The 1977 session of the United Nations law of the sea conference

to provide safeguards both against an abuse of power by a coastal State and against an abuse of legal process by other States. Whether this compromise will be accepted by all concerned remains to be seen. Among other provisions of the dispute settlement part (Part XV of the ICNT) which may be of interest to environmentalists, one may mention Article 290, which empowered an international tribunal, upon request of a party to a dispute, to prescribe provisional measures "to prevent serious harm to the marine environment". While there were some objections to this provision on the ground that it was irrelevant as a State could only bring a case when its own rights were endangered, the provision was retained in the composite text. As was noted before, throughout the various sessions of the Conference, several States - including the Soviet Union and France - have insisted on

the retention of the option to refer a dispute to a special arbitral procedure. Despite strong opposition by some coastal developing countries, the relevant provisions were retained in the composite text (Annex VII). Among the special choices available to those who have opted for this procedure is the submission of a dispute relating to the "protection and preservation of the marine environment" to a tribunal selected from a list of experts drawn up by the United Nations Environment Programme. Similarly, a dispute relating to "navigation, including vessel source pollution" may be submitted to a tribunal selected from a panel of experts drawn up by the InterGovernmental Maritime Consultative Organization. Though there are still some difficulties about each part of the composite text, those relating to the dispute settlement part can be easily solved. The final success of the Conference will

depend on solving the intractable issues involved in international regulation of seabed mining activities. Ifthat problem is solved, we might have for the time not only a comprehensive law of the sea code but also an equally comprehensive code for the settlement of law of the sea disputes. Even if the fears of pessimists should materialize and no convention should come out of the Conference, the provisions on dispute settlement developed here can serve as a model for future international agreements. []

1 A/CONF.62/WP.9,21 July 1975. 2 A/CONF.62fWP.10 (hereafter cited as ICNT). 3 ICNT, Art. 287, para. 5 4 ICNT, Annex V, Arts. 4 and 37. 5 ICNT, Art. 191. 6 ICNT, Art. 187. 7 ICNT, Art. 296, paras. 2(e) and (b). 8 ICNT, Art. 296 (2) (d).

The 1977 Session of the United Nations Law of the Sea Conference By C A R L A U G U S T F L E I S C H E R *

Establishment of an Informal Composite Negotiating Text (ICNT) The preparation of the Informal Composite Negotiating Text may be regarded as the main task and the main achievement of the 6th Session of the UN Law of the Sea Conference, which took place in New York from 23 May to 15 July 1977. The earlier Revised Single Negotiating Text (RSNT)was divided in four; Parts I to III corresponding with the three Committees, Part IV concerning settlement of disputes worked out in plenary. After the 1977 Session we have now one single text, which may form the basis of a comprehensive Law of the Sea (LOS) Convention. The establish*Professor at the University of Oslo; Special Consultant to the Norwegian Ministry of Foreign Affairsin Matters of International Law; Member of the NorwegianDelegation to the Law of the Sea Conference. The views presented are those of the author and not necessarily those of the Norwegiangovernment or the delegation to the Law of the Sea Conference. 100

ment of the ICNT implies that the Conference has taken yet another step forwards, in order to attain its object in the form of a general convention which regulates the use of the seas. By employing the term "achievement" in regard to the 6th Session and the ICNT I refer not only to the amalgamation of four texts into one - which could have been done by the use of the so-called "paper-clip method". I am also thinking, of the negotiations which were carried out at the Session, and which led to important changes in the material already available. In particular, reference should here be made to the work carried out in the First Committee. Progress could also be registered on certain other issues, such as the use of the term "high seas". This also contributes to the fact that we have now a text which is closer to a possible compromise than the Revised Single Negotiating Text of 1976. As it was believed that the most serious differences between groups of States at the Conference were to be found

within the competence of the First Committee, concerning the seabed and subsoil beyond the limits of national jurisdiction (i.e., beyond the outer limit of the continental shelf), it was agreed that the three first weeks of the Session should be devoted mainly to the work of the First Committee. This may also seem to have been the right selection of priorities at the present stage of negotiations. The right to the deep seabed has been the object of sharply conflicting views during the Conference, in particular between the group of developing countries and certain industrialized States; and it was here possible to achieve a certain degree of progress through extensive discussions of this matter, and by the production of new texts which try to accommodate the views of the different parties as far as possible. On the other hand, this choice meant that very little time was left for the treatment of other matters. There has been no general discussion and revision

