe4aying, as well as other uses, would continue to have the character of "high seas" freedoms and uses, in the sense understood in international practice. In informal discussions some progress was made towards finding solutions which may prove acceptable to those delegations who consider the waters of the economic zone to be sui generis and which at the same time could allay the genuine preoccupations of other delegations about navigational and other uses of the vast areas of sea in question.
3. Access to Fishing Grounds Under the scheme of the RSNT, the coastal State is entitled to establish beyond its territorial sea an economic zone extending to a maximum of 200 miles from the baselines from which the territorial sea is measured. In that zone, the coastal State would be entitled, subject to some qualifications, to
Former whaleship on a mission o f peace.
mittee in the introduction to his RSNT H had indicated that in his opinion the waters were suigeneris and in this he could cite the decision of the International Court of Justice in the Fisheries Jurisdiction Cases 12 to the effect that under present law a fisheries zone is a tertium genus between the territorial sea and the high seas. The principal concerns of those delegations which supported the view of "high seas minus" were two-fold. Firstly, there was the danger of "creeping jurisdiction" on the part of the coastal State over the zone, to the detriment of the rights of third States. A second concern was to make clear that the freedoms of 156
harvest as much fish as it has capacity to harvest, subject to not exceeding the maximum sustainable yield. 13 The terms of the RSNT reflect the considerable changes in State practice (and therefore international law) which have been witnessed in recent times. However, groups of States - notably those which are landlocked and those which consider themselves to be "geographically disadvantaged" clearly do not benefit directly from a law based on broad limits. Accordingly, the members of the group of "Landlocked and Geographically Disadvantaged States" at the Conference pressed for improvements in the Articles on fishing.
Detailed discussions were held in the informal ad hoc Group of 21 (made up of 10 Coastal States and 10 Landlocked and Geographically Disadvantaged States under the chairmanship of Nandan) upon the possibility of making changes in the text of Articles 58 to 60 benefiting developing States which are either landlocked or unable to extend their limits on account of the proximity of neighbours. (The RSNT already makes a distinction between developing and developed States on the rationale that the former need protein supplies in order to further their development.) Discussions in the Group of 21 were inconclusive but some new ideas were considered. The Second Committee, as such, made little progress on this issue, however.
4. Continental Margin A considerable number of States in the world have already exercised sovereign rights over areas of seabed which, in geological terms, are the continental shelf, continental slope and continental rise. These rights are based to a large extent upon customary international law, including the concept of jurisdiction over the natural prolongation of the land mass of the coastal State into and under the sea) 4 At the Conference, delegations from States which have a limited or no continental shelf have expressed concern about the possibility of encroachment by other States upon the deep seabed. During the fourth session, proposals were put forward by the "broad margin" States which were designed to clarify and complement the definition of the "legal" continental shelf contained in Article 62 of the SNT (now Article 64 of the RSNT) where it extends beyond the 200-mile line. These proposals for additional paragraphs took the foot of the continental slope (a major natural feature in the world) as a key element and contained two additional criteria for fixing the outer limit beyond 200 miles, is The first was a maximum distance of 60 nautical miles beyond the foot of the continental slope. (In many parts of the world, the continental rise extends more than that distance.) The second criterion would be to delimit the continental margin beyond 200 miles by reference to the thickness of the sedimentary rocks forming the rise, taken in relation to the distance from the foot of the continental slope. In general terms, this criterion would create a sort of"sliding scale", bearing
Environmental Policy and Law, 2 (1976)
in mind that the rise tends to taper off from the foot of the slope into the deep ocean floor. In his commentary to his RSNT, 3 the Chairman of the Second Committee called for further examination of these proposals at expert level. Lengthy discussions of them accordingly took place during the fifth session, together with other proposals whereby the coastal State would make contributions of revenue (or product) from the exploitation of the seabed and subsoil under its jurisdiction beyond the 200-mile line. In his Report on the session, 16 the Chairmen of the Second Committee expressed the view that the recognition of rights beyond 200 miles was one of the main elements of the "package deal".
