Brazil at the third United Nations conference on the law of the sea

Abstract

As Brazil began to emerge as a major power in the years leading up to theThird United Nations Conference on the Law of the Sea (UNCLOS III), national ocean policy came to have a quite continuous, distinctive impact on global law of the sea negotiations. Brazil's participation at UNCLOS III offers a particularly good vantage point from which to analyze its more prominent international role as an emerging major power, its related growth as a maritime power, and its significant contribution to international organization.

UNCLOS III, in turn, affects Brazil. The broad implications of the emerging ocean order for both national and international jurisdiction issues, within which Brazilian ocean policy must operate, are analyzed. Brazil's distinctive position as an emerging power between the industrialized countries and the Third World has conditioned its involvement at UNCLOS III. As a developing state, Brazil has favored revision of the traditional order for the purpose of redressing the balance with the developed states. At the same time, as an emerging power, Brazil has an interest in supporting a stable, open international order. In spite of such policy dilemmas, Brazil stands out as one of the few big potential winners in the Third World from both the seabed and non‐seabed portions of the law of the sea negotiations.     

UNCLOS III and the new international economic order

Abstract

The New International Economic Order has become an all pervasive issue in contemporary international relations and is being discussed, debated, and considered in a number of international organizations and negotiations. Representatives of the Third World have demanded under its banner significant changes in the world's political and economic structure. It is in this context that the Third United Nations Conference on the Law of the Sea has been meeting.

This study focuses upon the protracted negotiations on seabed mining and seeks to relate continuing North‐South differences to broader trends in international relations. It examines, in light of pressures for a New International Economic Order, disagreements relative to: a) access to seabed resources, b) the resource and commodity policy of the proposed International Sea‐Bed Authority, c) financial arrangements for deep seabed mining, d) transfer of technology, and e) the organizational structure of the International Sea‐Bed Authority.     

The role of African states in the development of the law of the sea at the third United Nations conference

Abstract

This interpretation of the role of African states in the development of the law of the sea at UNCLOS III analyzes relevant economic and political factors behind policy decisions. First, an analysis is made of the economic factors. The African states are developing states and share the common problems of lack of financial resources, dependence on raw material exports, and lack of managerial and technical skills. As members of the Group of 77, they adopt a common approach to the powers of the International Sea‐bed Authority, the economic zone, scientific research, and transfer of technology. However, there are great divergencies among the African states in natural resources and rate of development; divergent interests have emerged between the coastal states and the landlocked ones, and these differences are reflected in negotiating positions. The major political element dominating the approach of the African states is the colonial heritage of the great majority and their becoming independent in the period between the 1958/60 Conferences and UNCLOS III. This common political background has contributed to the strong cohesion of the African Group and its adherence to a group position throughout the negotiations, despite the divergent economic interests of individual states.

The positions of the African states are analyzed in depth, from the Sea‐bed Committee through the 6th Session of UNCLOS III. One of the major contributions made by the African states to the law of the sea is the development of the economic zone concept, which is essentially different from the extension of the territorial sea proposed by some other developing states, and from the continental shelf concept. The African provision made for participation by landlocked states in access to the living resources of the zone is also an important innovation, which promises a radically new approach to resource management. Finally, the impact made by the African states is examined in the context of the development of a New Economic Order. The law of the sea is seen as one aspect of the global problem of allocating benefits from world resources towards the developing states, and redressing the balance between the industrialized and the developing nations.     

