A shadow of unilateral actions?

UNITED NATIONS ACTIVITIES

UNCLOS II1: The Resumed Seventh Session

A Shadow of Unilateral Actions? by LEE KIMBALL and ADOLF R. H. SCHNEIDER*

Tile shadow of unilateral deep seabed mining legislation hung heavy over the resumed seventh session of tile United Nations ('onference on the i.aw of the Sea in New York (August 21 to September 15. 1978). FoUowing passage of !1.R.3350 by the U.S. llouse of Representatives on July 26 and imminent consideration of the Senate counterpart. S.2053. on the floor ~, on August 28 Ambassador Nandan of Fiji as chairman o f the Group of 77 developing nations stated. "'It is incomprehensible that at a time when the ('onference is at an advanced stage in negotiating an internationally agreed regime for the exploration and exploitation of the resources of the deep seabed, States engaged in those negotiations should contemplate unilateral actions which would threaten It> jeopardize the pursuit of the negotiations ;,nd indeed the successful conchision of the Conference itself'. (Press Release SI-A/327.28 At,gust lq78L Reports of probable follow-up action tm the part of such industrialized nations as tile United Kingdom. Federal Republic of Germany ( FRG ), France. Belgium and the Netherlands leave many Third World nations with the feeling of negotiating with a "gun to their heads'. In the Federal Republic of (;ermany. an ad hoe working group of tile Parlianlent is preparing a single text o f what are now two drafts, one I'roln tile coalition parties SPD and FI)l'.

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and one I'rom the opposition CDU 2. It is reported that this agreed version will probably be introduced following the sunmmr recess of the Bundestag. Other sources imply that France and Gennany will pass measures inunediately upon the heels of tile United States. with Belgium and the Netherlands in the next wave and the United Kingdom still testing die waters. Consultations among all those nations will continue in efforts to harmonize and coordinate these interim regulatory regimes. Chairman Nandan went on to say that, "'It is the position of the Group of 77 that such unilateral legislations relating to the resources beyond national jurisdiction have no validity in international law and activities condtlcied thereunder cannot he purported It) acquire any legal status". (Press Release $1!A/327). Ill response. U.S. Ambassador Richardson asserted that in the view of his country. "'States and their natiowals have the legal right to use the mineral resot, rces of the deep sea-bed beyond national jurisdiction.., tas).., a freedom of the high seas". (Press Release SEA/ 327). lie felt that the legislation would in fact facilitate the early conclusion of a generally acceptable Law of the Sea treaty. I I.N. ('onference Preside,~t Amerasinghe of Sri l.anka remarked that such actions should be regarded not as an "'act of intinlidation'" but as a spur to Conference action. At the plenary meeting on 15 September Ambassador Nandan. speaking for the Group of 77 now representing 119 countries reiter;~ted strongly again the Group's position against pending unilateral action in several industrialized countries at a time when 90% of the work on the treaty n~,s been concluded.

lie found it incomprehensible that the very same states who prolonged the Conference by insisting on a detailed mining code in the Treaty now proceed hastily after so inuch effi~rt had golie into the negotiations to obtain an

