CURRENT STATUS OF THE INTERNATIONAL LAW OF THE SEA NEGOTIATIONS WORKING PAPER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01495R000800140012-6
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 20
• Document Creation Date: December 14, 2016
• Document Release Date: April 14, 2003
• Sequence Number: 12
• Publication Date: February 1, 1975
• Content Type: PAPER

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Secret
Current Status of the
International Law of the Sea Negotiations
WORKING PAPER
State Dept. review completed
Secret
GCR/RP 75-14
FEBRUARY 1975
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CIA/GCR 69.2502/16
10 February 1975
CURRENT STATUS OF THE INTERNATIONAL
LAW OF THE SEA NEGOTIATIONS
Introduction
Despite the absence of formal agreement on any of the inscribed
agenda items at the Third UN Law of the Sea (LOS) Conference
session held in Caracas June-August 1974, measured progress
was made toward the goal of a comprehensive LOS Treaty. For the
most part, agreement was reached on formulating the numerous LOS
issues and proposals into. a manageable set of informal working
papers reflecting the main trends on precise issues. The partici-
pating nations can now focus on individual issues -- and on the
alternative solutions. With few exceptions, these conference
papers make it clear what the structure and general content of the
LOS Treaty will be. The alternatives, the blanks to be filled
in, and even the relative importance attached to different
issues are now generally known. Also encouraging was the evident
commitment of most of the 138 participating nations to the task
of achieving a successful LOS Treaty. The seriousness'of purpose
was indicated by the low level of polemics and a general tendency
to subordinate ideological differences to pragmatic interests.
In the long course of the LOS undertaking -- extending over
a period of more than 5 years of preparatory work within the UN
system -- traditional regional and political alignments of states
have been replaced to a considerable degree by more informal
groupings whose membership is based on similarities of interest
on a given issue. Each state has different priorities, and agree-
ment on one issue is frequently conditioned on the satisfactory
NOTE -- This working paper was prepared by the Office of Geographic
and Cartographic Research of the Central Intelligence Agency.
Although the subject matter was discussed with representatives of
other offices and agencies, no formal attempt at coordination has
been taken. The views presented represent the best judgments of
the issuing office, which is aware that the complex and. controversial
issues discussed lend themselves to other interpretations. For
f
h
urt
er information aD this paper, please call
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resolution of other issues. Given the great number of states
involved, this is a complex and time-consuming process, yet it
affords considerable opportunity for finding mutually acceptable
solutions through various tradeoffs.
Building on the foundation established at Caracas, the
search for accommodation is being continued in various inter-
sessional bilateral and multilateral discussions leading up to
the next formal LOS session to be held in Geneva in March. There
seems to be widespread awareness among the world nations that
unless the Geneva session succeeds, or comes close to concluding
an LOS Treaty, the entire effort could collapse. This would set
the stage for a proliferation of unilateral actions that would
carry great potential for international friction while probably
not satisfying -- to the extent that a comprehensive LOS Treaty
would -- the across-the-board maritime interests of individual
countries, the United States included.
At the Caracas session, the inclusion in the LOS Treaty of
a 12-mile* territorial sea and a 200-mile exclusive economic
zone was widely accepted. The two concepts were conditioned on
a satisfactory overall treaty package; e.g., U.S. acceptance was
and continues to be conditioned on provisions for unimpeded transit
of international straits, a balance between coastal state rights
and obligations within the economic zone, and a non-discretionary
regime for deep seabed mining. In fact, it might be said that the
concepts of a 12-mile territorial sea and a 200-mile economic zone
constitute the keystone of compromise solutions favored by the
majority of states participating in the LOS Conference. Examina-
tion of these two issues and other such critical ones as straits
transit and the deep seabed regime follow.
Territorial Sea
The overwhelming consensus at the Caracas session for a 12-mile
territorial sea virtually eliminated references to any other limit.
Even the few proponents of broader territorial seas as wide as
* Distances throughout this working paper are in nautical miles
unless specified otherwise.
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200 miles -- such as Argentina, Brazil, Ecuador, Peru, Somalia, and
Uruguay -- now realize that they must look to coastal state
rights within the proposed economic zone to help satisfy their
original reasons for claiming extensive territorial waters.
