The effect of extended coastal state jurisdiction over the seas and seabed upon marine science research

Abstract

UNCLOS III is a revolution not only in international law and the law of the sea, but also in the relationships between the North (developed world) and the South (developing world). New concepts such as the “Common Heritage of Mankind”; and the “Exclusive Economic Zone”; are being developed along with such new institutions as the International Seabed Authority. The Third World, numbering about 122 states, has been in the forefront of this revolution at UNCLOS III, and in the collateral effort to develop a New International Economic Order. The exploitation of the manganese/polymetallic nodules on the surface of the deep seabed has been a major focus of UNCLOS III, and the positions of the Group of 77 (Third World), the Soviet Union and Eastern Europe (Second World), and the United States, Western Europe, and Japan (First World), are carefully set forth and compared in this article. The differences between the three positions are substantial. It is hoped, however, that a workable system for exploiting the deep seabed and sharing its wealth can be found.     

The international sea‐bed authority without U.S. participation

Abstract

This paper focuses on the political dynamics of the International Sea‐Bed Authority‐on what is likely to happen if and when the Law of the Sea Treaty comes into effect without U.S. participation in the development of an international organization intended to be universal and permanent. The author has drawn heavily on his experience as Permanent Representative to UNESCO 1973–1977, and from service on delegations to numerous international conferences. His point of view tends to place great importance on the political role and structure of international organizations.     

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.     

United Nations involvement in ocean mining

Abstract

Developing country governments seek implementation of the New International Economic Order (NIEO) through the medium of United Nations involvement in ocean mining. To understand the debate over the Draft Treaty it is important to identify the various functions that a UN authority could perform. There is, for example, no full precedent for a joint venture in which one of the parties, the Enterprise, is an international organization. Moreover, a central question regarding the proposed Seabed Authority is whether both promotion and control of commercial activity can be performed appropriately by the same agency. The essay considers a mining regime as envisaged under the Draft Treaty and alternatively as it may be under an interim reciprocal regime in the event of nonratification. Whatever the outcome of LOS III, another alternative, incremental implementation, should be rereviewed carefully.     

The group of 77 and the establishment of the international sea‐bed authority

Abstract

The Group of 77 favors the establishment of a strong International Sea‐Bed Authority with powers to regulate and control all the activities of exploration and exploitation of the “common heritage of mankind,”; referred to in the draft articles as “the Area.”; The Authority itself is to be composed of an Assembly as the supreme policy‐making organ in which the Contracting Parties are to be represented on the basis of sovereign equality; a Council as the executive organ implementing the policies emanating from the Assembly, to be composed of at least 36 states elected to ensure representation of clearly defined special interests and the principle of equitable geographical distribution, and to eschew any form of veto mechanism in its decision‐making process; the Enterprise as the operational organ through which the Authority is to undertake direct exploitation of the Area along with the other entities given access to the Area; and a Secretariat as well as certain subsidiary bodies of the Council.

The Group of 77 takes the position that the Convention itself and the Basic Conditions governing the entire process of exploration and exploitation of the Area must leave the Authority an appreciable margin of discretion in managing the Area for the benefit of mankind as a whole. Thus, a limited category of judicially reviewable decisions of the Authority is envisaged so long as such review does not challenge the legislative powers and resource policy decisions of the Authority. A Sea‐Bed Tribunal is no longer necessary as an organ of the Authority, since the work of such a Tribunal could be done by the special Sea‐Bed Disputes Chamber of the Proposed Law of the Sea Tribunal dealing with disputes arising under the Convention as a whole.     

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.     

Deep‐sea mining between convention and national legislation

Abstract

A Draft Convention, informal rather than formal, emerged in September 1980, from the Ninth Session of the Third UN Conference on the Law of the Sea. At about the same time the Federal Republic of Germany and the United States passed interim legislation to create a legal framework for deep‐sea mining activities. If seabed mining is to be undertaken, a legal framework or “Rechtsordnung”; must be established which secures the right of access to the resources under commercially viable conditions during the operational time‐span of an industry, namely twenty to thirty years. At issue is the long‐term problem of securing strategic raw materials rather than the realization of short‐term profit. The American decision in March 1981, immediately prior to the Tenth Session, to review the Draft Treaty, has served to focus attention on the system of access, the decision‐making processes of the International Seabed Authority, the transfer of technology and the payment of fees, and the capability of the Enterprise as a seabed miner.     

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.     