acceptable treaty. The Group of 77 rejects especially the right to mine the seabed beyond national jurisdiction because the Moratorium Resolution ¢GA/Res.2574D (XXIVI and tile Declaration of Principles on the seabed (GA/Rec.274o (XXV) exclude tile possiblility of conducting deep seabed mining as a freedom of the high seas. The Group of 77 cannot accept that states acquire rights, which would create an additional obstacle to a treaty: they reject the recognition of right ah initio and would challenge attempts at the proper time and in the appropriate forum. The Group cannot be indifferent to the consequences, arid it is certain that interim legislation will have a negative impact on the negotiations. A dark cloud hangs over the Conference and the failure of this Conference will be felt and weigh heavily in UN deliberations. those wh,o proceed to enact illegal legislation will be responsible for *l,cc Kimh',dl (Mi.'~), I d i t o r ,V/:7'TU.V/:. a pol',licalion for Indcpendenl New,; al IIw l.aw o f the Sea ('Old~'renee. A d o l f R. I1. Scllneider (I.I,.B.. I)r. jot.). M ¢ l l l k , r I('I-L & Ob,~crvcr at the l.aw o f the' .~t.;.l ( ' o n [l.,r L'llq.'c. l:or furlhcr r,.:l~:rcncc to the i . . ~ o f 11!~ Sea ncc U1c t'~dlo~,ing pages in l"m, ir~mme, r d l'olicv a,,l Law: Vc, l. 4 11978) No. 2'3', PI). ¢*q. i 2 6 : No. I. p.2: Vol. 3 119771 ~t~. 314. p. 98: No. I. p. 3" Vol. 2 (1976) No. 2. p. 61]:

V . I . l (19751No. 3,pp. l l 4 : m d 120.

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the irreparable consequences. TheGroup of 7~?'deplores actions and categorically asserts' that this action will not be recognized. The USSR, Poland, German Democratic Republic, Bulgaria, China as well :as :ot~ers agreed with the views of theGroup of 77. Ambas~dor Richardson'of the US also refuted again the specific allegations which were made concerning the incompatibilits' ot~.national legislation in regard to,tho cited UN resolutions and was Supported ,in his assertion of the high ~as fight, to mine t.he ,deep seabed by :s~veral of th 9 indust~'ialized.nations. AmbeR,ichardson conlinued to d~fend thle US ,position in stating, further: "',,;: fromthe outset of these negotiations, it has also been our consistent position that exploration and exploitation of the deepseabed beyond areas o f nataonal jurisdiction are freedoms of the high seas .¢gjoyed by all nations. Legal rest[aints may be: imposed on national actionr., only by their inclusion in rules of int~rna~0nal law. With respect to seabed ,m~ing we are tinaware of any such restraints other than those that app~ gener~llly to. the high:seas and the. exercise of high seas freedoms... States will become subject to additional restrMnts when they adhere to a treaty that established an international authorityto manage and oversee seabed mining. They will then have voluntarily accepted the 'alterations ofthose t'reedoms in tile bi~Oader interest o'f creating a stable leg,.alre'git ~ n e f0r the use and management of the world's oceans and their resources. But we cannot accept the suggestion that 'other States, without our consent. cotiltl deny or' alter our rights under internatioflal law by 'resolutions, statements, arid the like. ''3 " lt'carm6t be doub'ted that the two co~tr0¢efs~ iS6'st~ions will dominate the future LOS negotiations and that th~ mattef:~,ili b~ discussed in the upc6hlihg' UNGenetal Assembly Ses~sion due to Open on'19 Sepi178 in New York. With regard to the impact of legislation ;on the; future of the LOS.Conference, it~is difficult~ t0 get a.dear picture. C~ftr/inly"tfie:US,'has 'expressed t h e view thaf ~aeg0tiations will"m0veforW~rd ori~ce'd~gates realize that mining ~i~| ~if0c~e~ ir~[[ard[ess:of Cont~rence agreei~eht: ~Y6t'all delbg~tionS seem to agrbe'lfiat p assa~ wltl"6~?eatebitterness and rancor'~at:lhe~etniferened. Often cited is the fact ihafq~0d~iy's mineral markets for nickel, and copper hardly provide a favorable Climate, re, mining in the nearfuture, .and ~eveit mining