coastal State rather too greatly. Other delegations considered that such a prohibition was justified in the general interest because national regulations on the design, construction, equipment or manning of foreign ships in transit through the territorial sea could lead to a chaotic situation in which ships were subject to different standards in different parts of the world to the detriment of world trade. After long discussions, a possible way of making further progress in the Third Committee was identified whereby the issue would
of the areas in question, other delegations would confine the need for consent, whether explicit or tacit, to that type of marine scientific research which is directed towards the discovery and evaluation of valuable economic resources such as fish and oil, a solution somewhat similar to that contained in Article 5 of the Convention on the Continental Shelf of 1958. At the fifth session, informal consultations were held on this issue, taking Article 60 of the Third Committee's RSNT as the starting point and later a "test
5. Vessel Source Pollution At the fifth session, the members of the Third Committee concerned with the preservation of the marine environment and the prevention of pollution concentrated on this issue. Discussion centred largely on the rules for vessels in the territorial sea. A possible tension was identified betweefi Article 20(2) of Part II of the RSNT and Article 21(3) of Part III. Article 20 of Part II concerns the legislative powers of coastal States. Its paragraph 1 lists eight subjects on which the coastal State's power to make laws relating to foreign vessels on innocent passage through the territorial sea is recognised. Paragraph 2 contains the qualification that: "Such laws ... shall not apply to or affect the design, construction, manning or equipment of foreign ships or matters regulated by generally accepted international rules unless specifically authorized by such rules." Article 21(3) of Part III reads: " Coastal States may, in the exercise of their sovereignty within their territorial sea, establish national laws ... for the prevention, reduction and control of marine pollution from vessels. In establishing such laws .... coastal States shall ... not interrupt or hamper the innocent passage of foreign vessels." Certain delegations considered that the prohibition contained in Article 20(2) of the Articles on the right of coastal States to legislate for foreign ships in innocent passage through the territorial sea would have the effect of circumscribing the sovereignty of the
Environmental Policy and Law, 2 (1976)
Law of Sea Conference ends Fifth Session. Next Session in New York beginning23 May 1977.
be considered in two parts. The first would concern the design, construction, equipment and manning of ships and the second "matters regulated by generally accepted international rules". Thereafter, there would, of course, have to be coordination with the Second Committee where the subject is dealt with primarily and then as part of a wider "package" of issues about the territorial sea and navigation.
proposal" by the Chairman 17 which met with different reactions. Whilst there was much sympathy for the idea of stating in the text that marine scientific research should be encouraged, there were different ideas about the specific cases in which the coastal State should be able to withhold its consent to the conduct of a marine scientific research project. To a large extent the issue is bound up with issue 2 (Status of the Economic Zone) as well as issue 7 6. Marine Scientific Research (Settlement of Disputes). Although The key issue here is the extent to some progress was made towards which marine scientific research in the reformulating Article 60 of the RSNT in economic zone and on the continental a way which would achieve consensus, shelf should be subject to the consent at no agreement was reached on a revised the coastal State. Many delegations text. consider that the explicit, prior consent of the coastal State should be given 7. Settlement of Disputes Whilst there is growing acceptance before any research can be conducted in within the Conference that provisions the economic zone or on the continenfor the compulsory settlement of tal shelf. Bearing in mind the large size 157
disputes will be needed in order to achieve a Convention which operates satisfactorily, different views are held on several issues. The two main ones are the types of procedure to be created and the extent to which the new Convention should be subject to the chosen procedures. During the detailed review of the President's text at the fifth session, Article 9 (choice of the procedure) and Article 18 (exceptions) were the subject of much discussion. There was support for the idea of giving a State upon ratification of the new Convention the right to choose from a list of procedures composed of arbitration, the International Court of Justice, a new Law of the Sea Tribunal (if created under the Convention) and certain "special procedures" akin to arbitration. But there was no agreement upon what should happen if two States involved in a dispute had made different choices upon ratification. One proposal was to make arbitration the answer; another was to take the dispute to the tribunal chosen by the "defendant" State. In the discussion of Article 18, opinions varied from allowing no exceptions from compulsory jurisdiction to making very extensive exceptions for the exercise by the coastal State of its rights under the Convention, notably rights over the economic zone. In this latter respect, the issue is linked
to that of the status of the economic zone. It was agreed that the text should be revised in the light of the discussion
and the President's new text is awaited with interest. []
Notes
1. E. Luard, "The Control of the Seabed", (London, 1974). Stevenson and Oxman, 68 Am. J. lnt'l L. 1 (1974) and 69 Am. J. Int'l L. 1 and 763 (1975). Adede, 68Am. J. lnt'IL. 31 and 798. Hardy, "Decision Making at the Law of the Sea Conference" Revue Beige de Droit International (1975), p. 442. 2. UN Doc A/CONF. 62/WP8/Parts I, II and III and see comment in 1 EnvironmentalPolicy &L. 3.
