UNCLOS III: At the threshold of a sea convention

UNCLOS

III

At the Threshold of a Sea Convention by LEE KIMBALL and ADOLF R. H. SCHNEIDER*

A round-up of the second part of the 9th Session of the Law of the Sea Conference, Geneva, July 28 to August 29 1980

INTRODUCTION When the 9th session resumed at Geneva in July 1980, virtually every delegate felt that UNCLOS III had reached the crossroads. Would it be possible in a convention of such amplitude to attain agreement on all the issues involved in a manner which in every respect would satisfy all delegations and reconcile not only such a bewildering diversity of interests ? Would it be possible to cope with formidable internal and external threats to the conference, such as the interim unilateral Deep Seabed Mining Legislation of the US and FRG passed shortly before the commencement of the conference ? Would the political "spill-overs" resulting from the worsening relations between the Great Powers, whose ripples were sometimes felt during the session, endanger negotiations? Or would common strategic interests of the SuperPowers create a feeling in the Conference that the "tyranny of a minority" would now force a decision? Would the Consensus principle and Package Deal prevail and generate the political will and constructive cooperation for a long awaited breakthrough? Although delegations stood up for their rights, necessities and aims at this conference which is now in session for 73 weeks over a period of 7 years, it was apparently realised how "fragile" the conference had become, and that the only feasible compromise in order to save the conference from failure, would be something that would "fall short of the perfect in order to achieve the desirable". *Lee Kimball (MIA), Consultant to the United Methodist LOS-PROJECTin Washington, D.C.; Adolf R. H. Schneider (LL.B. Dr. jur.) Member ICEL & NGO-Observerat the Law of the Sea Conference.

Environmental Policy and Law, 6 (1980)

Have we safely traversed the crossroads and achieved the so acclaimed "breakthrough" - without making the horse shy ? UNCLOS III has finally taken the leap that will position it for completing its last lap during March-April, 1981. There is now no doubt that the then eight-year negotiations can be terminated during 1981 and a Convention opened for signature. While those issues which remain to be addressed are neither simple nor non-controversial, the determination of delegates to compromise on final texts at the Geneva meeting represented a breakthrough in Conference proceedings. The long and tortuous process of invoking this will may well have been cut short by the response on the part of a number of developing nations to speed the entry into force of the Convention in order to pre-empt the establishment of a well-entrenched mining system under unilateral national laws.

RESULTS The five-week deliberations produced a third and final revision of the Informal Composite Negotiating Text (ICNT) first issued in 1977 and revised in the Spring of 1979 and again in the Spring of 1980. (A/Conf. 62/WP. 10/Rev.3, 27 August 1980 and Corr. 1 and Add. 1). Delegates agreed to meet again at a six-week4ong 10th session from March 9 to April 17, 1981 with the option of extending for one week to April 24. This meeting will take place in New York if facilities for the Law of the Sea Conference can be made available; otherwise it may convene elsewhere. Prior to the 10th session, the Drafting Committee, chaired by J. Alan Beesley of Canada, will meet in New York for seven weeks, from January 12 to February 27.

This new third revision of the text before the Conference is still considered an informal negotiating text, as opposed to a negotiated text. The criterion for revision of the texts remains that any modifications should be "found, from the widespread and substantial support prevailing in plenary, to offer a substantially improved prospect of a consensus" (A/Conf. 62/62 30 April 1978). Though it is termed a "Draft Convention on the Law of the Sea (Informal Text)", the title is not meant to prejudice the status of the texts. This decision will be taken at the Spring, 1981, session of the Conference.

The Future Although the Conference did not keep to its schedule for completing negotiations at the Ninth session and adopting a draft text of the proposed Treaty, it is generally understood by Conference participants "that the Ninth session must be regarded as the last negotiating session except on those issues on which agreement has not yet been reached" (A/Conf. 62/Bur. 13/Rev. 1,28 August, 1980). There are three primary questions which have yet to be negotiated, in addition to the still unresolved issue of delimitation of maritime zones between opposite and adjacent nations (See Committee II). Consultations among interested parties will also be encouraged on any questions where further refinement would enhance the prospects of arriving at a consensus on the matter involved. The first three weeks of the Tenth session will be taken up with these remaining negotiations and with the examination by the Three Main Committees and by the Informal Plenary of recommendations from the Drafting Committee. (The 1st Committee deals with deep seabed mining matters; Committee II with traditional ocean law questions such as fishing, navigation, and maritime zones of coastal states; Committee III with marine scientific research, transfer of technology and protection