Environmental Policy and Law, 3 (1977)

on all the items which fall under the competence of the other Committees. Even if a seven week session may seem to represent a lot of time, there were only some two to three weeks left for substantive discussions concerning Second and Third Committee matters. The rest was taken up by the First Committee, in the beginning; and by the preparation of the composite text, at the end. And while it may be true that the subject-matters of the First Committee have given rise to the most pronounced disagreement in the later stages of the Conference, it may be that the obstacles presented by the areas of disagreement within the other Committees are still such that they may prevent a convention from being adopted by the sufficient (two-thirds) majority. One may, for example, here mention the questions concerning the right of landlocked and geographically disadvantaged states to participate in the exploitation of the natural resources of the exclusive economic zone. Excluding annexes and a transitional provision (on the resources of a territory whose people have not attained full independence or some other self-governing status) the ICNT consists of 303 articles. In addition to a preamble there are 16 Parts, namely: Part I. Use of terms Part II. Territorial sea and contiguous zone Part III. Straits used for international navigation Part 1V. Archipelagic states Part V. Exclusive economic zone Part VI. Continental shelf Part VII. High seas Part VIII. Regime of islands Part IX. Enclosed or semi-enclosed seas Part X. Right of access of landlocked states to and from the sea and freedom of transit Part XI. The area Part XII. Protection and preservation of the marine environment Part XIII. Marine scientific research Part XIV. Development and transfer of marine technology Part XV. Settlement of disputes Part XVI. Final clauses As the text is still called an "informal" one, and as "negotiating" (as opposed to "negotiated"), it has, in principle, only the status of a document to facilitate the work of the Conference. It has been worked out by individual persons, under the leadership of the President. It Environmental Policy and Law, 3 (1977)

is not binding for any delegation, nor does it purport to reflect the rules of general international law or the views thereon presented at the Conference. In the explanatory memorandum submitted by the President on 22 July 1977 (Doc. A/Conf. 62/WP.10/Add. 1) this has been carefully spelled out: The Conference also agreed that the composite negotiating text would be informal in character and would have the same status as the informal single negotiating text and the revised single negotiating text and would, therefore, serve purely as a procedural device and only provide a basis for negotiation without affecting the right of any delegation to suggest revisions in the search for a consensus. It would be relevant to recall here the observation made in my proposals regarding the preparation of this text that it would not have the character and status of the text which was prepared by the International Law Commission and presented to the Geneva Conference of 1958 and would, therefore, not have the status of a basic proposal that would stand unless rejected by the requisite majority. It may be said that this somewhat limited status of the ICNT is the only possible explanation as to how the Conference has at all succeeded in arriving at one single text at the present stage. Time has not been considered right for establishing a text by the method of voting, and the Conference is still basing itself on the so-called principle of consensus. But as there is, obviously, no consensus on a large number of issues of extreme importance, this means that the possibility of establishing one single text which expresses the common view of States or delegations has been excluded. What is left, and what has been done in practice, is to entrust the task of preparing texts to individual chairmen or to a collective body under the leadership of the President; but then as working documents or as a "procedural device". Indeed, under the preparation of the ICNTone did not depart from the earlier responsibility, or at least here the primary responsibility, of the three individual chairmen. Concerning the method for working out the new composite text the explanatory memorandum states: It was understood that while the President would be free to proffer his own suggestions on the proposed provisions of any part of the composite text, in regard to any matter which fell within the exclusive domain of

a particular chairman that chairman's judgement as to the precise formulation to be incorporated in the text should prevail. The adoption of this procedure was a recognition of the fact that each chairman was in the best position to determine, having regard to the negotiations that had taken place, the extent to which changes in his revised single negotiating text should be made in order to reflect the progress achieved in the course of negotiations where, in the chairman's opinion, such progress justified changes in the revised single negotiating text and also to decide, even where the negotiations had not resulted in substantial agreement, whether such progress as had been achieved warranted changes which would be conducive to the ultimate attainment of general agreement. It was also understood that so far as issues on which negotiations had not taken place were concerned, there should be no departure from the revised single negotiating text unless it was of a consequential character. This understanding was scrupulously observed in the course of the preparation of the informal composite negotiating text. There is no question, therefore, of joint responsibility being assumed for the provisions of the text by the President and the chairmen of the three Main Committees. The chairman of each Committee bears the full responsibility for those provisions of the informal composite negotiating text which are the exclusive and special concern of this Committee. This is not an enunciation of a new doctrine of collective irresponsibility. Experience has, however, demonstrated that these modest and, in principle, correct views concerning the status of the texts are not adhered to by States in practice; or, at least, not by States that may find it to their advantage to advocate the UNCLOS texts as evidence concerning the existing rules of general international law. In particular, this has been the case for what may be regarded as one of the major elements of the texts and of the possible conventional compromise, namely the concept of the exclusive economic zone. This concept has already been adopted by a large number of States, which have established 200-mile zones with effect for other States. And the 200-mile zone may today be regarded as part of general international law; on the basis of customary 101