3. UN Doc A/CONF. 62/WP/Rev. 1/Parts I, II, and II and A/CONF. 62/WP9/Rev. 1 and see comment in 2 Environmental Policy & g 2. 4. UN Docs A/CONF. 62/L. 12/Rev. 1 and A/CONF. 62/SR. 71 5. UN Doc A/CONF. 62/WP9/Rev. 1. 6. UN Doc A/CONF. 62/C. 1/W.R. 1-5. 7. Other key issues discussed at the session included straits used for international navigation; delimitation of the territorial sea, economic zone and continental shelf; access to the sea by landlocked States; and vessel-sourcepollution in the economic zone. Some key issues, including the powers and functions of the International Authority, were not discussed and there are many other issues of importance to certain or all delegations. 8. UN Doc A/CONF. 62/1.16 9. General Assembly Res. 2749 (XXV). 10. UN Doc A/CONF. 62/C. 1/L. 17. 11. UN Doc A/CONF. 62/WP8/Rev. 1/Part II, para. 17. 12. ICJReports (1974) at pp. 24 and 192. 13. IUCNcirculated to delegates certain proposed changes to the RSNT (text in 2 Environmental Policy & L. 3), including Article 50 in Part II concerning fisheries. IUCN's proposal to replace the concept of the maximum sustainable yield with a reference to maintaining "the ecosystem in an optimum state..." was not discussed by the Second Committee at the fifth session; but the issue remains open for future discussion. 14. Following the reasoning of the decision of the International Court of Justice in the North Sea Continental Shelf Cases (ICJReports (1961), p. 3). 15. For fuller details (and criticism of the second criterion) see H. D. Hedberg, 10 Marine Technology Society Journal No 5, (June 1976). 16. UN Doc A/CONF. 62/L. 17, para. 39. 17. UN Doc A/CONF. 62/L. 18, para. 35.
Environmental Law Activities at UNEP /f-"~
Assembling data, exchanging ideas and developing theories about the environment will not in and of themselves benefit the world much, unless at some point, all these data are translated into action in the form of enforceable rules, asserted J. Ofori-Boateng, UNEP's Senior Program Officer on Environmental Law, in an address to the 16th Annual Conference of the International Bar Association (IBA), staged in Stockholm. UNEP and IBA Environmental Law Activities, he continued, are critical in translating scientific data and environ158
mental experience generally into rules and regulations, enforceable through the several national legal systems. Ofori-Boateng emphasized that UNEP has become very much involved in encouraging nations to utilize existing laws toward full implementation based on the scientific facts presently available. It has succeeded in conjunction with other agencies, for example, in persuading nations using the Mediterranean Sea to bind themselves legally from polluting the sea and to use it prudently according to the scientific standards agreed upon by all users, he stated. The UNEP officer added: "UNEP also plans to obtain similar agreements on the Malacca Straits, the Gulf of Guinea, the Red Sea, to
mention only a few". Current UNEP activities on Environmental Law, according to OforiBoateng, include: • Developing principles concerning the conservation and harmonious exploitation of natural resources shared by two or more states. • Encouraging states, through technical assistance, to develop their national environmental laws and environmental management. • Holding seminars in Asia, Africa and Latin America on environmental law. • Encouraging universities to include the development of environmental law in their curricula and research programs. [] DSZ
Environmental Policg and Law, 2 (1976)
Key Issues at the Fifth Session of the UN Law of the Sea Conference by D. H. ANDERSON* A. Introduction The fifth session of the Third United Nations Conference on the Law of the Sea was held at United Nations Headquarters in New York from 2 August to 17 September 1976. The work of the Conference has been well documented) Each session has had its own character. The first (December 1973) dealt with the questions of organisation such as creating committees, appointing chairmen and discussing the rules of procedure. The second s.ession in Caracas (1974) saw the adoption of the rules of procedure, the outlining of governments' positions and the taking of first steps towards identifying possible areas of consensus. At the third session (Geneva 1975) trends which had emerged with a broad measure of support on the basis of informal discussions were formulated by the Chairmen of the Committees into the informal Single Negotiating T e x t (SNT). 2 The fourth session (New York, spring 1976) was the occasion for a detailed review of the SNT, on the basis of which the Chairmen produced the Revised Single Negotiating Text (RSNT). 3 The purpose of this article is to describe the fifth session.