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and preservation of the marine environment, and the Informal Plenary with dispute settlement, general provisions and final clauses of the Treaty). The Conference will then decide what status to assign to the final text, subject to the rights of delegations to submit formal amendments in accordance with the rules of procedure. It is hoped that delegations will for the most part refrain from making numerous amendments. This would avoid time-consuming formal discussion and voting prior to adoption of the Treaty. It must be recalled that Conference procedures provide for a deferment period of up to 5 days for consideration of amendments in the Main Committees and of up to 10 days for amendments submitted in the Plenary. Should many amendments be proposed, a schedule would have to be worked out to accomodate their presentation and consideration. Those issues which will be the focus of negotiations at the Tenth session are: (1) participation in the Convention of entities other than nations - i.e., by liberation movements or by the European Economic Community and territories which have not attained self-governing status yet whose mandates include some of the rights and responsibilities which would be exercised under the Convention; (2) the mandate of the Preparatory Commission which is meant to set the stage for the International Seabed Authority and its operating arm, the Enterprise, as well as for the International Tribunal on the Law of the Sea; and (3) the treatment to be accorded to investments made in preparation for seabed mining before the LOS Convention enters into force, taking into account their compatibility with the aims of the Convention. This latter point will have a critical impact on ratification of the Convention by those nations which plan to authorize deep seabed mining operations on an interim basis prior to entry into force of the Convention (See Unilateral Legislation).

Drafting Committee (A/C0nf. 62/L. 57]Rev. 1, 1 August 1980; A/Conf. 62/L. 63, 27 August 1980) In this final stage of UNCLOS III the work of the Drafting Committee will increasingly become a focus of attention, for as the final texts of the LOS Convention emerge, its task grows both more arduous and more important. This body 118

must not only harmonize usage of words and terms within the texts and ensure that the six different language versions say the same thing, it must also complete an article-by-article review of all portions of the texts to ensure clarity and consistency. To date the Committee has concentrated on texts produced by Committees II and III, since these were closer to final form. It will contlnue this review and expand to the work of Committee I and the Informal Plenary at its planned intersessional meeting in New York in early 1981. A oneweek interlude between the February 27

end of the Drafting Committee meetings and the commencement of the 10th session on March 9 is meant to permit governments to review Drafting Committee recommendations in order to come to the 10th session prepared to comment on, act, ,~pt, reject or modify them. So as not to overload this oneweek period, the Drafting Committee will work out a specific schedule of provisions to be addressed and issue periodic reports to governments during the course of its seven-week meeting. This schedule will also facilitate participation in the Drafting Committee discussions by the substantive experts on, e.g., Committee I matters, during the appropriate block of time.

Unilateral Legislation (A/Conf. 62/100 and A/Conf. 62/!03) Enactment of PL 96-283 by the US Government on June 28 (see also p. 134), which authorizes deep seabed mining operations by US companies, as weU as

reports of imminent approval of a similar measure by the Government of the Federal Republic of Germany (see p. 134), caused a good deal of nervous speculation among Conference participants as to how these measures would affect Conference deliberations opening in Geneva on July 28. While both laws attempt to accommodate the LOS Conference process by delaying actual commercial exploitation of deep seabed resources until January 1, 1988, in the hope of allowing enough time for the Convention to enter into force and supersede domestic laws, there could be no denying that the measures do in fact run contrary to the views of 119 developing nations that such laws are illegal and contradict the rule of conducting negotiations in good faith. These views were duly noted and denied by the Group of 77 and spokesmen for the developed nations at the opening plenary of the Conference. Fears of extensive debate on the subject, however, proved groundless. On the final day of the Conference, E. K. Wapenyi of Uganda, Chairman of the Group of 77 (G-77), indicated that the Group of Legal Experts of the G-77 had completed a position paper on the legal status of unilateral legislation which would be issued as a Conference document. This paper condemns such legislation as a violatior~ of the fundamental principles of international law applicable to the international seabed area and explains the view that the common heritage of mankind is a customary rule of international law and that high seas rights cannot justify unilateral exploitation of the seabed. It also states that any illegal appropriation of the international seabed infringes on the principle of non-discrimination among nations and that unilateral legislation or limited agreements cannot establish legal security for investments made under their auspices. It then refers to the requirement that any nation carrying out such exploration or exploitation activities must either restore the resources entirely or, if that is impossible, pay compensation equivalent to such restoration, and it points out that nations are free to resort to the competent courts against those nations responsible for actions in violation of international law ("Legal Position of the Group of 77 on the Question of Unilateral Legislation Concerning the Exploration and Exploitation of the Seabed and Ocean Floor and Subsoil thereof beyond National Jurisdiction", 27 August 1980).