law brought about by States which have used the UNCLOS texts as their main guideline. Even in such a specific matter as the delimitation of the continental shelf between opposite and adjacent States, the 1976 RSNT was invoked as an argument by France before a Court of Arbitration which was set up to decide the delimitation on the continental shelf in a certain area between France and the United Kingdom, and which rendered its decision on 30 June 1977. Whatever the fate of the Conference as such, and whether there is to be a general LOS Convention or not, it must be expected that the text wilt continue to play such a role. It should be added, however, that there is probably here a certain difference between the creation of a new general regime of coastal jurisdiction through State practice, such as the exclusive economic zone (and thereby 200-mile limits for fisheries etc., earlier known only for a few countries, such as Chile, Peru and Equador), and, on the other hand, the regulation of specific "details", such as delimitation between adjacent and opposite States. As for the arbitration between the United Kingdom and France, the Court did not rely on the LOS proposals, but on the 1958 Geneva Convention and on customary law deriving from other sources. The specific French argument that later developments had rendered the 1958 Convention "obsolete", was rejected. It may perhaps be noted that the value of the LOS texts as arguments in relation to contemporary law will probably be greater in a period of legal transition, when it may be expected that the proposed texts present us with evidence of an emerging consensus at the UNCLOS, than at a possible later stage when it may become apparent that the texts will never be adopted as a binding Convention. If there is, on the other hand, indeed a Convention, the provisions thereof will, of course, take the place of the preparatory texts. First C o m m i t t e e -

member of the eastern or the western block, or by their different stages of industrial development. It may seem somewhat surprising that the recent trends towards a "new economical world order" has had relatively little impact on the work which is being done by the UNCLOS, and which concerns the distribution of ocean resources. The differences in interests between coastal and non-coastal States, between States with extensive shipping interests and those which do not have such interests, etc., seem to play a far larger role in most issues than the interests of developed versus developing nations. Here the First Committee stands out as the one and the important exception.

In this Committee the main pattern is not connected to those of maritime interests in particular, but to the general differences in interests between developing countries and those which possess the most advanced technical and economical means to utilize the riches of the deep seabed. In the First Committee the fundamental economical and ideological differences concerning the distribution of wealth and resources in today's world and in the future are at the very surface. Even if it would be an oversimplification to say that this latter difference of interests is of no significance whatever in other Committees, it may fairly be said that it is only within the First Committee that one has had the

the International

Seabed Area ("the Area") In general, the work of the UNCLOS has been removed from those patterns of conflict which are otherwise to be found in the intercourse between States at most levels, in particular within the United Nations. In most instances the positions taken at the LOS Conference may be explained with reference to the maritime interests and the geogral~hical position of States, not by their being 102

These birds are a few o f the many victims of pollution by oil in the North Sea.

Photo: Dr. H, Ecke.

Environmental Policy and Law, 3 (1977)

full impact of this being a Conference related to the distribution or resources and under the auspices of the United Nations. It may be a question worth considering if this close relationship to conflicts - and, it must be admitted, to injustices - otherwise known from the work of the UN and from elsewhere, has in itself contributed to hardening the positions taken by different parties to the discussions in the First Committee. Be that as it may, it must be observed that two fundamentally different views are here in conflict, which may both be supported by important legal and political considerations: 1. On the one side it may be argued that according to traditional international law the seabed beyond the limits of national jurisdiction is still a part of the high seas. The general principles concerning the freedom of the high seas should be applicable. This leads to the conclusion that any State having the necessary technology may permit its nationals to utilize the resources available, just as every State has the right to allow its nationals to carry out fishing on the high seas. The practical result of this view will be that a few industrialized nations, which have the most advanced technology and which are also capable of financing the large investments called for, will be able to take up deep seabed mining, in particular the extraction of manganese nodules, on the basis of their own unilateral legislation. Such legislation is indeed under preparation in the United States. It may be argued that there is no compelling reason why a State should here, as opposed to fishing and other traditional and generally accepted uses of the high seas, refrain from using a freedom which derives from general international law; and, further, that there is no compelling reason why it should allow the benefits obtained from its own investments and its own technological development to be exploited by others, e.g. by the transfer of technology to an international organization. At least, it may be said, any measure of self-restraint or the transfer of benefits from the technologically most advanced nations must demand a quid pro quo in the form of concessions given by the other parties to a possible LOS Convention. 2. From the other side it may be said, and prima facie with the same validity, that the resources of the deep seabed are "the common heritage of mankind". This formula was adopted by the Gen-