Organisation of the Session At the outset there was some discussion as to how the work should proceed. 4 The RSNT had been received by delegations at the very end of the fourth session and so had not been discussed. Clearly, it had to form the main basis of discussion, but equally there was a *Legal Counsellor, Foreign and Commonwealth Office, London. The views expressed herein are those of the author and have no official standing.
154
general awareness that the session could not be devoted to the same sort of detailed discussion of the RSNT which the forth session had given to the SNT. Accordingly, it was suggested that the Conference should concentrate on certain key issues to be identified by each Committee. (The one exception was the subject of the settlement of disputes where no detailed discussion had taken place on the text tabled by the President of the Conference, s This text formed the subject of a detailed review by informal meetings of the Plenary.) At the outset, the intention was to proceed from the consideration of key issues to a new phase of the work following the "formalisation" of the four parts of the negotiating text. The effect of formalisation would be to make the formal text the main working document of the Conference by decision of the Conference. This decision would remove the element of personal responsibility for the four texts from th6 President of the Conference and the Chairmen of the three main Committees; and it would clearly enhance the status of the formal text in the process of further negotiation within the Conference. For a number of reasons, the Conference did not proceed to formalise the text during the fifth session. In the first place, there were a lot of key issues. This was not surprising having regard to the breadth of the Conference's agenda. Secondly, the fifth session was held less than three months after the end of the fourth and so there had been very little time for governments to review their positions and to consult in advance with other governments (eg., ones in the same region on issues with regional significance). Thirdly, the rate of progress on one key issue was influenced by the progress or lack of progress on other
key issues, sometimes in different Committees. Most significantly the difficulties in the work of the First Committee had effect in the Second and Third Committees.
Working Methods The General Committee of the Conference met regularly at the start of each week in order to review progress and consider the way ahead. The First Committee chaired by Engo (Cameroon) held 13 formal meetings on the record but most of the Committee's time was spent in informal meetings. These took the form of a "Workshop" composed of all delegations and co-chaired by Jagota (India) and Sondaal (Netherlands). The Workshop, in turn, set up an ad hoc negotiating group of 26 members but other delegations were entitled to attend and participate. Procedures were evolved for the process of reporting from one body to the other. 6 One issue was central to the work - what should be the system for exploiting the mineral resources of the seabed beyond the limits of national jurisdiction? The Second Committee held no meetings on the record: instead, all its work was done in informal meetings. Meetings were chaired by Aguilar (Venezuela), except for a short period of absence when Njenga (Kenya) deputised for him, and took the form of meetings of the Committee itself or of a negotiating group on a particular topic to which all delegations were invited. At a later stage, the Chairman invited certain delegations to attend meetings of consultative groups on certain key issues. These included the legal status of the economic zone, the question of access to the sea by landlocked States and the definition of the outer edge of the continental margin. In addition,
Environmental Policy and Law, 2 (1976)
informal discussions were held between 10 representatives of the Group of Coastal States and 10 representatives of the Group of Landlocked and other Geographically Disadvantaged States about the access of members of the latter Group to the living resources of the economic zones of coastal States. These meetings were arranged by the two Groups (which include most but not all delegations) and chaired by Nandan (Fiji). The Third Committee (presided over by Yankov (Bulgaria)) held six meetings on the record (mainly in order to review the work of the session towards the end) as well as 28 informal meetings: 13 on the protection and preservation of the marine environment, 13 on marine scientific research and two on the transfer of technology. In addition, a number of meetings of smaller groups were held. The key issues were vessel-source pollution generally and marine scientific research in the economic zone and on the continental shelf. In addition to the work of the three main Committees, regular meetings of the Plenary in informal session were held under the chairmanship of Amerasinghe (Sir Lanka) and, in his absence, Evensen (Norway) in order to discuss, Article by Article, the President's text on the settlement of disputes. Here, the key questions were (a) what sort of institutional arrange. ments would be most appropriate?, and (b) what exceptions if any should be allowed? To sum up, a great deal of work done on many different issues using different working methods. The First Committee was rather more formal and less productive than the other organs: in particular, the Second and Third Committees were able to make some headway in small negotiating groups under the guidance of the resPective Chairmen. The areas in which future compromises may be reached were defined more clearly. But no agreements were sealed on the key issues, of which the following are perhaps the most significant. 7