Environmental Policy and Law, 6 (1980)

To quote President Shirley Amerasinghe of Sri Lanka, the passage of these unilateral laws had a "psychological" impact on the Conference. Yet to the credit of Conference participants, they buckled down all the more doggedly to completing the task before them in order to foreshorten the duration of applicability of these measures. What became obvious during the Geneva session was not only the frustration engendered by these measures but also the misunderstandings around them. For those national representatives who had worked hard for compromise texts in the Conference, the timing of adoption of these laws was incomprehensible. A number of nations seemed to expect that with the conclusion of the negotiations so near, there was no reason for the US and other nations not to have awaited the outcome of the Geneva meeting and then enacted a measure more in keeping with Conference texts. Yet there was no possibility that the US Congress would have recommended the tedious process of introducing a new measure or substantive amendments to the existing one following the Geneva outcome. The measure would have remained basically the same. Other national representatives believed the fallacy that the developed nations would not have adopted legislation had the Geneva results been favorable. Yet the period prior to entry into force of the Convention would still have necessitated some domestic measures to keep alive seabed mining investments. It will be important to ensure that similar misunderstandings be avoided in the future. It is vital that the relationship between unilateral laws and the work still before the Conference with regard to the mandate of the Preparatory Commission and its role in promoting the early and efficient conduct of deep seabed mining be clearly apprehended. Significant progress seems to have already occurred in this area, if the final general debate at the Geneva session is any indication. During that debate severn nations acknowledged this interrelatedness and exhibited a willingness to accommodate it, given certain conditions. India left some leeway for the promotion of seabed mining as long as it was consistent with the parallel system of exploitation, while Sri Lanka cited the possibility of assurances to pioneer investors in seabed mining as long as this took place in the context of balanced and comparable opportunities for development by all concerned.

Environmental Policy and Law, 6 (1980)

Related Conference Developments The Federal Republic of Germany became the fourth candidate offering to house the International Tribtmal on the Law of the Sea. It added Hamburg to the list of locations (Fiji, Jamaica and Malta), already proposed. It was agreed that the Conference should take a decision on the matter at its next session. Zimbabwe was welcomed as the 163 full participating nation invited to the Conference. Altogether 143 delegations took part in the Geneva session (A/Conf. 62/105 28 August 1980).

in the agreement on a 'Committee I package'. Fostered by the efforts of Committee I Chairman Engo, Tommy Koh of Singapore, Satya Nandan of Fiji and Harry Wtinsche of the German Democratic Republic, this package covers decision-making procedures in the Executive Council of the proposed International Seabed Authority, including procedures for approval of mining applications and for allocation of authorized production during the interim period when a production ceiling applies, the production policies themselves, financing of the Enterprise, transfer of technology, and the distribution of benefits from seabed mining. General Overview Weeks three and four of the session Negotiations at the Geneva meeting proved a frustrating waiting game as a took place primarily in two forums: few key players representing the differthe Working Group of 21 on deep seabed ent regional groups - Asia, Africa, Eastmining matters, chaired by Paul Engo of ern Europe, Latin America and the Westthe United Republic of Cameroon, and ern European and Other group - barthe Informal Plenary on general provitered back and forth on a final package. sions, dispute settlement and final It took five corrigenda and two addenda clauses, chaired by President Amerato the original compromise document singhe, Sri Lanka. The Drafting Combefore participants were willing to submitted under Ambassador Beesley and mit it for judgment to the regional groups its language working groups continued meeting throughout the five-week period. and to the Group of 77 developing naCommittees II and III met solely to con- tions. When the only formal meeting of the Committee I finally took place from sider recommendations from the Draft10:45 pan. to 12:50 aan. on Saturday ing Committee on the texts produced morning of the fourth week of the sesby these committees, chaired respectively sion, it was with a great deal of relief by Andres Aguilar of Venezuela and that participants heard E. K. Wapenyi, Alexander Yankov of Bulgaria. AddiChairman of the Group of 77, state that: tional consultations took place among "While the members of the Group 77... interested parties on a few additional have not unanimously endorsed the conproposals for changes in texts. tents of the recommendations and the Following three prolongations of the package deal .... the Group itself will negotiating sessions, the scheduled gennot object to the collegium and the Preeral debate finally took place from Ausident using that text...as a basis for gust 25 to 27. Each of 120 speakers exany revision that may be incorporated pressed their views on the proposed reviin the new text". He added that "We sions to the ICNT/Rev. 2 within a tenhave left the door open for members of minute time limit. This period was rethe Group of 77...to make reservations duced from the originally-scheduled or make separate interventions at an ap15 minutes in order to allow time for propriate stage, and we will refrain from the collegium of the Conference - comgoing into details at this stage". posed of President Amerasinghe and the The most crucial element of this Chairmen of the three main committees - to decide what should go into the package is the new decision-making procedure in the Council which assigns one third and final revision of the texts and of three voting tiers to each substantive for the production of the ICNT/Rev. 3 decision it must take. These tiers are a so that delegations could have it in hand 2/3 majority vote of those present and as they left Geneva. voting, a 3/4 majority of those present and voting, or a decision by consensus. COMMITTEE I The consensus procedure proved most difficult for many developing nations to (A/Conf. 62/L. 62, 26 August 1980; A/Conf. 62/C. 1/L. 28 and Corr. 1 & 2; A/Conf. 62/L. accept, since it represented, in their view, a "disguised veto". Yet in a most elo28/Add. 1 & Corr. 1; A/Conf. 62/WG. 21/3 & Corr. 1-5 and Add. 1 & 2) quent statement addressing this view, The most significant accomplishments Ambassador Nandan of Fiji commented that: of the Geneva meeting undoubtedly lie 119