Env/rohrnen~aiPo/icF'~'.~,[t.g¢-8)

company spokesmen are saying that they do not expect commeroial production tobegin until the late 1980s or early 1990s. To 'quote a July 31, Wall Street Journal article, "Some experts estimate that nickel prices will have 1o rise 50% :and copper prices will have Io double to make seabed mining economic." It was also said: at the Conference that proceedmgunilateraUy with mining indicates to other nations that the US= is not negotiatingin good faith, because the,aims of the UN Conference are to develop an international mining regime -- that the US is ,trying to 'have its cake and eatit too'. Thi~pereeption is likely t o m a r the US image in other international forums as well. Finally, passage of US legislation followed by that of other d e . l o p e d nations will create an :inevitable verbal Macklash .on the :part of the developing nations and'most likely lead:to Cortdemnatory resolutions in t h e UN General Assembly and in the .LOS.Conference itself: This Willpervade'the :air with: a sense 'of confronlaOon difficult to disperse :for sometime -- for how long no one can .predict. The :crux of the matter, according to one knowledgable spokesman, is that unilateral mining authorizations will withdraw areas already under development from the international regulatory regime, and in particular frofn its revenue~sharitrg provisions. Even though under US legislation commercial re. covery would not be permitted to begin until 1980 or 198 !, the parameters of the areas to mined unilaterally will be set from the time the applicant first submits'a work. plan once the law comes in to effect. This spokesman views unilateral moves as an effort to obtain grandfather fights in the eventual treaty, a goal which he feels will now be all the more adamantly denied the perpetrators by other nations. Following informal rumors and sug, gestions to this effect,~ duringthe General Committee meeting of 11 September 1978 President, Amerasinghe mentioned that "We should attempt now to fix a final deadline for the completion of our work.., if we are to retain any amount of credibility in the international .community". (Press Re. lease SEA/328). Despite strong obJections, the idea was taken up again at the General Committee meeting on September 14 by Peru which stated that asecond session in 1979 should :be madedependent on the outcome of the

first one scheduledin the spring of 1979. ff the Conference fails to.reach its target (A/Conf.62/62) of revising the ICNrl"and :formalizing the text, thus ending informal, negotiations,:then no second session Should be.held in 1979. President Amerasinghe :countered that this should be,decided by,the Conference itseff. A timetable .should be adoirted with pdmaW emphasis on Committee I malttetS,;bUt~no ~ltirnatum

or straight Jacket~slrouldbe imposed on the Conference as this would help noone. Singapore, Nigeda~ Tanzania,: Aus. t ralia, Brazil, the~USSR'and many other delegations voiced,their views - all expressing 'the wish that an attainable goal be set foi: the next session t o promote disciplined consideration of the issues but Without adkiJpting:rigid condition= on that session;: Bulgaria:stated that disciplineis not alone a solutio1~; the will: to create 'an

acceptable~ agreement must .also exist, Several delegations asked for a cleat program for the next session. In an enligh'teni~g ~md fiery speech Baroody ofSaudt' Arabia. warned the delegates that "tmli~ss ~here is good willand:good faith in :any treaty, Words can become a scrap o f p a p e r " . He urged the President and .his,staff to wisely use the time betweenlsdssions to fai~tlitate agreement. He added that "'If you d o not know how to make your dough, give it to a bal~e'r ~ilthough he may eat the half of it". The recommendationsof the general Committee to the plenary:were accepted on 15 September as to'~he time and place of the next session. (A/Confi62/ 69). The eighth sesSion of the Law oftlie Sea Conference will beheld for six weeks beginning on.March 19, 1979 in Geneva. "'Its objecti;~e should be the. conclusion of informal negotiations and ¢eviSiOrlof the Informal Composite Negotiating Text (ICNT)" produced in 1977. "The question of the formalization of the Revised InTormal N6gotiating Text will also be,'considered before the end of that session. The General Committee also recOmmends''~O thePlenary that the Conferenc6be empowered t o d6~ide at the end of its ~ighth session =to hold further meetings in 1979..." Negotiating Groups established in, Geneva will continue with their, work from the outset of the eighth session in'Cpeneva. hz New York