Despite the near consensus on a 12-mile limit, several delegations
at Caracas introduced a variety of articles reopening the question
of innocent passage in territorial seas. For the most part, these
articles parallel the provisions of the 1958 Convention on the
Territorial Sea and the Contiguous Zone which hold that passage
is innocent "so long as it is not prejudicial to the peace, good
order, or security of the coastal state." Although the 1958
territorial sea regime has worked well, such provisions are
susceptible to subjective interpretations, especially in today's
more politicized world. In-this connection, the United States
generally subscribes to draft articles submitted by the United
Kingdom which elaborate the types of activities that are impermis-
sible, and deal in greater detail with the scope and limitations
on coastal state regulatory authority. In any event, the United
States is opposed to any requirements of authorization or
notification for innocent passage in territorial waters or
distinctions between military and commercial vessels.
Straits Transit
The projected expansion of territorial seas to 12 miles
has made straits transit a critical issue since more than one
hundred international straits between 6 and 24 miles in breadth
will be overlapped by the territorial waters of one or more states.
Included in this number are many straits crucial to international
navigation such as Gibraltar and Malacca. Because of military and
commerical considerations, the United States has made acceptance
of a 12-mile territorial sea contingent upon a satisfactory
provision for ensuring unimpeded transit through and over inter-
national straits. The basic U.S. position is that vessels
and aircraft in transit through and over international straits
should enjoy the same freedom of navigation and overflight,
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for the sole purpose of transit, as they do on the high seas.
In all other respects, overlapped straits would be territorial
waters under the sovereignty of the coastal state.
Some archipelago states such as the Philippines and various
coastal states, particularly Spain, have opposed the U.S.
concept, taking the position that'the doctrine of innocent passage
should apply in all territorial waters, including overlapped straits.
Under existing international law, innocent passage does. not permit
overflight or submerged transit, and is susceptible to arbitrary
interpretation by coastal states. Although political and ideological
considerations are at the seat of opposition by some states (e.g.,
PRC, Tanzania) to the U.S. straits position, most opposition stems
from concerns of strait or.archipelago states with respect to security,
safety, and pollution. (For example, Malaysia is chiefly concerned
about pollution, while Indonesia and the Philippines seem primarily
concerned about security factors; by contrast, Spain appears to be
seeking concessions on unrelated matters such as NATO and EEC
membership and British concessions on Gibraltar).
Before, during, and since the Caracas session, the United
States has attempted to accommodate the legitimate concerns of
the opposing nations, and has otherwise been active in clarifying
its position on straits transit. The result of these efforts has
been a discernible trend in the direction of majority support for.
unimpeded passage. The UK draft articles on straits transit intro-
duced at Caracas have been of help; they provide for unimpeded
passage but seek to accommodate coastal state concerns by placing
certain obligations on the flag state, such as those regarding
pollution, safety, avoidance of threat or use of force contrary
to the UN Charter, etc.
Despite the progress made thus far, serious obstacles still
remain for the United States. While opposition to submerged transit
appears to be subsiding, the aspect of overflight remains difficult,
with Ghana and some other states seeking to remove this question from
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the LOS context entirely. At Caracas the Persian Gulf States
and Spain attempted to draw distinction between transit rights
enjoyed by commercial arid by military vessels, with the latter
being subject to restrictions such as advance notification or
consent as contrasted to unimpeded passage for commercial ships.
Firm opposition by the United States to such distinctions and
awareness on the part of most nations that the United States, the
United Kingdom, the Soviet Union, and other major maritime powers
will not become party to a treaty without a satisfactory straits
regime have helped to maintain momentum toward a consensus for
unimpeded passage. With this realization, the attitude among
those participants not directly affected has been to watch silently
or to use the straits issue as a bargaining lever, while those
nations most directly concerned attempt to work out their
differences.
Basically, most nations have at least commercial interests in
free transit of straits similar to those of the United States.
However, developing nations have been somewhat fearful of
dissipating their negotiating strength by dividing among them-
selves. Thus, they may have been unduly prone to influence by
the more hard-line opponents of the U.S. straits position.