"The traditional veto is a system of voting in which the power is given to a few powerful nations to defeat any substantive proposal by casting a negative vote. The consensus procedure is entirely different. It envisages no voting. It is based upon a different philosophy, which is deeply rooted in many cultures in the Third World. It is similar to the panchayat of the Indian sub-continent, the musjawarah of Indonesia and the cultural preference of the peoples of the South Pacific. Under this philosophy people are encouraged to take account of one another's views and interests and to accomodate on another's needs. In fact, in Fiji and in the South Pacific we call it the 'Pacific way', which, coincidentally, is the same as the 'peaceful way'." Consensus in the new LOS texts is defined as the "absence of any formal objection". The President of the Council has 14 days to determine whether any objection exists to a proposal. If so, he is to constitute a conciliation committee of not more than nine members and report to the Council within 17 days. If consensus is still not forthcoming, the committee must set out in its report the grounds for objection to the proposal. Ambassador Winston Tubman of Liberia stressed that this public exposure of any objection would operate to discourage nations from arbitrarily obstructing the Council's decision-making. Without going into detail on which decisions are subject to which level of majority vote, it should be pointed out that, in the words of Dr. Barton Scotland of Guyana, the new decision-making procedures are in fact "almost byzantine". A series of cross-references subject a much larger number of decisions to consensus procedures than the three actually listed in the texts. Those specified are: (1) the adoption of recommendations from the Economic Planning Commission with regard to measures to protect land-based producers from adverse effects of seabed mining; (2) the adoption of amendments to the seabed mining portions of the texts (see comment under 'Review Conference', p. 121); (3)the adoption of recommendations to the Assembly on sharing of benefits from deep seabed mineral development and from offshore oil development; and the adoption of Authority rules, regulations and procedures on prospecting, exploration and exploitation, financial management and the internal administration of the Authority, pending their adoption by the Assembly. 120

Yet there are a large number of uncited items which are meant to be covered by the rules, regulations and procedures of the Authority. These include decision-making procedures in the Economic Planning Commission and in the Legal and Technical Commission, Authority and Enterprise staffing rules, the amount and adjustment criteria for funds required by the Enterprise for its first integrated operation, a schedule for loan repayment by the Enterprise, and criteria and procedures for implementing state sponsorship requirements for nations sponsoring deepsea miners. Another 'byzantine' though crucial element in decision-making is the approval process for plans of work to mine the international seabed area. Upon a recommendation from the Legal and Technical Commission, whose technical competence has been re-emphasized, the Council then considers the application. A positive recommendation from the Commission can only be overruled by consensus, subject to the conciliation procedures described above. A sponsoring state may not take part in this decision. An additional safeguard permits the Council to overrule a negative recommendation or the absence of a recommendation within 60 days by a 3/4 vote. In addition, the grounds for rejection of an application must clearly be based on technical criteria spelled out in the texts. These provisions should go a long way toward alleviating the fears of the developed nations that the applications will be rejected for some arbitrary reason. A second step in the approval process is the production authorization within 5 years of the planned commencement of commercial production. Only at that point might a selection among applicants become necessary, should combined applications for a production authorization exceed the temporary ceiling. By clearly separating application qualification and approval from a later authorization for production, the new texts both ensure that selection among applicants for the production authorization will not disqualify an applicant per se, while at the same time reassuring the land-based producers that the application approval process will not lead to excessive seabed production and reassuring developing nations that the Enterprise will not be shut out from development opportunities due to tying up of permissible production by earlier applicants. The new provisions on decisionmaking also require that any decisions

not specifically allocated to one or another tier in the Council can only be so allocated by a consensus decision. The selection of Council members is now the responsibility of the 'caucus' of those nations which qualify for membership within a given category of special or regional interest. Several delegations requested clarification on this provision. On the debate as to Council composition, the 'potential minerals producer' category has now been added to the list of 'special interests' among developing nations. The small and medium-sized industrialized nations continue to insist that the texts be altered to provide them a possible category for membership. These nations point out that they will have to provide about 7.8% of the contributions due the Authority and the Enterprise, yet under existing texts it might be many years before they could qualify for Council membership. Chairman Engo has indicated that this subject will be considered at the next session, although those nations involved in the Committee I package compromise adamantly refuse to countenance any change in these texts which would upset the compromise. In the final debates Greece requested that 'maritime interests' be included in the list of special interests as well. Production Policies Though still objected to by a few nations in the Conference, the basic compromise reached at the last session on a 3% floor to the production ceiling and the safeguard (see Environmental Policy & Law, 6 (2) 1980, p. 69) remains unchanged. A new text provides for measures in addition to compensation alone as a means of protecting developing nation land-based producers from adverse effects on their economies due to seabed mining. Another addition has been included to meet the concerns of developing nations that they will lose access to mineral markets once developed consumer nations begin producing from the seabed. This provision does not go as far as desired by some producer nations, which argue that minerals produced from the seabed should be considered as imports and subject to the same import taxes or restrictions as might be imposed on production imported from land-based sources. Australia, in particular, remains concerned with obtaining a clause in the treaty which prohibits subsidization of seabed mining activities by mining states. Environmental Policy and Law, 6 (1980)

The developed nations have finally succeeded in obtaining provisions in the texts which specify that any commodity conference in which the Authority participates must represent all interested parties, including both producers and consumers, and which leave open the extent to which the Authority alone shall represent seabed production. New provisions also address the promotion of seabed mineral development.