B. Key Issues
1. The System for the Exploitation of the Deep Seabed This issue was at the heart of much of the discussion in the First Corn-
Environmental Policy and Law, 2 (1976)
mittee. The issue is conveniently stated in the report by the Chairman on the work of the session, s as follows: "Should the new system of exploitation provide for a guaranteed permanent role in sea-bed mineral exploitation for States Parties and private finns? Or should such a role for States Parties and private firms be considered only at the option of and subject to conditions negotiated by the Authority? Or again, should their role be conceived of as essentially temporary, to be phased out over a defined period agreed to beforehand?"
companies and State trading enterprises rather than exclusively. The US delegation put forward proposals designed to permit the Enterprise to begin mining operations at about the same time as companies or State enterprises and the Secretariat prepared a note on alternative means of financing the Enterprise. l° In his report on the fifth session, the Chairman of the First Committee noted that developing countries now generally accept that, as well as the Enterprise, other entities such as companies may also participate in mining operations in a form of association with the Authority ; and that there
Law of Sea Conference opens Fifth Session, agrees that main committee should select key issues for negotiation.
In the early days of discussion, notably in the Sea-Bed Committee, many developed countries favoured a system whereby exploitation would be carried out. by companies or State trading enterprises under a licensing system administered by the future International Authority. Developing countries favoured a different system whereby the International Authority would have an arm to be called the Enterprise which alone would conduct mining operations. In this way, it was felt that the "common heritage of mankind" (a concept put forward in the General Assembly's Declaration of Principles in 19709 ) would be exploited by an entity which in a sense represented mankind as a whole. In the course of discussions, developed countries have come to accept that there should be an Enterprise and that it should conduct mining operations, but only on the basis that it would operate in parallel with
exists a common interest in encouraging rapid and efficient seabed mining operations in order to increase supplies of raw materials, under a system which would protect land-based producers. Much work remains to be done on this issue in order to work out the respective roles of the Enterprise and other entities and their relationship with the Authority in each case. No doubt, discussions will take place before the next session with a view to reaching a consensus at an early stage of the sixth session. There remains the possibility of legislation on the subject of deep sea mining being enacted by the United States Congress and this is clearly a factor to be weighed in any assessment of future prospects at that session.
2. Status of the Economic Zone One of the main contributions of the current Conference to the development of international law is the elaboration of 155
the concept of the economic zone. At the fifth session, discussions were held as to the precise extent of the rights and duties of the coastal State, as well as those of third States, in the zone. The rights of the former are set out most prominently in Article 44 of Part II of the RSNT, whilst those of the latter form the subject of its Article 46. Also relevant are its Articles 47 (resolution o f conflicts regarding the attribution of rights in the zone) and 75 (the definition of the term "high seas"). As well as discussing possible adjustments to Articles 44 and 46, the Second Committee also addressed the underlying issue of the status of the waters. The question was were the waters to have the residual status of high seas (ie., high seas minus the total of the rights and jurisdiction accorded to the coastal State under the Convention), or were they to be recognised as being sui generis? The Chairman of the Com-
navigation, overflight and cable and pipe4aying, as well as other uses, would continue to have the character of "high seas" freedoms and uses, in the sense understood in international practice. In informal discussions some progress was made towards finding solutions which may prove acceptable to those delegations who consider the waters of the economic zone to be sui generis and which at the same time could allay the genuine preoccupations of other delegations about navigational and other uses of the vast areas of sea in question.