The influential Organization of African Unity (OAU) and the
Group of 77 are on record as favoring the principle of objective
innocent passage. However, such views are not binding on individual
member states, and there is considerable diversity of attitudes
within the groups. African countries and other developing
nations appear increasingly appreciative of the importance of
unimpeded transit through international straits. A majority of
such countries are anxious to avoid an ideological confrontation
that terms such as "innocent passage" and "free, or unimpeded
passage" imply. They favor the replacement of such terms with a
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more neutral formulation establishing objective criteria on transit
rights so as to effectively guarantee freedom of transit while
protecting essential security, safety, and environmental interests
of the strait states.
In addition to supporting flag state obligations regarding
safety, pollution, and threats against coastal state security, the
United States is now prepared to show considerable flexibility on
certain other aspects of the straits issue. For example, the
United States may be willing to except certain straits -- such as
those 6 miles wide or narrower and those that do not connect two
parts of the high seas -- provided other satisfactory arrangements
.for such excepted straits can be reached. In general, the United
States takes the view that a regime of non-suspendible innocent
passage should apply to excepted straits. However, even in the
excepted straits, the United States holds that coastal states
cannot prescribe or enforce vessel construction standards for
pollution control.
With this new flexible approach, present opposition to the
U.S. straits position by several nations can be expected to
dwindle. For example, Egypt and other Arab states seem principally
concerned with the Strait of Tiran. This strait is susceptible
to exception by two standards: it does not connect two parts
of the high seas; and it is less than 6 miles wide. Exclusion
of the Strait of Tiran would reduce Arab opposition to the concept
of unimpeded transit, since many Arab nations have a great interest
in free transit in other international straits. Recent bilateral
discussions with Canada -- a critic of the U.S. position on
straits transit -- have greatly narrowed differences between the
two countries. The United States has indicated its willingness
to support stronger coastal state controls in a vessel-source
pollution regime for ice-covered areas (with a military exception)
in return for Canadian support for unimpeded.transit of straits
used for international navigation connecting two parts of the
high seas and agreement on no coastal state authority for standard
setting for vessel-source pollution in the economic zone or
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international straits connecting two parts of the high seas
except within ice-covered areas. Although some differences
still remain, Canada's straits draft now recognizes the right of
overflight and submerged transit in straits more than 6 miles
wide and traditionally used for international navigation..
Considerable progress also has been made by the United States
on the straits transit issue vis-a-vis archipelago claimant nations
which had formed a coalition with Spain and other hard-line straits
states and had obtained ideological support from groups such as
the OAU. The claims of archipelago states such as Indonesia,
Philippines, Fiji, and the Bahamas basically involve the assertion
of sovereignty over all waters enclosed by baselines connecting
the outermost points of the outermost islands. Such claims involve
control over international navigation and overflight -- particularly
with respect to warships and military aircraft -- in vast areas
heretofore regarded as high seas.
The United States has engaged in extensive private discussions
with the archipelago states on such matters as objective definitional
requirements for qualifying as an archipelago state and a suitable
passage regime within archipelagic. waters. The attitude of the
United States in these negotiations has been keyed to obtaining the
support of the archipelago states for U.S. straits objectives. The
U.S. efforts culminated at Caracas with considerable progress
achieved toward reaching a mutually acceptable accommodation with
the mid-oceanic states of the Bahamas, Fiji, and Indonesia. The
mutual agreements are evolving toward a limited, objective
definition of an archipelago and provision for unimpeded transit
through, over, and under archipelagic waters in designated lanes.