Anti-Monopoly The anti-monopoly provisions in the texts continue to apply solely to non-

the period of time during which a contractor is obliged to sell technology on fair and reasonable commercial terms and conditions. Obligations now last for 10 years following the commencement of commercial production by the Enterprise. Obligations of contractors to obtain legally binding and enforceable rights to transfer technology from thirdparty suppliers have been emphasized, while the possibility of black-listing sanctions against operators who do not comply with the obligation to transfer technology from third party suppliers has been eliminated. A safeguard from the

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Distribution of Benefits .,,i/

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RESERVES

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Courtesy: Welter and Exhibition "Mensch uncl Umwelt"

reserved areas, although slightly altered wording enhances this goal in the selection process among applicants for production allocations.

Review Conference Changes or modifications in the system of exploitation agreed by the Revview Conference are to be treated as amendments to the Convention. Twothirds of the States Parties to the Treaty must ratify these amendments after which an extended period of 12 months must ensue before they enter into force. Previously agreed provisions prevent these amendments from affecting rights under existing contracts. What is not clear is whether these amendments will be subject to the new decision-making and amendments procedures whereby the Council of the Authority must first approve them by a consensus decision. There seems to be an understanding that this is not the case, however.

Transfer of Technology These texts have been altered in favor of the developing nations. They extend . Environmental Policy and Law, 6 (1980)

tial shortfall in Enterprise financing. The Assembly must confirm these by consensus. An additional change in the Enterprise financing provisions calls on the Governing Board of the Enterprise to develop a schedule of the magnitude and timing of required funds. It shall then cash states' promissory notes covering their interest-free contributions and draw on debt guarantee contributions as needed, rather than requiring states to provide all their interest-free and interest-bearing obligations at the outset. Finally, rules, regulations and procedures will have to be adopted with regard to the repayment of loans to the Enterprise.

developed nations point of view limits this obligation should it entail substantial costs to the miner. Nevertheless, the Enterprise may agree to pay the costs. The US continues to object strongly to obligations to sell technology to developing nations as well as to the Enterprise. Developing nations continue to insist that obligations to transfer processing and marketing technology for seabed minerals be more clearly enunciated. A working definition of the term 'fair and reasonable commercial terms', proposed by the Federal Republic of Germany, has been accepted as an authentic interpretation, to be included in Conference records. Many nations had objected following the last session to the provisions on supplementary financing for the Enterprise during its early years of operation (see Environmental Policy & Law, 6 (2) 1980, p. 72). They refused to be assessed at amounts higher than normal contributions according to the UN scale of assessments. It is therefore now left to the Preparatory Commission to recommend measures for dealing with any ini-

Alterations in the provisions on distribution of benefits from seabed mineral development address both revenues from offshore oil development beyond 200 miles and those from deep seabed mining. Although "peoples" which have not yet attained full self-governing status recognized by the U.N. may receive these funds, any recommendation as to distribution is subject to a consensus decision by the Council and subsequently to a 2/3 majority vote by the Assembly. If the Assembly does not approve Council recommendations, they are to be returned to the Council for reconsideration. These changes in the texts smooth over the difficulty encountered - particularly by the United States - of distributing funds to liberation movements such as the Palestine Liberation Organization. Related to Committee I developments, the Canadian delegation raised the point that under the new decisionmaking formula, the Council would require a 3/4 majority vote to issue emergency orders in order to protect the marine environment from seabed mining activities. The Canadian spokesman added that if these endured for more than 30 days, a consensus decision would be required. He did not feel that this would promote sound environmental protection. During the final day's debate the Conference decided upon the proposal of the Philippines delegation, to request the Secretariat to prepare a study analysing the effects of aspects of the sea bed production control formula designed to protect the interests of landbased mineral producers on the one hand and mineral consuming countries on the other. Nigeria, Indonesia, Bu121

rundi, Zaire and Canada supported this request. The study would assume various startup dates for seabed production from 1985 to 1995 and several different hypothetical growth rates for nickel consumption. The Philippines suggested that annual growth rates of 2% and 3% be assumed for purposes of the study, but at the suggestion of the Federal Republic of Germany and the United Kingdom, growth rates of up to 5% are to be included. In requesting this study the spokesman of the Philippines observed that 22 States had expressed reservations on

the seabed production policy articles now included in the ICNT/Rev. 3. COMMITTEE II As stated above, Committee II held no meetings on substance. Discussion on the question of delimitation of maritime zones between opposite and adjacent states continued, to little avail. It took the first two weeks of talks to get agreement on the procedure to be followed in discussing the substantive issues. As noted above, these negotiations will continue at the next session. The provisions on delimitation submitted by Judge Manner at the end of