Canadian perspectives on seabed mining: The case of the production limitation formula

Abstract

This paper will analyze the position Canada took on seabed mining in the Third United Nations Law of the Sea Conference (UNCLOS III). Canada is a major land‐based producer of nickel, an industrialized country with private interests in seabed mining, a NATO member, a major ally of the United States, and a country with extensive ties to less‐developed countries. At UNCLOS III Canada was concerned primarily about the management and control of its coastal resources and the protection of the marine environment. After having secured these interests, Canada emerged as the leader of the land‐based mineral‐producer group advocating production controls on seabed mining. The production limitation formula was one of the major reasons for the United States’ decision not to sign the Law of the Sea Treaty. In so forcefully advocating a production limitation formula, the Canadian delegation relinquished Canada's potential as a middle power to bridge the gap between the Group of 77 and the Western industrialized countries in order to formulate a widely acceptable regime to govern the seabed. A production limitation formula was not in Canada's best interests, given her potential role in seabed mining, and was rejected by officials in the Department of Energy, Mines, and Resources, as well as the Canadian private sector.     

Looking back to see ahead: UNCLOS III and lessons for global commons law

The Third United Nations Conference on the Law of the Sea (UNCLOS III) provides valuable lessons for future formulation of law to govern global commons, areas that lie beyond the limits of national jurisdiction and to which all peoples have free and open access. Although endowed with the advantage of a certain degree of scientific certainty about the need for regulation of the ocean environment, UNCLOS III fell victim to a North‐South schism that impaired the search for consensus on important issues and undermined the final product of the negotiations. An examination of the UNCLOS III experience suggests that agreements that exclude specially affected states are unlikely to succeed, and points to a variety of advantages and disadvantages that come from linking several issues under one negotiating framework. The consensus approach to negotiation used at the Conference tends to expand the time and effort needed to reach a successful outcome, which can lead the negotiations themselves to be outstripped by technological or political developments. Finally, the UNCLOS III experience underscores the importance of global ideological and philosophical differences on the allocation of resources and environmental responsibility. Given these lessons, alternatives to the “parliamentary diplomacy”; strategy used at UNCLOS III are suggested, including a framework‐plus‐protocols approach, international coordination of national plans, regional arrangements, and strictly unilateral actions. While the comprehensive parliamentary diplomacy approach is useful because it recognizes the interconnectedness of ecosystems, in many situations one of the other approaches may increase the chance for a successful outcome. Whichever method is chosen, there is an emerging global recognition of the need for some action to be taken by the world community in combatting the destruction of the world's commons areas, which may be a positive sign for the future of environmental negotiations of this sort.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

Management of the ocean's living resources: An essay review

Abstract

The Third United Nations Conference on the Law of the Sea (UNCLOS III) focused primarily on the peaceful uses of ocean space. Although security issues were and are involved in many peaceful uses of ocean space, they were not explicitly addressed at UNCLOS III nor covered in the U.N. Convention on the Law of Sea. Since security issues are among the major neglected issues of ocean space, it is the purpose of this article to open the discussion of the legal and political aspects of these issues as relating to the law of the sea.     

Peacetime military activities in the exclusive economic zone of third countries

Abstract

Although the 1982 U.N. Convention on the Law of the Sea reaffirms the freedoms of navigation and overflight in the Exclusive Economic Zone (EEZ), its language is flexible enough to be construed as restraining military activities of third countries in the zone. On the other hand, the Convention allows enough latitude of interpretation to include the right to conduct naval activities in a foreign EEZ. The peaceful‐purposes clauses of the Convention do not, in this respect, create any new obligations beyond the obvious general principle of banning the use of force in international relations. The reluctance of UNCLOS III to adopt a clear and unambiguous solution of the problem is likely to result in disputes between naval powers, primarily developed states, and coastal states of the Third World over the attribution of rights to military uses of the EEZ, especially with regard to naval maneuvers, weapon tests, and emplacement of military devices in this zone.     

The exclusive economic zone and public international law

Abstract

This paper will set the international background for the evolution of the Exclusive Economic Zone (EEZ) concept in international law and in state practice. It will review the relevant provisions of the UNCLOS III and will discuss the extent to which they have or are likely to guide national practice in the future. The paper will also examine the Reagan Proclamation from an international legal perspective, as well as the possible impact of action taken by the United States in fashioning its EEZ on the stability of the EEZ concept internationally.     