eral Assembly in its resolution no. 2749 of one of the UNCLOS vice-presidents, (XXV) of 17 December 1970. Such reMr. Jens Evensen from Norway. It sources should be subject to developseemed that the proposals which were ment and exploitation for the common here worked out by Mr. Evensen on the benefit, and in particular for the benefit background of the discussions, and of the developing nations. The exploirevised during the session, might comtation should take place without priority mand sufficient support both from for the States which at the moment developed and developing nations, and possess the most advanced technology; that they might form the basis of a posif those States should be given a priority sible compromise solution. Still, there because of their own technical advanceare issues that remain unsolved. Accordments, it would imply a sort of neo- " ing to the President's explanatory memocolonisation. The present unequality in randum on the preparation of the Comthe distribution of wealth and resources posite Negotiating Text, the Chairman would be increased and made to apply of the First Committee, Mr. Paul Engo even in this yet unexploited area. of Cameroon (in which capacity he was It has been obvious from the outset the one, whose "judgment as to the preof UNCLOS negotiations that it is not cise formulation to be incorporated in possible to find a formula which reconthe text" should prevail) had stated the ciles both these diametrically opposite following: views. The only way to reach the aim While in the view of the Chairman of of a conventional regime, as opposed to the First Committee the new text conflicts and to the application of a "free represents a considerable advance on for all" regime with reference to tradithe stages of negotiation reflected by tional principles on the freedom of the the revised single negotiating text high seas, is to formulate a solution formulations, much work remains to which is "in-between" the positions of be done on the corresponding proprinciple; a compromise. Such a comvisions of the composite text. promise is envisaged in the so-called On the part of the US criticism has parallel system; whereby some areas of been voiced rather strongly against the the seabed would stand open for exploi- ICNT, and specifically against its provitation by individual States or by comsions concerning the deep seabed. The panies being licensed by such States, reason for this criticism, which was and some areas would be reserved for • accompanied by a statement that the the exploitation under an International US had to consider its continued particiAuthority and through an International pation at the LOS Conference, was to Enterprise. At the same time, it may be be found in certain changes which had been made during the preparation of the advanced that any such compromise ICNT; as compared to the proposals would entail a curtailment of the principle of "common heritage of mankind"; which had been presented, and received a large degree of support, during the as it would mean that a certain area of session, in the discussions under the the deep seabed would be detracted leadership of Mr. Evensen. In a statefrom the system of a purely internament issued after the Conference the tional utilization and left to the exploileader of the US delegation, Mr. Elliot tation by certain industrialized States Richardson, expressed himself as follows: for their own benefit or by companies At the same time it (i.e. the ICNT) licensed by such States. On the other substantially sets back prospects for hand again, this is a necessary prereqagreement on an international regime uisite for a solution which may also be. for the conduct of seabed mining. accepted by all industrialized States, Both the substance of the text on and which would give the expected this issue and the lack of fair and return on capital already invested for open processes in its final preparation the purpose of deep sea mining. require me to recommend that the It should be added that this is only a United States undertake a most serivery brief outline of the fundamental ous and searching review of both the difficulties encountered in the First substance and procedures of the ConCommittee, and that the matter is far ference... more complex. And the positions taken Regrettably, however, the new "comby individual delegations may depend posite text concerning the system of on ideological as well as on economical exploitation and governance of the considerations. What happend during the sixth session deep seabed area (Part XI)" is now was that a special Chairman's Negotiating fundamentally unacceptable. It deviates markedly from the proposed Group was set up, under the leadership

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103

Delegates to the Law of the Sea meeting

compromise text which had been prepared on the basis of full, fair and open discussion under Minister Evens, !eadership... Amung the serious points of substance in the latest deep seabeds text and the system it would define, are the following: - It would not give the reasonable assurance of access that is necessary if we and others could be expected to help finance the enterprise and to accept a "parallel system" as a basis of compromise... - It fails to set clear and reasonable limits on the financial burdens to be borne by contractors; indeed, it simply combines a wide range of alternative financial burdens, as if such a combination could be a compromise - when, in fact it is likely to prove a compound burden sufficient to stifle seabed development. - It would set an articial limit on seabed production of minerals from nodules - which is not only objectionable in principle; it is also far more stringent than would be necessary to protect specific developing country producers from possible adverse effects, and is incompatible with the basic economic interests of a developing world generally... - It would fail adequately to protect minority interests in its system of governance and would, accordingly, threaten to allow the abuse of power by an anomalous "majority"... - I t would seriously prejudice the likely long-term character of the international regime, by requiring 104

Photo: Max Machot

that - if agreement to the contrary is not reached within 25 years - the regime shall automatically be converted into a "unitary" system, ruling out direct access by contractors, except to the extent that the Authority might seek their participation in joint ventures with it. This is not the occasion to enter into a detailed examination of those articles which must still be regarded as controversial, nor to pass judgment upon the text and its preparation. It should, however, be observed that, according to the terms accepted by delegations for the preparation of the ICNT, and the responsibility given to the President and to the individual Chairmen, it was well within their competence to make such changes as they might consider appropriate in order to facilitate the aim of general acceptance. The contentions advanced on behalf of the US Government must be read in this light, to the effect that the proposals referred to are not acceptable to that Government, and further that this will increase the likelihood of unilateral action on the part of the United States. It seems that the US Government at present has decided to proceed with the preparation for unilateral legislation. But it is still uncertain when and in what form an act will be passed by the Congress; as is the question of which effect this legislation will have on the Conference and on the prospects for a future LOS Convention. As the US Government, and some of its companies, may here occupy a key position, it may also be of interest to note that some comments regarding this