Despite the intmediate resumption of Negotiating Group (NG)meetings in 147

New York, thus avoiding time-consuming plenary debates, delegates expressed frustration on the one hand at what seemed to be an interminable negotiation and on the other at misperceptions of what had been tentatively 'agreed to' in Geneva. The developing nations felt that the developed nations were disassociating themselves from new provisions on the transfer of deep seabed mining technology, on seabed production ceilings, and on financial arrangements which had been perceived as tentatively acceptable in Geneva. This seeming retrogression made it difficult to maintain the moderation among the developing nations which had contributed so much to progress during the 1977 and earlier 1978 session. As readers will recall, 4 the seven negotiating groups set up during the first part of the session in Geneva are: 1) the system of exploitation and resource policy, chaired by Frank Njenga of Kenya; 2) finance questions, chaired by Tommy Koh of Singapore; 3) organs of the authority, chaired by Paul Engo of the United Republic of Cameroon (also chairman of Committe I); 4) access of land-locked and other nations to the living resources of the economic zone, chaired by Satya Nandan of Fiji; 5) dispute settlement with regard to the exercise of coastal states' sovereign rights in the economic zone, chaired by Constantin Stavropoulos of Greece; 6) delimitation of the continental shelf and revenue-sharing, chaired by Andres Aguilar of Venezuela (also chairman of Committee II); 7) delimitation of boundaries between opposite and adjacent states and dispute settlement thereon, chaired by Judge Manner of Finland. In addition, Committee I11 continued to meet informally on questions of vessel-source pollution and marine scientific research. The Drafting Committee, chaired by Ambassador J. Alan Beesley of Canada, met throughout the session in order to exercise its mandate of eliminating inconsistencies and streamlining the texts already produced. Progress: Committee

I

In the major area of outstanding controversy, deep seabed mining, NGs 1,2, and 3 faithfully debated the subject matter but found themselves constrained by the shadow of legislation and the seeming inflexibility on 148

the part of delegations feeling its impending protective shield. In NG1 in particular, delegates seemed wary of moving too quickly without the full and visible support of all concerned. In his report (NG1/14) Chairman Njenga indicated that delegations had cooperated in not reopening the texts produced at the end of the Geneva meeting (NG./10/Rev.1) despite serious reservations expressed in particular by the European Community countries. Others urged that discussion of the Geneva texts be postponed until other relevant issues involved in the NG 1 'mini-package' had been considered. The group thus proceeded to discuss Annex II of the 1977 ICNT on the system of exploitation. Excluded from their talks was the central question of the applicability of the whole of Annex II to Enterprise operations in one segment of the 'dual track' mining system; it was felt that this should be dealt with at a subsequent meeting. Those changes produced in the twothirds of the Annex paragraphs considered were minimal for the most part, clarifying existing language. This was because Chairman Njenga believed that only amendments which had seemed to present no serious problems to delegations and which retained the balanced structure of the Annex should be included. Many delegations had reserved their views until more intense negotiations had taken place. Of the more substantive issues such as anti-monopoly provisions (limiting the number of mining operations by any one state's entities and within a certain portion of the international seabed area) submitted by the Soviets, immediate mining by the Enterprise as proposed by India, and a United Kingdom 'anti-freeze' proposal limiting the time period during which reserved sites could remain undeveloped by the Enterprise, the chairman took note and indicated they would receive further consideration in the future. In NG2, Chairman Koh noted that he had put forward specific figures for financial arrangements provisions between private Contractors and the Authority originally structured in Geneva. He cited the reasons for which he felt these represented compromise proposals. These figures switch to an income tax approach rather than taxes varying with return on investment in order to present a simpler system more familiar to the majority of nations and one which could rely on more straightforward accounting procedures.