No Chance for the Whale ? (A report on the Meeting to Consider Revision o f The International Convention for the Regulation o f Whaling (1946)) A few years ago an initiative was promoted by certain of the member States to the International Convention for the Regulation of Whaling to seek a revision of that convention to take into account new developments in marine conservation and management since that text was adopted in 1946. In 1978 a meeting to this end was convened by the Government of Denmark and at that time it was decided that a Working Group should be established to carry out drafting work on a revised text. Portugal hosted this drafting group in November 1979, but that meeting made little progress in view of serious differences of opinion among the participants on points such as the scope of a revised convention in terms of its emphasis between whaling and conservation, whether it should embrace only whales or all cetaceans and its compatibility with the latest Law of the Sea draft text. In view of these difficulties, the Chairman of the International Whaling Commission convened a meeting in Brighton on Saturday, 19 July 1980 of all member Governments of the IWC and other Governments and organizations which attended earlier meetings on the subject, to consider whether further consideration should be given to the possible revision. This meeting was very short with essentially a tour of the table being made to hear national views about the desirability of continuing the revision effort. The interesting development in Brighton was the reversal of positions since the revision idea was first raised. At that time, "conservation" States promoted the idea as a means to further action under the Convention, while "whaling" States opposed it, correctly perceiving the initiative to be a pretext to further limit their actions. At this meeting, the two groups took the opposite positions - the "conservation" States opposed a wholesale revision (apparently because they were pleased with recent gains that had been made under the Convention such as the 1979 ban on factory-ship whaling), and the "whaling" States favoured a revision, especially to recognize complete coastal State responsibility over whales in waters under their jurisdiction, in a move said to be in line with the emerging law of the sea - despite the contrary provisions of Article 65 of the ICNT (Rev. 2). Such a revision of the IWC would effectively remove the Whaling Commission from its management role in a very significant portion of ocean space. The meeting generally concluded that although a wholesale revision might not be required, some amendment of the text would probably be desirable to take into account recent developments, and it recommended that one Government take the initiative to promote further discussion meetings. The continued lack of agreement among the Parties as to the desirability of changing the text, and to which extent, should mean that little will be accomplished in this regard in the near future. For conservationists, in view of the gains that have been made under the 1946 text, and because of other legal developments in UNCLOS and elsewhere, this would seem to be a good result. []

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the March session of the Conference were formally protested by the 29 nations on the side of 'equitable principles' as the dominant criterion in delimitation questions. Their letter is reproduced in extenso in the summary records of the Conference. (A/Conf. 62/ SR. 130, 5 August 1980). They disagreed that the texts included in the ICNT/ Rev. 2 reflected the standard of 'widespread and substantial support' required in plenary. President Amerasinghe stressed during this discussion that in no way was Judge Manner's integrity in question, rather the judgment of the collegium in including this text in the ICNT/ Rev. 2. Additional concerns voiced by nations during the general debate on Committee II matters included the need for prior notification or prior authorization for passage of warships through the territorial sea and views on a proposal originally put forward by Argentina calling for coordinated conservation measures for fish stocks which straddle economic zone and high seas areas. This was denounced by some as a measure aimed at circumscribing high seas fishing rights and hailed by others as a sound conservation proposal. The desire for representation in the Boundary Commission of special interests, in addition to geographic representation was again cited by Singapore and Bhutan. On the final day of the Conference President Amerasinghe also obtained approval for the special delimitation formula for the continental shelf of Sri Lanka as an annex to the Convention. It is not, however, included in the ICNT/ Rev. 3 issued at Geneva. The Conference agreed to include in the Final Act of its Caracas session a text negotiated under Committee II auspices, intended to enable Sri Lanka, because of its special geographical circumstances, to draw its continental shelf boundary further from its shoreline than the general formula for defining the outer limits of the continental shelf would allow. COMMITTEE III (A/Conf. 62/L. 61, 25 August 1980); A/Conf. 62/C. 3/SR 45, 19 August 1980; A/Conf. 62/ C. 3/L. 34 and Add. 1 and 2) Committee III meetings on the recommendations of the Drafting Committee aroused some disagreement among participants on both the substantive nature of some of the recommendations and on the procedure whereby some drafting changes were presented by indi-

Environmental Policy and Law, 6 (1980)

~dual delegations to the chairman of the committee. In the end, a number of recommended changes were accepted by the Committee and included in the ICNT/Rev. 3. In addition, during the general debate several nations mentioned the need for organized assistance to developing nations in the fields of marine scientific research and marine development generally. Informal Plenary (A/Conf. 62/L. 60, 23 August 1980 & Corr. 1; A/Conf. 62/L.59, 23 August 1980; A/Conf. 62/L. 58, 22 August 1980)