issue were made by Mr. Richardson in October this year. Inter alia it was said: The legislative process is unlikely to be completed, however, before the end of the next session of the Conference. The Carter administration believes that legislation will be needed with or without a treaty and that Congress should continue to move legislation forward. What effect the final bill will have on actual mining operations will probably depend on whether the companies feel sufficiently secure to make the required investment. I think legislation should pose no impediment to the future negotiations, especially if it is designed to be interim in nature. We would, of course, want to protect US companies that may engage in mining following the enactment of legislation by requiring the inclusion of an appropriate "grandfather clause" in any treaty. As to the purport of such a clause it was stated that it would: protect the value of the investment made prior to the conclusion of an international agreement. It would guarantee tenure by not imposing economic conditions more burdensome than the companies undertook when they first made their investments. Here it must be added that there is a certain distinction between protecting "the value", e.g. by compensation, and being bound to retain the same rules and conditions as existed prior to the LOS Treaty. These problems of earlier investments are not unknown as a general impediment to environment law. The question of a clause to protect such investments, and the contents thereof, may well prove to be an additional complication in the efforts to reach agreement. Second C o m m i t t e e - Territorial Sea, E c o n o m i c Zone, Continental Shelf, High Seas and other Matters

As national interests have been more predominant at the LOS Conference than the more general and idealistic ones, including those of the environment, the Conference has never appeared as an unambiguous effort towards the general aim of better environmental protection. When the new rules which are emerging from its discussions do, nevertheless, present us with a more satisfactory and more efficient system for resource protection and management, it may be looked upon as a by-product of what

Environmental Policy and Law, 3 (1977)

has been found desirable from the view- able such discussions were carried out in special limited negotiating groups set up point of national interests. This seems for further consideration and solution to be the major cause, rather than the of certain questions which had presented direct pursuance of environmental prothemselves as major obstacles at earlier tection as the primary aim. Or, what is sessions, including such questions as the perhaps more accurate, a better system rights of landlocked and geographically of environment and resource protection is being proposed, because such a protec- disadvantaged States, delimitation between adjacent and opposite States, tion is deemed to be in the national etc. In general, it may be said that the interest of a large number of States, solutions found in the RSNT of 1976 whose positions have been decisive both for the formulation of the LOS text and have been retained. As might have been expected, the for the development of State practice. sixth session witnessed a consolidation In particular, this mechanism has been of coastal States' views regarding their evident in the Second Committee, with rights to an exclusive economic zone, its major impact on the formation of customary law, through the development and as to whether and to what extent of the exclusive economic zone concept. other States should be entitled to partiOne may assert that this development cipate in the exploration of the natural resources of the zone. In the course of in what States regard as being in their predominant national interest is in itself 1976 the system of an exclusive economic zone, with coastal State jurisdicevidence of a greater awareness of the tion over the fisheries, had been estabneed for environmental protection lished as a fact by several States, includamong nations. There can be no doubt ing the members of the European Comthat the establishment and recognition munities and the US. This has implied of 200 mile zones represent a solution a certain shift in the bargaining position which is preferable to the traditional between coastal States and others, and freedom of the high seas beyond a limit of, say, 12 nautical miles. This concerns in particular vis/l-vis the group of landlocked and geographically disadvantaged the protection of fishery resources, as States (GDS). well as the right to control and to preThere was earlier a question of recogvent pollution. Before the advent of the nition of the right to an exclusive ecoeconomical zone, and unless otherwise provided for in an international conven- nomic zone, and of permitting the intertion, States often regarded themselves as ested coastal States to establish such zones, which were regarded as not probeing allowed under general internavided for by contemporary international tional law to permit their nationals and law. In the present situation it is no their vessels to engage in dumping and longer realistic to regard such zones as in other forms of pollution of the seas; unlawful and to expect that a coastal as long as the activity took place beyond the limit of the territorial sea (or possibly, State will not extend its limits in the the 12 mile fishery zone)of other States. face of protests from other States. The Economic zones of 200 miles will imply a drastic change in this rather deplorable situation. It may be said that most parts of the traditional international law of the sea, and most of the controversial issues at the LOS Conference, fall under the competence of Committee Two. While Committee One has been dealing with the seabed and subsoil beyond the limits of the continental shelf, and Committee Three has been charged with specific issues concerning the preservation of the marine environment and scientific research, the rest is found within the ambit of Committee Two: the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone, the high seas. Only a fraction of these issues were subject to any extensive discussions at the sixth session. The First Committee, Law of the Sea For the larger part of the time avail-