The final papers include: - an application fee of $ 500,000; - an annual fixed fee of $ 1 million; - a choice by the Contractor between solely a production charge or a mixed system of payments to the Authority with a reduced production charge and a share of net proceeds. Each of these three payments escalates in three stages over the period of the contract. On the controversial issue in Geneva of defining "attributable net proceeds" of the profits taxable by the International Authority as a portion of the profits for the whole operation from mining through transport, processing, and marketing, Chairman Koh chose the political compromise of 40% as the share of profits to be taxed by the Authority. In order to take into account the uncertainties incumbent in an as yet unconsummated industry, however, a 'safeguard' clause has been added to the 'mixed system' of payments which prevents escalation to the second higher stage of taxation at the designated year if the Contractor has failed to recoup his initial development costs. It also prevents escalation to the third stage unless the Contractor has recouped twice his initial development costs, in both cases taking into account inflation and interest costs. Based on a model produced at the Massachusetts Institute of Technology (M.I.T.) and made available to delegates in Geneva, payments to the Authority under the Koh drafts would vary from $ 740 million with the single system of payment to $ 1.1 billion under the mixed system, both representing an approximate 15% internal rate of return. The Chairman stressed, however, that internal rate of returns under the M.I.T. model were calculated after national tax payments to the United States; therefore the internal rate of return calculated before national taxes would rise well above 15%. Restrained reactions during the final plenary session of the Conference on September 15 from the industrialized nations do not bode well for the acceptance of the percentage figures proposed by Chairman Koh. The Federal Republic of Gemlany, Japan, the United States, France, the Netherlands, Italy, Belgium and the United Kingdom all expressed reservation on these provisions. In order to streamline the organs of the Authority and their powers and functions, NG3 under the chairmanship Environmental Policy and Law, 4 (1978)

of Paul Engo agreed that the subsidiary organs or commissions of the Authority should be put in the position solely of advising in their respective fields of competence with the role of the Council as the executive arm of the Authority remaining unchallenged. Thus several of the functions previously assigned to the Technical Commission have been transferred to the Council of the Authority under the new draft (NG3/4) and the number of subsidiary organs specified in the texts has been reduced from three to two: a legal and technical commission which takes over some of the functions of the previously proposed rules and regulations commission and an economic planning commission which now has competence to make recommendations on implementing resource policies.

commissions stress the need for flexibility and expertise appropriate to each. The chairman also noted that the size, composition and voting powers of the organs of the Authority had been generally supported as written in the ICNT texts.

Progress: Committee II As discussed in the previous article on the Geneva session, the land-locked and geographically disadvantaged nations still find their demands unsatisfactorily met. Finding that NG4 had not been scheduled to meet virtually at all during the first two weeks of this four-week session, Poland protested that fact, explained by the President of the Conference as an effort to first allow

to be getting nowhere. A number of corrections to the map produced in Geneva illustrating various formulae for the definition of the continental shelf were brought to the attention of the Conference. (A/CONF.62/C.2/L.98/ Add.3). Attempts were made to turn the group's attention to the second part of its mandate, revenue-sharing, with protests arising from those nations with definite views on where the outer boundaries of a coastal state's claim to the continental shelf ought to lie - the USSR and the Arab nations. In a new proposal, the Seychelles advocated that 10% of the revenue from seabed exploitation beyond 200 miles be shared, rather than the upper limit of 5% proposed in the ICNT texts produced in 1977 (NG6/3). It will be up to these NGs to decide for themselves whether and in what direction and form more constructive steps might be taken at the next session of the Conference.

The chairman reported (NG3/5) that it was hoped this would avoid the Authority becoming too "cumbersome" in its early life, and that the Authority would retain the power to create additional subsidiary organs as required. Specifically, discussions led to provision for establishment of a subsidiary organ to deal with financial matters. Moreover, the commissions established are encouraged to call upon othe~ competent UN or intergovernmental bodies housing expertise, and the preparation of technical studies or reports will be confined to the Secretariat of the Authority in an effort to reduce the activities of the subsidiary organs. New provisions on membership of these

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NG6 to progress. NG4 Chairman Nandan felt the group's meeting would be "counter-productive". (Press Release SEA/328). There was some fear that all 'agreed' provisions would be opened up again to the detriment of what had already been achieved. In his consultations with leaders of the two major groups concerned, the Coastal States and the Land-locked and Geographically Disadvantaged, Chairman Nandan found agreement that the present session was not the appropriate time to seek improvements in these texts. All those concerned expressed a wilIingness to continue work at the next session. However, discussions within NG6 on the delimitation of boundaries seemed