3. Access to Fishing Grounds Under the scheme of the RSNT, the coastal State is entitled to establish beyond its territorial sea an economic zone extending to a maximum of 200 miles from the baselines from which the territorial sea is measured. In that zone, the coastal State would be entitled, subject to some qualifications, to
Former whaleship on a mission o f peace.
mittee in the introduction to his RSNT H had indicated that in his opinion the waters were suigeneris and in this he could cite the decision of the International Court of Justice in the Fisheries Jurisdiction Cases 12 to the effect that under present law a fisheries zone is a tertium genus between the territorial sea and the high seas. The principal concerns of those delegations which supported the view of "high seas minus" were two-fold. Firstly, there was the danger of "creeping jurisdiction" on the part of the coastal State over the zone, to the detriment of the rights of third States. A second concern was to make clear that the freedoms of 156
harvest as much fish as it has capacity to harvest, subject to not exceeding the maximum sustainable yield. 13 The terms of the RSNT reflect the considerable changes in State practice (and therefore international law) which have been witnessed in recent times. However, groups of States - notably those which are landlocked and those which consider themselves to be "geographically disadvantaged" clearly do not benefit directly from a law based on broad limits. Accordingly, the members of the group of "Landlocked and Geographically Disadvantaged States" at the Conference pressed for improvements in the Articles on fishing.
Detailed discussions were held in the informal ad hoc Group of 21 (made up of 10 Coastal States and 10 Landlocked and Geographically Disadvantaged States under the chairmanship of Nandan) upon the possibility of making changes in the text of Articles 58 to 60 benefiting developing States which are either landlocked or unable to extend their limits on account of the proximity of neighbours. (The RSNT already makes a distinction between developing and developed States on the rationale that the former need protein supplies in order to further their development.) Discussions in the Group of 21 were inconclusive but some new ideas were considered. The Second Committee, as such, made little progress on this issue, however.
4. Continental Margin A considerable number of States in the world have already exercised sovereign rights over areas of seabed which, in geological terms, are the continental shelf, continental slope and continental rise. These rights are based to a large extent upon customary international law, including the concept of jurisdiction over the natural prolongation of the land mass of the coastal State into and under the sea) 4 At the Conference, delegations from States which have a limited or no continental shelf have expressed concern about the possibility of encroachment by other States upon the deep seabed. During the fourth session, proposals were put forward by the "broad margin" States which were designed to clarify and complement the definition of the "legal" continental shelf contained in Article 62 of the SNT (now Article 64 of the RSNT) where it extends beyond the 200-mile line. These proposals for additional paragraphs took the foot of the continental slope (a major natural feature in the world) as a key element and contained two additional criteria for fixing the outer limit beyond 200 miles, is The first was a maximum distance of 60 nautical miles beyond the foot of the continental slope. (In many parts of the world, the continental rise extends more than that distance.) The second criterion would be to delimit the continental margin beyond 200 miles by reference to the thickness of the sedimentary rocks forming the rise, taken in relation to the distance from the foot of the continental slope. In general terms, this criterion would create a sort of"sliding scale", bearing
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in mind that the rise tends to taper off from the foot of the slope into the deep ocean floor. In his commentary to his RSNT, 3 the Chairman of the Second Committee called for further examination of these proposals at expert level. Lengthy discussions of them accordingly took place during the fifth session, together with other proposals whereby the coastal State would make contributions of revenue (or product) from the exploitation of the seabed and subsoil under its jurisdiction beyond the 200-mile line. In his Report on the session, 16 the Chairmen of the Second Committee expressed the view that the recognition of rights beyond 200 miles was one of the main elements of the "package deal".