Environmental Policy and Law, 3 (1977)

group of landlocked and GDS are therefore not in the same position to claim rights of participation in return for their acceptance of enlarged coastal zones. Negotiations were nevertheless carried out with a view to finding solutions other than the ones provided for in the RSNT. Certain ideas were suggested by the coastal States, but the RSNT text has been retained. According to explanatory memorandum: A possible compromise appeared to be within reach but could not be finally negotiated for want of time. In these circumstances, the Group of Land-locked and Geographically Disadvantaged States expressed a preference for the retention of the existing articles in the revised single negotiating text while expressing their readiness to negotiate further on this question. Consequently, although there was a possibility of introducing article 71 a related provision agreed upon by the interested delegations and of amending article 72 in regard to restrictions on the transfer of rights, articles 58 and 59 of the revised single negotiating text were retained, unchanged, as articles 69 and 70 of the informal composite negotiating text. Another controversial issue, where some progress was made, was that of the status of the exclusive economic zone; and, more particularly, the relationship between the zone and the term "high seas". A traditional 12 mile contiguous zone for jurisdiction in fiscal matters e t c . beyond the limits of territorial waters, as provided for in article 24 of 1958

Photo: Max Machol

105

Geneva Convention on the Territorial Sea and the Contiguous Zone, is regarded as part of the "high seas". This has also been so according to the most widespread opinion among jurists in regard to a special fishery zone (a terminology which I, personally, have regarded as objectionable). In regard to the exclusive economic zone, however, the majority of participating States at the UNCLOS, and the text of the RSNT, has used the term "high seas" as including only the waters which are seaward to the outer limit of the zone. In other words, the exclusive economic zone is not regarded as a part of the "high seas". This formula has met with a certain apprehension on the part of maritime powers, especially the United States and the U.S.S.R. One must here take account of the risk of so-called "creeping jurisdiction", i.e. that a maritime zone originally established for the exercise of certain specified forms of jurisdiction will over the years result in an increased exercise of powers by the coastal State, and that it will eventually be transformed into a kind of territorial sea. One may also envisage that States which are not parties to and bound by the specific provisions of a LOS Convention will claim a right to take measures against foreign navigation, and in particular to impede military navigation, in their economic zones. Such States may invoke as justification of their measures that the zone is not "high seas", and that the traditional "high seas" freedoms do therefore not apply in the zone. In order to counteract such apprehension, and to facilitate the acceptance of a LOS Convention by important maritime powers, negotiations have been carried out with a view to finding formulae which may strengthen the liaison between the fundamental concept of the exclusive economic zone and the traditional "high seas freedoms" of navigation and overflight; which are still to be enjoyed by other States within the limits of the zone, according to the basic compromise which the zone is intended to represent. The new texts which have been provided as a result of the negotiations at the sixth session, and which are now to be found in the ICNT, may prove to be a major achievement. Possibly, an obstacle to general acceptance of a LOS Convention has now been removed. As the text now stands, the exclusive economic zone is still not comprised within the term "high seas". But a new article 86 has been added, concerning 106

the application of the provisions of ICNT Part VII on the "high seas". According to this article 86 the provisions of this Part apply to all areas of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Then it is added that this article "does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58". This article 58, which it is referred to, is the basic article which says that other States enjoy the freedoms of navigation and of overflight (and of the laying of submarine cables, etc.) in the exclusive economic zone, and further that the articles 88 to 115 of the high seas chapter apply also to the zone ("in so far as they are not incompatible with this Part"). Thus, there is now a direct link between the provision concerning the applicability of the high seas regime in the "high seas" proper (excluding the economic zone) and the obligation incumbent upon coastal States to continue to allow freedom of navigation and of overflight within the limits of the zone, with the corresponding direct rights for other States to practise those freedoms. Reference should also be made to article 89 of Part VII Concerning the high seas. According to article 89, "no State may validly purport to subject any part of the high seas to its sovereignty". This article is also covered by the reference from article 58 in Part V concerning the exclusive economic zone. In other words, no State may purport to subject any part of the economic zone to its sovereignty. The coastal State has, within the zone, solely certain "sovereign rights"; accord]ng to article 56 for the specific purposes mentioned in subparagraph 1 (a) of that article ("of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed and subsoil and the suPerjacent waters, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds"). Further, it has "jurisdiction" and "other rights and duties", according to subparagraphs 1 (b) and 1 (c) of that same article. It may be noted that the ICNT also presents a certain simplification of the enumeration of the competences listed in the fundamental article 56 on the content of the economic zone concept and on the rights of the coastal State. There are now only three modalities -