NG5 held only one meeting in New York. The chairman's report (NG5/18) notes that the compromise formula produced in Geneva was considered to have the requisite support to be introduced as an amendment to the ICNT. Those issues which would require further negotiation by the group would be defined and reviewed at the next session, but for the time being the group decided to await further progress on other hard core issues. Five Informal Committee II meetings continued to entertain observations on ICNT texts from article 72 onward, subsequent to those considered during the previous Geneva session. Chairman Aguilar also reported that consultations had taken place on improving the protection afforded marine mammals by articles 65 and 120 of the ICNT. NG7 examined three questions during the New York session, according to the chairman (NG7/24): delimitation criteria, interim measures, and the settlement of sea boundary disputes. Four elements were outlined which should be considered as criteria for final solutions and utilized if interim measures are imposed: reference to 1) mesures by agreement among the parties, 2) to all relevant or special circumstances to be taken into account, 3) to reliance on equity or equitable principles, and 4) to the median or equidistance line. There is still controversy over the latter two elements. In addition, interim measures taken are not to be obligatory 149

or prejudice final boundary determination. In relatien to dispute settlement, the 'survey of possible conciliatory approaches to the question of settlement of sea boundary disputes' was revised to encompass a series of examples of past usage (NG7/20/Rev.1) in the hopes of arraying options before delegates to facilitate agreement. Seven models and 12 alternatives relate to the application of dispute settlement procedures to either/both disputes or/and situations or facts existing prior to the entry into force of the proposed Convention, disputes involving actual determination of boundaries, and/or disputes subsequent to entry into force. In an effort to set forth available choices, various options were suggested ranging from excepting certain disputes to accepting non-binding through binding procedures for one or more of these classes of disputes. One proposal makes provision for an initial determination of principles or methods and circumstances to be applied to the dispute with parties ultimately subject to binding third-party procedures if they fail to reach agreement on these bases within a specified time period. Following presentation of this revised document, however, NG7 committee members decided to request further documentation of past practice thus avoiding confrontation of substantive boundary issues. In the background, partisans of the equidistance or median line formulation vied for additional support with partisans of the 'equitable principles' formulation. In the Committee III discussions, the negotiations concentrated on the main issues, namely: the protection and preservation of the marine environment, marine scientific research and the development and transfer of technology. A selected and restricted approach has proved very efficient by concentrating on key issues of vessel source pollution and related matters and on the r e , m e for the conduct of marine scientific research in the economic zone and on the continental shelf. The Chairman of the Third Committee, .Mexander Yankov, reported in an oral report to the Committee and a written one to the Conference about the "substantial progress" in the Committee's work on marine pollution provisions which emerged from intensive negotiations during the resumed session. Those articles on marine pollution discussed in Geneva which had been 150

divided into four categories ranging from acceptable to less acceptable in the light of 'improving the prospects of consensus' underwent further consideration. Ambassador Yankov redefined three categories during the New York session. Although no more articles were included in the most acceptable category I, Ambassador Yankov reported that no objections were made to several of the Category II provisions (MP/27 & C.3/Rep.1), although "There has been a general understanding that they could not be taken in isolation and transfered to Category I without considering all the other compromise formulae", s The enforcement powers of coastal States to protect their offshore waters from pollution would be considerably strengthened by several of these provisions - such as the power to detain vessels, to inspect them and to impose monetary as well as other penalties against violators of anti-pollution laws. Art. 221 was redrafted and includes a detention provision, which concerns enforcement by coastal States. Paragraph 6 of Art. 221, relating to the economic zone, would empower such States to "cause proceedings, including detention of the vessel, to be taken in accordance with its laws". This could be done where "there is a clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State, has, in the exclusive economic zone (EEZ) committed a violation of applicable international rules and standards or national laws and regulations conforming and giving effect to such international rules and standards for the prevention, reduction and control of pollution of vessels". To be applicable the violation must have resulted in "discharge causing major damage or threat of major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone". The text emerging from the New York Session accepts an extension of the powers to the EEZ but uses the term "detention" in place of "arrest". Another change from the Geneva text was made in Paragraph 5 of Art.221 which would permit "pl~zysical inspection" of a ship by a coastal State on matters relating to a violation in the economic zone. The key change from the 1977 text is the clause permitting inspection not only after damage from