coastal State rather too greatly. Other delegations considered that such a prohibition was justified in the general interest because national regulations on the design, construction, equipment or manning of foreign ships in transit through the territorial sea could lead to a chaotic situation in which ships were subject to different standards in different parts of the world to the detriment of world trade. After long discussions, a possible way of making further progress in the Third Committee was identified whereby the issue would
of the areas in question, other delegations would confine the need for consent, whether explicit or tacit, to that type of marine scientific research which is directed towards the discovery and evaluation of valuable economic resources such as fish and oil, a solution somewhat similar to that contained in Article 5 of the Convention on the Continental Shelf of 1958. At the fifth session, informal consultations were held on this issue, taking Article 60 of the Third Committee's RSNT as the starting point and later a "test
5. Vessel Source Pollution At the fifth session, the members of the Third Committee concerned with the preservation of the marine environment and the prevention of pollution concentrated on this issue. Discussion centred largely on the rules for vessels in the territorial sea. A possible tension was identified betweefi Article 20(2) of Part II of the RSNT and Article 21(3) of Part III. Article 20 of Part II concerns the legislative powers of coastal States. Its paragraph 1 lists eight subjects on which the coastal State's power to make laws relating to foreign vessels on innocent passage through the territorial sea is recognised. Paragraph 2 contains the qualification that: "Such laws ... shall not apply to or affect the design, construction, manning or equipment of foreign ships or matters regulated by generally accepted international rules unless specifically authorized by such rules." Article 21(3) of Part III reads: " Coastal States may, in the exercise of their sovereignty within their territorial sea, establish national laws ... for the prevention, reduction and control of marine pollution from vessels. In establishing such laws .... coastal States shall ... not interrupt or hamper the innocent passage of foreign vessels." Certain delegations considered that the prohibition contained in Article 20(2) of the Articles on the right of coastal States to legislate for foreign ships in innocent passage through the territorial sea would have the effect of circumscribing the sovereignty of the
Environmental Policy and Law, 2 (1976)
Law of Sea Conference ends Fifth Session. Next Session in New York beginning23 May 1977.
be considered in two parts. The first would concern the design, construction, equipment and manning of ships and the second "matters regulated by generally accepted international rules". Thereafter, there would, of course, have to be coordination with the Second Committee where the subject is dealt with primarily and then as part of a wider "package" of issues about the territorial sea and navigation.
proposal" by the Chairman 17 which met with different reactions. Whilst there was much sympathy for the idea of stating in the text that marine scientific research should be encouraged, there were different ideas about the specific cases in which the coastal State should be able to withhold its consent to the conduct of a marine scientific research project. To a large extent the issue is bound up with issue 2 (Status of the Economic Zone) as well as issue 7 6. Marine Scientific Research (Settlement of Disputes). Although The key issue here is the extent to some progress was made towards which marine scientific research in the reformulating Article 60 of the RSNT in economic zone and on the continental a way which would achieve consensus, shelf should be subject to the consent at no agreement was reached on a revised the coastal State. Many delegations text. consider that the explicit, prior consent of the coastal State should be given 7. Settlement of Disputes Whilst there is growing acceptance before any research can be conducted in within the Conference that provisions the economic zone or on the continenfor the compulsory settlement of tal shelf. Bearing in mind the large size 157
disputes will be needed in order to achieve a Convention which operates satisfactorily, different views are held on several issues. The two main ones are the types of procedure to be created and the extent to which the new Convention should be subject to the chosen procedures. During the detailed review of the President's text at the fifth session, Article 9 (choice of the procedure) and Article 18 (exceptions) were the subject of much discussion. There was support for the idea of giving a State upon ratification of the new Convention the right to choose from a list of procedures composed of arbitration, the International Court of Justice, a new Law of the Sea Tribunal (if created under the Convention) and certain "special procedures" akin to arbitration. But there was no agreement upon what should happen if two States involved in a dispute had made different choices upon ratification. One proposal was to make arbitration the answer; another was to take the dispute to the tribunal chosen by the "defendant" State. In the discussion of Article 18, opinions varied from allowing no exceptions from compulsory jurisdiction to making very extensive exceptions for the exercise by the coastal State of its rights under the Convention, notably rights over the economic zone. In this latter respect, the issue is linked
to that of the status of the economic zone. It was agreed that the text should be revised in the light of the discussion
and the President's new text is awaited with interest. []
Notes
1. E. Luard, "The Control of the Seabed", (London, 1974). Stevenson and Oxman, 68 Am. J. lnt'l L. 1 (1974) and 69 Am. J. Int'l L. 1 and 763 (1975). Adede, 68Am. J. lnt'IL. 31 and 798. Hardy, "Decision Making at the Law of the Sea Conference" Revue Beige de Droit International (1975), p. 442. 2. UN Doc A/CONF. 62/WP8/Parts I, II and III and see comment in 1 EnvironmentalPolicy &L. 3.