Ocean mineral revenue sharing

Abstract

This article considers the importance of ocean mineral revenue sharing, from both the oil and gas of the continental margin and the manganese nodules of the deep seabed, at the United Nations Law of the Sea Conference. First the paper examines margin revenue sharing as proposed in Article 82, Informal Composite Negotiating Text. It estimates the amount of oil and gas in offshore areas, the potential value of these resources to the coastal state, the potential revenue to be shared with an international authority, and when these resources will be exploited. The paper concludes that revenue sharing from the margin will yield little if any revenue to an international authority. The article then discusses deep seabed revenue sharing. It estimates several possibilities, including nodule production by the mid‐1980s; the value of operations to the exploiting state(s)—particularly the United States; revenues to be shared with an international authority; the impact of nodule mining on land‐based producers of seabed minerals; and the uses of revenue sharing funds by an international authority. The paper concludes that revenue sharing will not exert much influence on negotiations at the United Nations Law of the Sea Conference.     

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.     

Deep seabed mining: Can an acceptable regime ever be found?

Abstract

Fourteen years of effort by the Third United Nations Conference on the Law of the Sea and its predecessors have so far failed to produce a generally acceptable regime for deep seabed mining. The present Draft Convention does contain ingenious solutions to the problems created by the unique characteristics of seabed resources, the lack of existing international law governing their exploitation, the influence of the navigation provisions, and the need to reconcile the financial requirements of miners with the expectations of developing countries. It is a remarkable achievement in view of the negotiating obstacles that had to be overcome, but the regime is cumbersome and expensive. Further improvements in the interest of simplification will have to be made if it is to be workable.     

The United States and the revision of the 1982 convention on the law of the sea

Abstract

It may now be possible to breach the 1982 Law of the Sea Convention impasse. The UN Secretary‐General's informal consultations have opened realistic discussions on the deep seabed regime. Many important changes have occurred since the Convention was signed. Dramatic developments have taken place in the international community. Nations now appreciate the limited potential of deep seabed mining. While United States reliance on customary law provides some benefits, other more important U.S. interests cannot be protected absent entry into force of the Convention with widespread participation. Many alternative procedures are available to forge an accommodation. The approach taken in the Secretary‐General's consultations is to make specific changes in deficient articles. Alternatively, the present regime might be jettisoned in favor of a framework regime. Such a regime would preserve only the essential basic policies of the Convention's seabed regime. It would contain a system for constructing a viable mining system if a deep seabed regime is needed.     

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.     

U.S. fishery negotiations with Canada and Mexico

Abstract

In the last decade, the world has witnessed a fundamental reorientation of posture toward marine resources as evidenced by consensus in the Third United Nations Conference on the Law of the Sea (UNCLOS III) and the near universal move toward fishery jurisdictions of 200 nautical miles (370 km). These and other non‐marine‐specific economic and political pressures impose a new constellation of constraints on North American fishery relations. This has resulted in disharmonies on two borders.

This paper, then, addresses the form of binational fishery negotiations between the United States and her two neighbors. One section presents a general model of the binational negotiation process. The next section introduces the institutional and political context of U.S.‐Canada relations, and then applies the negotiation model to the evolution of West Coast salmon deliberations. In a parallel fashion, the following section focuses on U.S.‐Mexico relations and the tuna, shrimp, and anchovy fisheries. The last section concludes with remarks on future directions for North American binational fishery relations.     

Science,sovereignty, and the third law of the Sea Conference

Abstract

The international law of marine scientific research is currently in flux. Efforts are under way at the Third Law of the Sea Conference to produce a treaty that, among other things, would make the law of research more uniform and certain. Sortie areas of disagreement certainly still exist in the Conference negotiations. Nonetheless, the negotiations have produced proposed treaty provisions concerning the law of research that have met with substantial approval. At this point, it does not appear likely that the Conference will produce major alterations in the main body of these provisions. These proposed treaty provisions indicate the future direction the law of research will take. Even if a workable treaty does not result from the negotiations, these provisions will undoubtedly inform customary international law. This article examines both the areas of agreement and the areas of disagreement at the Third Law of the Sea Conference in an effort to understand the probable future legal regime under which marine scientific research will be conducted.     

Legal regimes for seabed hard mineral mining: Evolution at the federal and state levels

Abstract

During the last decade U.S. government and industry interest in seabed hard minerals has shifted from areas beyond national jurisdiction to those within national jurisdiction. A variety of factors—technical, economic, political, legal—are behind this trend. This article focuses on the legal aspects of federal and state efforts to encourage and regulate seabed minerals exploration activities, prospective avoidance of conflicts between seabed mining and other ocean uses, federal‐state relations in seabed minerals development, and the special situation of mineral deposits spanning the federal‐state boundary offshore.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

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.     

Deep seabed mining: A definition of the problem

Abstract

The prospects for deep seabed mining in this century appear remote. The U.N. Convention on the Law of the Sea was closed for signature on December 10, 1982. As of that date, 155 nation‐states and four entities had signed, but not the United States and some others. Since that time, the United States has endeavored without much success to develop a “Reciprocating States Agreement”; that would legitimate seabed mining with or without the U.N. Convention. On the other hand, the Preparatory Commission has met six times and is making only modest progress without the participation of the United States, the United Kingdom, and the Federal Republic of Germany.     

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.