The discussions in the informal plenary chaired by President Amerasinghe addressed general provisions to the Convention, some outstanding matters related to dispute settlement, and the final clauses of the Convention. The general provisions incorporated into the ICNT/Rev. 3 cover good faith discharge of obligations under the Convention and the exercise of rights and responsibilities so as not to abuse rights. They also deal with peaceful uses of the seas, and the denial of any obligation to disclose information contrary to security interests. Additional general provisions permit coastal nations to control the removal of archaeological objects and objects of historical origin found within their 24mile contiguous zones and state that responsibility and liability provisions in the Convention do not prejudice existing rules on the subject or the further elaboration of such rules under international law. Within these discussions a controversial debate took place as to the status of the principle 'common heritage of mankind' as a peremptory norm of international law - j u s cogens. An acceptable compromise prohibits derogation from this principle's application to the international seabed and its resources. This provision now forms part of the final clauses as they address the relation of the LOS Convention to other conventions and international agreements. The original formulation of the fus cogens proposal could well have carried implications both for the legality of unilateral seabed mining legislation and with regard to the application of the principle to other areas. The dispute settlement discussions resulted in some re-structuring of the texts in order to better coordinate them. References to compulsory submission to conciliation procedures are now grouped

Environmental Policy and Law, 6 (1980)

in onb place. This non-binding procedure applies to disputes over fisheries in the economic zone, to disputes concerning marine scientific research in the economic zone and on the continental shelf within national jurisdiction, and to disputes over boundaries between opposite and adjacent nations. Final Clauses

The Final Clauses of the Convention specify that the Convention will be open for signature for two years and that sixty nations must ratify the Convention before it can enter into force.

this should not mean that if a nation did not ratify the new convention, no account should be taken of the new law pertaining to the territorial sea, the economic zone and the continental shelf, with regard to that nation. Nations may also enter into related agreements compatible with the LOS-Convention as long as these do not affect other nations' rights and obligations and do not detract from the object and purposes of the convention. States may withdraw from the Convention on one year's notice. The amendments procedures in the ICNT/Rev. 3 have been clarified from previous drafts. The two procedures

PhotoUPI;courtesyDPA Driven ashore, dolphins line a section of beach at Katsumoto port on Japan's Iki Island February 28th. Fishermen killed about 100 dolphins contending that they were "sea bandits" that were plundering yeltowtail and squid.

No reservations or exceptions will be permitted except as specifically cited in the texts, although several nations in general debate argued that this provision was contingent on adoption of the Convention by consensus. (It is generally felt that the question of boundary delimitation between opposite and adjacent nations will be one subject to reservations or exceptions.) States may make interpretive statements at the time of ratifying the Convention which address harmonizing national laws and regulations with the Convention. The final clauses also indicate that the LOS Convention will prevail over the 1958 Geneva Conventions as between states parties. During the general debate the representative of Costa Rica remarked that

proposed last March were either to convene a conference to consider proposed amendments 10 years after the entry into force of the Convention if at least one-half of the states parties accepted this within one "year, or the simplified procedure whereby amendments circulated were considered adopted if no nation objected to them within one year. While these two options have been retained, they now apply exclusively to amendments other than those relating to activities in the international seabed area. The Secretary General of the UN is the designated recipient of proposals for non-seabed amendments. Should an amendments conference be convened, the same consensus procedures applicable to UNCLOS III will govern the adoption of amendments. They enter 123

into force for the parties which have rarifled them following ratification or accession by 2/3 of the states parties or by 60 nations, whichever is the greater number. Any amendment, however, may itself provide for a larger number of ratifications or accessions. Amendments to provisions governing activities in the international seabed area, including amendments affecting the Sea-Bed Disputes Chamber of the International Tribunal on the Law of the Sea, are now dealt with in a separate article. Proposed amendments are to be directed to the Secretary General of the Authority. They must first be approved by the Council by consensus, followed by a 2/3 approval in the Assembly. They no longer require either the convening of a Conference or circulation under the simplified amendments procedure. Amendments to these portions of the Convention require ratification or accession by 3/4 of states parties, one year after which they take effect for all states parties, not simply for those which have ratified them. (The number of ratifications or accessions required for amendments adopted by the Review Conference is specifically excepted and reduced to 2/3, as specified in the article on the Review Conference.)

ing the horse shy before it can enter the stable. President Amerasinghe appealed finally to the delegates: "We have now come very near to completion of the package and we must restrain ourselves in attempting to take away from it or alter it in any respect, which would destroy the sense of it. I am quite sure that everyone agrees he has not got everything he desires in the text as we have it at the moment, but I am sure that when you look at it as a whole you will realize that you had to give something up in order to get something else". Although it cannot be discarded that the "heavy hand of the Super-Powers" was felt from time to time during the mostly private negotiations, it must be admitted that these negotiations at Geneva led to a broad agreement on a package of proposals for the future management of deep seabed mining in the area beyond national jurisdiction. The key solution lay in finding a formula (threetier-system) for decision-making in the Council which may prove unique for international organisations later on.