3. UN Doc A/CONF. 62/WP/Rev. 1/Parts I, II, and II and A/CONF. 62/WP9/Rev. 1 and see comment in 2 Environmental Policy & g 2. 4. UN Docs A/CONF. 62/L. 12/Rev. 1 and A/CONF. 62/SR. 71 5. UN Doc A/CONF. 62/WP9/Rev. 1. 6. UN Doc A/CONF. 62/C. 1/W.R. 1-5. 7. Other key issues discussed at the session included straits used for international navigation; delimitation of the territorial sea, economic zone and continental shelf; access to the sea by landlocked States; and vessel-sourcepollution in the economic zone. Some key issues, including the powers and functions of the International Authority, were not discussed and there are many other issues of importance to certain or all delegations. 8. UN Doc A/CONF. 62/1.16 9. General Assembly Res. 2749 (XXV). 10. UN Doc A/CONF. 62/C. 1/L. 17. 11. UN Doc A/CONF. 62/WP8/Rev. 1/Part II, para. 17. 12. ICJReports (1974) at pp. 24 and 192. 13. IUCNcirculated to delegates certain proposed changes to the RSNT (text in 2 Environmental Policy & L. 3), including Article 50 in Part II concerning fisheries. IUCN's proposal to replace the concept of the maximum sustainable yield with a reference to maintaining "the ecosystem in an optimum state..." was not discussed by the Second Committee at the fifth session; but the issue remains open for future discussion. 14. Following the reasoning of the decision of the International Court of Justice in the North Sea Continental Shelf Cases (ICJReports (1961), p. 3). 15. For fuller details (and criticism of the second criterion) see H. D. Hedberg, 10 Marine Technology Society Journal No 5, (June 1976). 16. UN Doc A/CONF. 62/L. 17, para. 39. 17. UN Doc A/CONF. 62/L. 18, para. 35.
Environmental Law Activities at UNEP /f-"~
Assembling data, exchanging ideas and developing theories about the environment will not in and of themselves benefit the world much, unless at some point, all these data are translated into action in the form of enforceable rules, asserted J. Ofori-Boateng, UNEP's Senior Program Officer on Environmental Law, in an address to the 16th Annual Conference of the International Bar Association (IBA), staged in Stockholm. UNEP and IBA Environmental Law Activities, he continued, are critical in translating scientific data and environ158
mental experience generally into rules and regulations, enforceable through the several national legal systems. Ofori-Boateng emphasized that UNEP has become very much involved in encouraging nations to utilize existing laws toward full implementation based on the scientific facts presently available. It has succeeded in conjunction with other agencies, for example, in persuading nations using the Mediterranean Sea to bind themselves legally from polluting the sea and to use it prudently according to the scientific standards agreed upon by all users, he stated. The UNEP officer added: "UNEP also plans to obtain similar agreements on the Malacca Straits, the Gulf of Guinea, the Red Sea, to
mention only a few". Current UNEP activities on Environmental Law, according to OforiBoateng, include: • Developing principles concerning the conservation and harmonious exploitation of natural resources shared by two or more states. • Encouraging states, through technical assistance, to develop their national environmental laws and environmental management. • Holding seminars in Asia, Africa and Latin America on environmental law. • Encouraging universities to include the development of environmental law in their curricula and research programs. [] DSZ
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