pollution had occured but also in cases where such damage was threatened. Art. 222 concerning measures relating to maritime casualties to avoid pollution was drafted at Geneva and retained following discussions in New York. "Maritime casualty" is defined in the text as "a collision of ships, stranding or other incidents of navigation, or other occurence on board a ship or external to it resnlting in material damage or imminent threat of material damage to a ship or cargo". The 1977 text would have authorized such protective action only when there was "grave and imminent danger" from pollution or threat of pollution. Art. 231, concerning monetary penalties and the observance of recognized rights of the accused was changed in New York in wording and form and would permit an exception that, in effect, would enable a State to impose, whether in the territorial sea or beyond, other kinds of penalties (which are not specified) if "a willful and serious act of pollution" occurred in the territorial sea. Art. 212,2bis deals with cases in which two or more States make cooperative arrangements, on a regional basis, to impose pollution control conditions for the entry of foreign ships into their ports or internal waters. When such arrangements existed, and when a ship in the territorial sea of one of the States applying them was bound for a port in another State party to the arrangement, the text would oblige the ship's flag State to require the vessel to tell the State in whose waters it was then located whether it was in compliance with the port entry requirements of the State to which it was sailing. Aside from pollution matters, the committee considered two provisions on dumping. The first of these revised the definition of "dumping" to exclude incineration at sea (Art. 1 § 5); the second changes article 211, leaving intact the requirements that coastal States give their express approval before dumping could be carried out in their territorial sea or EEZ, but requiring "due consideration of the matter with other States" which might be adversely affected. The 1977 text spoke of "consultations" rather than "consideration". And lastly Paragraph 1 of Art. 227 (Investigation of foreign vessels) was redrafted. The main parts say that: "States shall not delay a foreign vessel longer than is essential for purposes of

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investigation...";"..physical inspection... shall be limited to an examination of such certificates.., as the vessel is required to carry...."; "Foilowing such an examination, an inspection.., may be undertaken only when there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents.., or.. is not carrying valid certificates..."; "If the investigation indicates a violation of applicable laws.., or international rules and standards for the preservation o f the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security"; "...relating to sea-worthiness of ships, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. In situations where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with the provisions o f Part XV of the present convention." Many States voiced their opinions on the Articles dfscussed above, and it became clear that further negotiations are necessary. (SEA/335 p. 16) Although the Committee concentrated on pollution control, it also devoted time to the question of rules governing marine scientific research. United States attempts to modify provisions for the conduct of marine scientific research met with virtually no support from other delegations, neither developed nor developing; they turned away from them because they did not seem to offer a substantially improved prospect of a consensus. The Chairman's report suggests that some of these informal proposals will be returned to at the next session. As in previous sessions, Ambassador Yankov reported that Committee III "made substantial progress towards a broad framework of provisions constituting a reliable basis for a comp'roraise which could lead to a consensus." (C.3/Rep.I) Finally, the Drafting Committee produced revised papers on compiled internal references in the ICNT. The Secretariat will work on studies on the formal organization and structure of the Convention and on juxtaposing provisions in each of the official languages

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in order to make immediately obvious any differences inadvertently implied before the next session.