Fishing negotiations at the Third United Nations Conference on the Law of the Sea

Abstract

One of the major consequences of the negotiations at the Third United Nations Law of the Sea Conferences (UNCLOS III) was a substantial reduction of the international commons in which the freedom to fish existed and the creation of what was supposed to be a sui generis zone, the 200‐mile exclusive economic zone (EEZ), but within which the coastal state would have a virtual monopoly on the right to allocate resources. How this was done at UNCLOS III is analyzed using a model that shows the progress over time on major issues of the parliamentary‐diplomatic‐style negotiation in which consensus was required for an acceptable outcome. The shifting positions of major states and bargaining groups as they maneuvered toward consensus is examined on the questions of the creation of the 200‐mile EEZ, the rights of foreign fishermen in the EEZ, the fishing rights of geographically disadvantaged states in the EEZ, and the management of highly migratory species. The analysis shows that the new ocean regime, created through complex tradeoffs and strenuous issue‐by‐issue bargaining, was critically influenced by fisheries issues.     

Municipal legislation for exploitation of the deep seabed

Abstract

This study traces the evolution of municipal legislation for the deep seabed in the United States of America and the Federal Republic of Germany, and considers what the United States seeks to gain and what it may possibly lose through its recent enactment of the Deep Seabed Hard Mineral Resources Act. The study concludes that the Deep Seabed Hard Mineral‐Resources Act will ensure for the United States that the minerals of the deep seabed are (if they can be) available when needed, and will strengthen the negotiating position of the United States in UNCLOS III vis‐à‐vis a proposed seabed regime which it perceives as inefficient toward the development of manganese nodules, and unacceptable in the system of governance it promotes. Passage of the Act, it is concluded, will probably not result in a breakdown of the Law of the Sea negotiations. It is thought it will give rise to a legal challenge, the outcome of which is difficult to predict. Finally, it is asserted that political/economic opposition to the Act will be mitigated by the reasonableness of the Act, its provision for delayed implementation, and the desire of many nations to conclude a successful Law of the Sea Treaty.     

Effective Protection of the Marine Environment and Equitable Benefit Sharing in the Area: Empty Promises or Feasible Goals?

abstract

The international legal framework with regard to “the Area,” comprising the deep seabed and the subsoil beyond the boundaries of national jurisdiction, has been modified significantly through the years. It was first established by part XI of the United Nations Convention on the Law of the Sea, but the 1994 Implementation Agreement introduced several changes. These general rules and principles are further developed in the “Mining Code,” referring to the comprehensive set of regulations and procedures issued by the International Seabed Authority. The Authority has already produced rules for the first phases of mining activities (prospecting and exploration) in the Area, but has yet to adopt exploitation regulations. Nevertheless, the most recent draft of the exploitation regulations provides a good indication of the current state of play. This article analyzes the current draft of the exploitation regulations, which will shape the future deep seabed mining regime, in order to evaluate whether the relevant provisions are sufficient and effective to attain two prominent goals with regard to the Area: the protection of the marine environment and the equitable sharing of financial and economic benefits. The Law of the Sea Convention indeed states that the resources of the deep seabed are considered common heritage of mankind and prioritizes these objectives. Therefore, the exploitation regulations should strike an appropriate balance between commercial exploitation, environmental protection, and the interests of developing countries. The strengths and weaknesses of this document and the overarching international legal framework are identified and possible corrections are suggested.     