"sovereign rights", "jurisdiction" and "other rights and duties". There are no longer other forms in between, as for instance "exclusive jurisdiction", as in the RSNT. Third Committee - Preservation of the Marine Environment and The Right of Scientific Research Few changes have been introduced in the Parts that deal with Third Committee matters. As stated in the explanatory memorandum the Chairman found that "the provisions contained in the Revised Single Negotiating Text constituted a generally acceptable package in which a proper balance was maintained". He considered this to be particularly so with regard to "the key question of pollution from vessels". The changes that had been made were mostly characterized as "technical changes or additions". The intention was to leave "intact the structure of the compromise on the question of vessel source pollution. This was also, in effect, the general thrust of the negotiations". In the matter of scientific research the majority view, which is also the view of most coastal States and of most developing countries, seems to have been reinforced during the sixth session. Scientific research within maritime areas subject to coastal State jurisdiction shall, in principle, be subject to the consent of the coastal State. Even the U.S.S.R. does not, or does no longer take the position which seems to be the most likely in case of a technologically advanced maritime superpower, namely the freedom of scientific research also within the economic zone or on the continental shelf. The "consent regime" already provided for in the RSNT is also found in the ICNT. However, the basic elements of compromise have been retained. Coastal States shall, "in normal circumstances grant their consent for marine scientific research projects by other states or competent ihternational organisations in their exclusive economic zone or on their continental shelf to be carried out in accordance with the present Convention exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind" (Article 247, para. 3). Paragraph 4 of the same article lists certain grounds, on which coastal States may "in their discretion" withhold their consent; including projects which are "of direct significance for the exploration and exploitation of natural re-

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sources, whether living or nonqiving", or "involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment", etc. It has been added as an additional safeguard in the interest of scientific resesearch for the benefit of mankind that coastal States shall establish regulations and procedures, concerning their granting of consent for such research. On the other hand, two more specific reasons have been included, according to which consent may be refused. These two additional reasons cover cases when the information regarding the nature and objectives of a project is inaccurate, or when the State or the international organisation conducting the research has outstanding obligations from a prior research project. As is said in the explanatory memorandum the establishment of explicit conditions for withholding consent "could be considered as safeguards in favour of the State conducting marine scientific research activities".

dispute settlement according to the Convention in certain cases, and under certain conditions. The cases which are enumerated give, in principle, a court or tribunal full jurisdiction in matters concerning the freedom of navigation etc. This corresponds to the high seas freedoms which shall continue to apply in the economic zone, which are here also made subject to the safeguards of international adjudication as provided for in Part XV. In the matter of fisheries, and

substitute its discretion for that of the coastal State; and (c) in no case shall the sovereign rights of a coastal State be called in question. The coastal State is also protected against the abuse of legal process, or the excessive use thereof to interfere with its resource management, by para. 1 of the same article. According to subparagraphs a - c the following conditions must be complied with: (a) that in any dispute to which the

Fourth Committee - Settlement of Disputes

The question of settlement of disputes, which was dealt with by a fourth part of the RSNT, has never been put before any Committee of the Conference, but has been subject to informal discussions in plenary. This was also the case at the sixth session, leading to a revised text which is now ICNT Part XV. A key element here is the rules of articles 296 and 297, on exceptions to the system of compulsory settlement provided for by Part IV. Article 296 is directly applicable; while article 297 contains optional exceptions, depending on declaration on behalf of the party concerned. Article 297 gives, inter alia, a State the possibility to exclude sea boundary disputes between adjacent or opposite States from the obligation of compulsory settlement. There is, however, a condition that it indicates another procedure for settlement, entailing a binding decision, to which all parties to the disputes have access (art. 297, para. 1 (a)).

More fundamental are the provisions of article 296, paras 1 and 2, which are directly related to the fundamental compromise regarding coastal State powers and the rights of other States in the exclusive economic zone. Disputes relating to the exercise by a coastal State of its "sovereign rights" or "jurisdiction" shall only be subject to compulsory

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The Third Committee, Law of the Sea

as regards coastal State management of the living resources in general, the text is built on the view that the "sovereign rights" provided for in the substantive Parts of the Convention concerning coastal State jurisdiction shall not be called into question, or even made illusory in practice, through the challenge by other States before international tribunals of the decisions taken by the coastal State ~n its management of resources. The new provision of article 296, para. 4, which intends to protect the coastal State's discretionary power of decision in the matter of living resources, has the following wording: No dispute relating to the interpretation or application of the provisions of the present Convention with regard to the living resources of the sea shall be brought before such court or tribunal unless the conditions specified in paragraph 1 have been fulfilled; provided that: (a) when it is alleged that there has been a failure to discharge obligations arising under articles 61, 62, 69 and 70, in no case shall the exercise of a discretion in accordance with articles 61 and 62 be called in question; and (b) the court or tribunal shall not

Photo: Max Machol

provisions of this article apply, the court or tribunal shall not call upon the other party or parties to respond until the party which has submitted the dispute has established.prima facie that the claim is well founded; (b) that such court or tribunal shall not entertain any application which in its opinion constitutes an abuse of legal process or is frivolous or vexatious; and (c) that such court or tribunal shall immediately notify the other party to the dispute that the dispute has been submitted and such party shall be entitled, if it so desires, to present objections to the entertainment of the application. The need for a LOS Convention