Conclusions The Resumed Seventh Session was overshadowed by national interim legislation, which as matters stand at the moment, will probably be passed during October 1978 in the USA and before the end of the year in other industrial nations. The UN General Assembly will no doubt debate the matter at its coming session in Sept. 1978 and denounce such actions. Although the President of the LOS Conference stated that it is not the intent of this unilateral legislation to put the conference under duress, he expressed fears that not the legal but the psycological effect could seriously impede the coming negotiations at the 8th Session in Geneva in 1979. He earnestly appealed, therefore, to all delegations to refrain from actions which could prevent the conclusion o f this important UN Conference. It would have a calamitous effect on all UN activities if the conference fails. If all concerned use a measure of restraint the conference is by no means in a desperate situation to eventually conclude a treaty. In this regard Mr. Baroody from Saudi Arabia appealled in a humorous but directway to the participants of the Conference, especially to the Big Powers, to refrain from 'politicising economics' and resorting to national narrow interests, ulterior motives, or trying to dominate the coming Geneva session. We should stop creating 'our own difficulties' and 'politicise the Common Heritage Principle'. A pragnatic solution should be under thought. From the Resumed Session it could be ascertained that the will to conclude a treaty and continue, although in a 'disciplined manner', with earnest negotiations is still very much present. The revision of the ICNT and formalisation of the Text is regarded as the main target for the 8th Session. With regard to the work of the Conference at this session, the reports of the chairmen of the three main Committees and the seven negotiating groups were to be included in the official records of the conference although of an informal nature; delegations refrained from commenting on the substance of the reports but stated their respective reservations t o be discussed in Geneva in 1979.

Some "courageous" proposals were made - so by the Chairman of NG2, (T. B. Koh, Singapore) on financial arrangements between seabed contractors and the proposed Seabed Authority. Heated debates can be expected on this proposal at the coming session. It must be conceded that more work actually had been done at this Resumed Session then was originally expected. 6 The participants regard the coming 8th Session as the crucial one, as the outcome of that session will not only decide the fate of a further sessions, but the whole conference. The examination o f the overall system of exploration and exploitation of the seabed resources (NG1) will need the same priority treatment during the next session. Finally, hope can only be expressed that the negotiating process will not be damaged by the shadow of unilateral actions hanging over the Conference and that the political will to conclude a treaty will prevail and be strengthened despite the hazards which face the Conference. []

ISeeNEPTUNE, Sept. 1978, No. 13. ZFrankfurter Allg. Zeitung 16.8.1978 and 19.8.1978. 3Statement by Arab. E. L. Richardson to the Plenary Meeting, Sept. 15, 1978. 4Environmental Policy & L., 4 No. 2/3, July 1978, pp. 69-77. ~The provisions which emerged from the negotiations during the Resumed Session are contained in informal paper MP/27 and are listed under the second category in Annex I of C3/Rep.l: Art. 1 ~ 5 (a) (i);Art. 211 ~ 5; Art. 212 § 2 bis;Art. 221 § 2, 5 + 6; Art. 222; Art. 227 § 1;and Art. 231 § 1 + 2. - see also C 3/Rep.1 p. 24 (ANNEX II, Report by Mr. J. L. Vallarta (Mexico), Chairman of the Informal Negotiations on Part (XII) Protection and Preservation of the Marine Environment. 6Additional informal sessions and seminars took place on the questions of limitations on seabed mineral production and financial arrangements. Documents produced at this session: NG1/13, 14 NG1/13/add.1 NG2/10, 10/Rev. 1 NG3/4, 5 NC4/11 NG5/18 NG6/3 NG7/20/Rev.1, NG7/22, 23, 24 so/2 MP/27, 28 MSR/2 Informal Committee I1/39/Rev.1, 18/Rev.1 Committee II/L.98/Add.3 Committee III/Rep.1 A/CONF.62/L31, L32, SR106, 107 A/CONF.62/68, 69 A/CONF.62/BUR/SR41 A/CONF.62/BUR/S R43,44 A/CONF.62/C.3/SR39 Press releases SEA/324 to 336 151