Economic Zone and Continental Shelf
The extent and nature of coastal jurisdiction beyond the
territorial sea is for many countries the most significant
issue in these negotiations. Many of the other issues are
perceived -- at least by the developing coastal states -- in
terms of how they affect this coastal jurisdiction. At Caracas
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there developed a broad agreement on the concept of a 200-mile
economic zone, adjacent to the coastal state, where the coastal
state would have exclusive control over seabed mineral resources
and the right to manage coastal fisheries. The agreement includes
general acceptance of freedom of navigation and overflight in
the zone and the right of other states to lay and maintain
cables and pipelines. The landlocked and other geographically
disadvantaged states, who initially opposed this concept on the
grounds that it denied the wealth of the zone to the international
.area where they would share, apparently have come to'generally
accept it, seeking instead to gain access to the sea and special
rights to exploit resources in their neighbor's coastal economic
zone. The Japanese, who see their interests largely as a maritime
country and have been adamant in favoring-only narrow limits of
coastal state control, now accept the inevitability of a broad zonal
approach. Recent diplomatic talks with the Japanese indicate
they will go to Geneva formally unchanged, but willing to live
with a 200-mile economic zone if they can make suitable fishing
arrangements. At the other extreme are a few Latin American
states like Brazil, Peru, Ecuador, and Panama who continue to
press for such complete coastal state control of the zone that in
effect it would become a 200-mile territorial sea. Though small,
this Latin American group is troublesome because of the disruptive
tactics they have pursued at the conference and their influence on
the other lesser developed countries (LDCs), particularly the Latins.
Differences still exist as to the exact seaward limit of juris-
diction over the continental margin, as well. as the degree of
control to be given to the coastal state in the economic zone
and the rights to be retained by the international community.
Coastal state controls and international community rights high-
light to some extent a more fundamental question as to the juridical
definition of the economic zone, an entirely new concept in
international law. Thus far in the negotiations this question
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has received relatively little attention, although a few countries
led by Mexico have recently introduced the topic of military
installations on the continental shelf into the discussions
(possibly to embarrass?the United States and gain leverage on
other zonal issues). There is still much to be settled in regard
to offshore commercial installations and whether they will touch
the residual seabed rights issue in the economic zone.
The economic zone negotiating scene is a particularly com-
plicated one because of the number of interest groups, which vary
with a country's particular geography, its level of development,
and the value of the resources of its zone. Certain thorny
questions that will have to be settled if there is to be a final
.agreement on the economic zone stand out. These include:
1. Do the rights of the coastal states over the seabed
and subsoil resources of the continental shelf extend
beyond 200 miles where the continental margin lies
be and that limit? -"~
While most states agree that the seaward limit of the economic
zone should be 200 miles, there has been a persistent and, to some
extent, growing sentiment that, coastal state mineral jurisdiction
should extend to the edge of the continental margin where it lies
beyond 200 miles. This was espoused strongly at Caracas by some
8 to 10 broad-margin countries, including Canada, Australia, the
United Kingdom, Argentina, and New Zealand, and has found support
from a number of countries in Latin America, Asia, and West Europe.
The broad-margin states generally base their claims over the entire
margin upon what they consider "acquired" seabed rights under the
1958 Geneva Convention on the Continental Shelf (the so-called
".exploitability clause"). Some countries such as Argentina and
Australia point out that they have already enacted into national
law seabed controls over these coastal areas. Opposing the broad-
margin concept have been the African and landlocked and other
geographically disadvantaged states who feel that 200 miles should
be the outer limit of coastal state jurisdiction. The Africans
have been politically tied to an OAU LOS position which was
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established in 1973. The landlocked and other disadvantaged
states have strongly resisted any further seaward extension of
jurisdiction since it encroaches on the proposed international
area, where they would share in the mineral wealth under "Common
Heritage" principles.
A compromise position that awards to the coastal state control
over mineral resources of the margin beyond 200 miles and yet
accommodates the interests of the others has been gaining support.
In such an arrangement an agreed percent of the revenue from coastal
mineral resources in the seabed area between 200 miles and the
edge of the margin would be shared with the international community.
This proposal seems to interest several African leaders, who indicate
they will present it to the OAU before the Geneva session of the
LOS Conference. The few landlocked and disadvantaged states that
have addressed this compromise have sought to exact a more lucra-
tive arrangement. Singapore, for example, at the informal Evensen
group meeting in November 1974, circulated a paper (apparently under
consideration by several delegations) providing for revenue sharing
seaward'of 50 miles.