This three-tier-system combines two ideas: "that different kinds of issues should be decided by different majorities, and that the most sensitive of these should be decided by consensus, defined as "the absence of any formal objection". Three lists of substantive issues have been worked out: "one for decision by a two-thirds vote, one by three-fourths and one by consensus. A special conciliarion committee would be set up when necessary to promote consensus". No doubt, a breakthrough was achieved at Geneva and the threshold of a convention was reached. Hopefully, negotiations can be wrapped up at the 10th session and a task concluded so many worked so long and so hard for. If the developing and developed countries and all the various interest groups of East and West muster their combined strength and political will to ensure that the "valuable and temperamental convention-horse" will not shy at the last moment, and lose its temper over the possible "stings of the dissatisfied", the delegations may be able, by holding the reigns tight, to make the horse jump the threshold it still may fearfully shun. []

A/Conf.62/WP.10/Rev.3 (ICNT/Rev.3) + Add.1 + Corr.1. A/Conf.62/WP.10/Rev.2 (ICNT/Rev.2) + Corr.1--5. Press Releases SEA 399; SEA 111-137. A/Conf.62/WS/9. A/Conf.62[C.1/L.28/Add.1/Corr.1 + 2.

CONCLUSIONS Retrospectively it seems a surprise to many that this mammoth conference had actually managed in the second part of the 9th session not only to transship such a large number of formidable conference-wrecking obstacles as the unilateral interim Deep Seabed Mining Legislation of the US and FRG but also to produce a session which the President of the Conference described as "the most productive of all", resulting in a further revision of the text (ICNT/ Rev. 3). Ambassador Richardson named it "the most significant single event in the history of peaceful cooperation and the development of the rule of law since the founding of the United Nations itself". Many others called it simply a "breakthrough", which will for certain result in a text of a convention ready for signature in Caracas in 1981. But, no doubt, thele will be a difficult final stage of deliberation and negotiations ahead, at which it will be imperative to preserve the Package and protect it from disintegration by reopening issues, which if done, would "merely result in pricking the balloon" and mak124

A/Conf.62/C.3/L.34 + Add.1 + 2. A/Conf.62/L.46, L.47 Corr.1, L.48/Rev.1; L.49/Add.1/2, L.50, L.51 + Corr.1; L.52 + Add.l; L.53 + Add 1; L.54, L.55 + Corr.1, L.56 + Corr.1; L.57 + Rev.1; L.58, L.59, L.60 + Corr.1; L.61, L.62, L.63. A/Conf.62/BUR 13 + Rev.1 + Rev.1. A/Conf.62/BUR/SR.54, 55, 56. A/Conf.62/SR.130,131,132, !33. A/Conf.62/98-105. A/Conf.62/WG.21/3 Add.1 + 2 + Corr.l-5. WG.21/Informal Paper 10-12. Informal Paper 4/Rev.2, 11, 12, 13 + Rev.1, 14, 15 + Rev.1. CA/Informal Meeting/54/Rev.1, 63,64 + Rev.1,65. FC[20, 21 + Rev.1 + Add.1. SD/3 + Add.l, 4 + 4/1. ELGDC/4. SLGDC/4/1. CLGDC/2. GP/5-11. NEPTUNE No. 17, August 1980. US: Deep Seabed Hard Mineral Resources Act, Public Law 96-283 (28 June 1980). FRG: Act on the Interim Regulation o f Deep Seabed Mining, Entwurf eines Gesetzes zur vorl~/ufigen Regelung des Tiefseebergbaus, Drucksache 8/2363 & 8/4359, July 1980. See also p. 134 Statement in Plenary, by Alan Beesley, Canada, Aug. 26, 1980. Letter of 26 Aug. 1980 addressed to the President of the Group of 77 by the President of the Group of Legal Experts on the question of Unilateral Legislation together with "Legal position of the Group of 77 on the question of unilateral legislation concerning the exploration and exploitation of the seabed and ocean floor and subsoil thereof beyond national jurisdiction". A preliminary Analysis of the World Distribution of Subsea Metal-rich Manganese Nodules, by V. E. McKelvey & Nancy A. Wright, US-Geological Survey. A Nov. 1979 up-date of the 1977 study entitled Technological & Economic Assessment of Manganese Nodule Mining & Processing, has been prepared for the U.S. Dept. of the Interior by A. D. Little, Inc. of Cambridge, Mass. It summarizes the status of manganese nodule mining and processing technology as of late Summer 1979 for each of the five major deep seabed mining consortia, analyzes the economies of mining and reviews the competitive position of ocean nodule mining vis-a-visworld manganese & nickel markets.

Environmental Policy and Law, 6 (1980)