It would not be correct to view the question of "Environment and the UNCLOS" in the light of specific issues alone. From the environmental viewpoint the attainment of a general LOS Convention seems desirable, even if the particularly "environmental" provisions worked out in the Third Committee are not regarded as sufficient. The absence of any general conventional regulation of the international law of the sea (apart from the 1958 Geneva Conventions) 107

leads to uncertainty, and thereby to a instances where the different views that certain reluctance of States to take action. are to be reconciled do not have a direct It would seem preferable to reach the relevance to the matter of environmental level of formal obligations to take meaprotection, as in the question of how sures to preserve the marine environment the benefits deriving from deep seabed against pollution, even if one might wish mining are to be distributed. for a more far-reaching regulation than the one which is likely to obtain a twoIn particular, a general LOS Convention will provide formal conventional thirds majority in the present situation. In this light the efforts to arrive at a obligations in regard to the marine envicompromise and thereby at a general ronment on the basis of principles which LOS Convention may be looked upon as have until now only had the weaker an important factor in the development status of an international declaration, in of environment law. This is so even in particular the 1972 Stocldmlm Declara-

tion on the Human Environment. Further, the work of Committee Three, now incorporated in the ICNT, will give a better basis for action against marine pollution in important fields, such as vessel-source pollution. Whether the UNCLOS will reach its ultimate aim, in the form of a comprehensive LOS Convention, and at what stage this may be achieved - either by consensus or by voting with the twothirds majority required - is still uncertain. []

mutual assistance, in order to avert, reduce or eliminate the effects of such a situation or event. relating to the protection and use of Services of international organizations shared natural resources. States sharing a natural resource Environmental assessments should, when appropriate, consider the States should make environmental possibility of jointly seeking the services assessments before engaging in any of any competent international organiactivity with respect to a shared natural zation in clarifying the environmental resource which may create a risk of problems relating to the utilization of significantly affecting the environment such natural resource. of another State or States sharing that The Group considered that this prinresource. ciple did not apply to any normal biExchange of information and consullateral contacts between a State and an tations international organization. Several States sharing a natural resource representatives preferred an explicit should, to the extent practicable, exreference to UNEP (the United Nations change information and engage in conEnvironment Programme) in this prinsultation on a regular basis on the enviciple. ronmental aspects of such natural reResponsibility and liability source. 1. States are responsible for the fulScientific studies filment of their international obligations When it would be useful to clarify in the field of the environment concernenvironmental problems relating to a ing the conservation an& utilization of shared natural resource, States should shared natural resources. They shall be engage in joint scientific studies and subject to liability in accordance with assessments with a view to facilitating applicable international law for envithe finding of appropriate and satisfacronmental damage resulting from violatory solutions to such problems on the tion of these obligation caused to areas basis of agreed data. beyond their jurisdiction; Emergency action 2. States should co-operate to develop 1. States have a duty urgently to further international law regarding liabinform other States which may be ility and compensation for the victims affected: of environmental damage arising out of (a) of any emergency situation arising the utilization of a shared natural refrom the utilization of shared natural source and caused to areas beyond their resources which might cause sudden jurisdiction. harmful effects on their environments; The meeting also considered subjects (b) of any sudden grave natural events such as notification, supply of additional related to a shared natural resource information and consultations; good which may affect the environments of faith 'and good neighborliness; settlesuch States. ment of disputes; non-discrimination; 2. States should also, when approand equal rights of access. The group priate, inform the competent internadid not have time to discuss an amended tional organizations of any such situation text concerning non-discrimination, nor or event. did it have time to consider the text 3. States concerned should co-operate, adopted at its second session on equal in particular by means of agreed continright of access. On the other subjects, gency plans, where appropriate, and no consensus was reached. []

Shared Natural Resources The intergovernmental working group o f experts on natural resources shared by two or more states m e t f o r the fourth time in Geneva f r o m 5 - 16 September, 1977. The group had 14 points before it f o r consideration and a consensus was reached on nine. A m o n g the texts on which consensus was reached were the following:

Duty to cooperate It is necessary tor States to co-operate in the field of the environment concerning the conservation and harmonious utilization of natural resources shared by two or more States. Accordingly, consistent with the concept of equitable utilization of shared natural resources, States should co-operate with a view to controlling, preventing, reducing or eliminating adverse environmental effects which may result from the utilization of such resources. Such co-operation is to take place on an equal footing and taking into account the sovereignty, rights and interests of the States concerned. Agreements and other arrangements In order to ensure effective international co-operation in the field of the environment concerning the conservation and harmonious utilization of natural resources shared by two or more States, States sharing such natural resources should endeavour to conclude bilateral or multilateral agreements between themselves in order to secure specific regulation of their conduct in this respect, applying as appropriate the present principles in a legally binding manner, or should endeavour to enter into other arrangements, as appropriate, for this purpose. In entering into such agreements or arrangements, States should consider the establishment of institutional structures, such as joint international commissions, for consultations on environmental problems 108

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