An interpretation of the Geneva proceedings—part I

Abstract

This interpretation of the second substantive session of the Third United Nations Conference on the Law of the Sea is based on observations of the Plenary, General Committee, Committees I, II, and III, and their Working Groups from 7 April to 9 May 1975 in Geneva. The observations are supplemented with information derived in multiple interviews with sixty‐seven delegates from twenty‐nine delegations. Part I of the paper describes general characteristics of the Geneva negotiations and compares them with the first round of substantive negotiations held in Caracas in 1974. There was much less rhetoric used in Geneva as compared to Caracas, especially in Committee I. Also in Committee I, the Algerian delegation succeeded within the Group of 77 in their initiative to link the seabed issue with the problem of control over global commodities in the context of claims to establish a New Economic Order. The negotiations in Committee II were seriously affected by the absence of effective leadership and the proliferation of small negotiating groups without links between them. Moreover, within Committee II the tension between the coastal states and the “Disadvantaged Group”; within the Group of 77 increased almost to the point of rupture.

As negotiations proceeded in Committee I, the gap between the advanced industrial countries and the Group of 77 widened on a number of crucial issues. This gap increased to the point where delegates from the Group of 77 were privately arguing that the seabed issue had been added to the issue of the Economic Zone as the price for the major maritime countries securing their preferences on the issue of unimpeded passage through straits used for international navigation. The Informal Single Negotiating Text, Part I, which was distributed at the end of the Geneva session, was different in several important respects from the text on which a consensus had been privately negotiated. This stimulated the expression of views within the delegations of several advanced industrial countries that the price of agreement on a treaty was currently too high.     

The basic structure of the disputes settlement part of the law of the sea convention

Abstract

The Draft Convention on the Law of the Sea contains an elaborate and unique system for the settlement of disputes concerning the world ocean that is both flexible and firm. The evolution and development of this disputes settlement system began later than the work done in Committees I, II, and HI, of the Conference and was largely due to the initiative and leadership of Hamilton Shirley Amerasinghe, President of UNCLOS III. The major features of the emerging disputes settlement system are: a general and comprehensive system including adjudicatory procedures; a multiplicity of forums for disputes settlement with concurrent attempts at maintaining some uniformity in the jurisprudence of the law of the sea; adoption of a flexible system which permits states the choice of mode or venue for settlement; abandonment of the original idea of a separate and special “Sea‐Bed Tribunal”; the decision of the Conference to make disputes settlement an integral part of the Convention; the emergence of the compulsory resort to conciliation for disputes in the EEZ; and the designation of categories of disputes which may be submitted only to the Sea‐Bed Disputes Chamber.     

The European economic community and the law of the sea

Abstract

The European Economic Community (EEC) has the competence, to the exclusion of its Member States, to conclude international agreements in important fields, such as fisheries, on which the draft convention on the law of the sea contains provisions. Contracting parties to the future Law of the Sea Convention will not be allowed to make reservations to the convention or participate in it on a partial basis. It follows there‐from that provisions must be envisaged which would allow the EEC to become a contracting party to the convention together with its Member States. This article outlines the legal background for participation by the EEC in international agreements and indicates the main provisions of interest to the EEC in the draft convention prepared at UNCLOS III.     

Developing nation imperatives for a new law of the sea: UNCLOS I and III as stages in the international policy process

Abstract

This paper seeks to compare the two major law of the sea conferences of the post‐World War II period in terms of imperatives for moving toward a more equitable international system. Transitions in the international system which have taken place in the years between the conferences are analyzed, as well as differences in conference participation and procedures. The paper then focuses upon the necessity for policy to be formulated in such a way that imbalances in opportunities for utilization of the seas are redressed. Special attention is given the status of the landlocked and geographically disadvantaged states. The 1977 Negotiating Text is commented on from this perspective. Proposals for development of ocean law/policy in UNCLOS III more congruent with achievement of global equity are then set forth.     

Assessing the state of the art in national ocean policy studies

Abstract

For over a decade the nation‐states of the world have been redefining the legal and political status of the world's oceans, both unilaterally and in multilateral negotiations. Despite the growing importance of ocean policy, we know too little concerning what are current nation‐state marine interests, how they make their marine related decisions, or how they organize themselves for marine policy. This paper was written as an organizing paper for a workshop to assess the state of the art in national ocean policy studies. It was sponsored by the Marine Science Affairs Program, International Decade of Ocean Exploration Office, National Science Foundation. The paper states the goal of the workshop, it defines the terms of reference, such as public policy, public policy analysis, comparative public policy analysis and national ocean policy; it offers a “systems”; influenced model for the evaluation of national ocean policy, and it identifies the state of our knowledge of the various components of national ocean policy by performing a computer‐based survey of the literature. Some 5,000 studies were examined and reduced to 1,000 relevant items. Highlights of the findings show that: 1) we know most about the output stage of ocean policy, less about input, little about process; 2) we know most about bureaucratic ocean decisions, less about legislative, little about judicial ocean decisions; 3) output studies rose and declined, input studies have increased steadily, and process studies may show a sharp rise; 4) we know most about the United States, Japan, and the USSR, less about Western Europe, little about the Third World; and 5) most of the studies were conducted by those using “traditional”; research tools.     

Doing the City from the Margins: Critical Perspectives on Urban Marginality*

ABSTRACT

This special issue focuses on urban marginality in diverse contexts across the world (Africa, Latin America, Arab States and Europe) and proposes anthropological perspectives on contemporary urbanity that take into account the complexity of the social positions of those city dwellers that are on the margins. Three aspects of urban margins come to the fore. First, urbanites respond to increasing marginalisation through the production of alternative meanings and narratives about the city. While grand, powerful narratives may present cities as ‘divided’, ‘dual’ or ‘conflicted’, urban dwellers may carve out symbolic space through discourses of the non-spectacular and non-political, emerging out of lived space. Second, the cuts and frictions constituting urban margins do not only limit urban dwellers capacities, but can also provide spaces of agentic possibilities. As it is well known, the absence of state control can be turned by versatile urbanites into opportunities of the ‘informal’ economy. Third, urban dwellers engage in manifold practices that connect and entangle their marginalised position with spaces of power and resources. Through their practices urban margins become a relation to, not a disconnection from the ‘centre’. In this special issue we understand ‘urban margins’ not as essence or entities, but as forms of relations between urban dwellers shaped by processes of political, economic, spatial and social marginalisation. Seen in this way, urban margins constitute a perspective on the urban: a lens to entice comparisons of urban agency in the world of cities [Robinson, J. 2011. “Cities in a World of Cities: The Comparative Gesture.” International Journal of Urban and Regional Research 35 (1): 1–23. doi:10.1111/j.1468-2427.2010.00982.x]].     

The tax revenue potential of manganese nodules

Abstract

Mounting interest in deep seabed mining has raised high expectations in the tax revenue potential of the future nodule industry. In the absence of any existing commercial nodule mining operation, estimates of the likely “take”; are highly conjectural. This paper develops four alternative estimates for 1985 based on sets of variables on nodule mining, mineral markets and “tax rates”; that range from conservative to overly optimistic. The resulting “take”; from these calculations range from $22 million to $I .2 billion, with the most likely actual figure between 50 and 150 million dollars by 1985.     

Follow the money: international donors,external homelands and their effect on Romani media and advocacy

ABSTRACT

While Roma are both Europe’s largest minority, there is no “homeland” state that claims to guard their interest. The lack of “an external national homeland” [Brubaker, R. 1996. Nationalism Reframed: Nationhood and the National Question in the New Europe. Cambridge: Cambridge University Press] to watchdog and safeguard their rights has a particular effect on how Roma engage as political actors and subjects. International donors/foundations have assumed the role of “external homeland”. This article explores the effect that donors’ funding priorities have on Romani advocacy – specifically Romani journalism. Drawing upon multi-sited fieldwork in five countries, extensive document analysis, and interviews, Idemonstrate that the change in Romani media content over the past two decades reflects the shift in funders’ priorities, particularly in relation to the European project. “The Roma” become a tool for donors and European institutions to build a “European” identity while Romani-led advocacy becomes increasingly marganilized.