Most broad-margin states have been slow in accepting any
accommodation. Realizing they have insufficient votes to achieve
broad-margin jurisdiction without revenue sharing, however,
several are now expressing a willingness to consider such an
arrangement. A revenue-sharing-within-the-margin arrangement
is seen by many U.S. LOS tacticians as a way to gain LDC support
for other maritime LOS interests like unimpeded passage through
straits and international rights in the economic zone. An
important policy question thus arises as to whether the future
loss of revenue from hydrocarbons in the U.S. outer continental
shelf area beyond 200 miles through revenue sharing with the
international community is worth the landlocked, disadvantaged,
and African state support for other U.S. LOS interests. Thus far,
it is impossible to determine from the reactions of these countries
just how much such an arrangement will buy or what it would cost.
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2. What are the duties of the coastal states with respect to
conservation and full utilization of coastal fish stocks?
What are the special problems of the anadromous andhitjiy
migratory species proposals?
In coming to grips with one of the most difficult "common pool"
resource problems of our time -- the increasing competition for the
world's fishery stocks -- the negotiators have reached some important
agreements in principle. There is now general agreement that within
the concept of the 200-mile economic zone the coastal state should
have at least preferential rights to manage the coastal species;
in the case of anadromous species (as salmon) the host state should
have this same right, extending even beyond the limits of the zone.
As for tuna, which migrate for great distances, both in and out of
the projected economic zones, there is agreement among many that
an international or regional organization should have the management
and conservation rights.
Serious questions remain in regard to the disposition of that
portion of the coastal species that the coastal state does not
harvest, and whether the coastal state will have a duty to conserve
the fisheries under its control. The distant-water fishing states,
particularly the United States, USSR, and Japan, are pushing for
the full utilization of coastal stocks, with specified priorities
as to who gets the unutilized portion, and mandatory rules regarding
conservation. Japan and the USSR, the leading fishing nations in
the world, naturally seek special consideration for their historic
fishing, particularly during a transition or phase-out period.
Both seemingly have come to accept the inevitability of complete
coastal state control; the Soviets are moving now to retain access
to important fishing grounds by attempting to form joint-companies,
and the Japanese are giving signals that they are willing to work
out bilateral treaties with coastal states in most parts of the
world if special arrangements can be made along the west coast
of North America, where they do most of their fishing.
The coastal developing states initially bargained for unqualified
control over coastal fisheries and the right to allocate the
unutilized stock to whom they wished. Starting in Caracas,
however, they have shown signs of flexibility. Some, like the
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west coast Africans, have acknowleged the need for the "full
utilization" principle, but with no imposed priorities as to who
gets to fish for the unutilized portion. Those that accept
priorities tend to draw a-distinction between developed and
developing countries, with preference to neighboring landlocked
nations and developing coastal states that are dependent on their
coastal stocks. Others have begun to explore trading off rights
to fish with transfer of technology or aid in developing their own
fishing industry. Certain states, particularly those with lucrative
fishing grounds like Peru, Ecuador, and Mexico, remain adamant,
favoring totally exclusive control, with no duties or obligations
to submit to international regulations or permit entry by other
nations, not only for coastal species, but for salmon and tuna
as well.
A middle-ground position has been taken by a number of
nations, including the eight European Economic Community countries
who believe that fishery organizations should direct fishery usage
by region and/or by species.
If the full utilization concept is agreed to, there would
remain the question of who has the right or ability to make
the technical/biological judgments about fish stocks -- their
maximum sustainable yield and sound conservation practices. Many
developing coastal states, who have little technical expertise to
handle these matters themselves, abhor the thought of developed
country specialists making these judgments, and are insisting
that they have the right to do it. A proposal that the UN's
Food and Agriculture Organization make such biological determina-
tions is now being considered. A number of countries share the
United States view that a compulsory dispute settlement mechanism
is necessary to make such fishing arrangements work.
The developing coastal states, by and large, have shown little
interest in the anadromous species issue and appear willing to
accept the U.S. proposal for control by the host state. The
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Japanese, however, remain a significant obstacle to settlement.
Japan has indicated that it would prefer to work with existing
regional fishery conventions among the few countries involved
rather than include this question in a global LOS Treaty, which
the Japanese fear might result in stricter regulations. Salmon
fishing in the North Pacific region is an important and
traditional element of Japan's widespread fishing industry, and
the issue has both economic and political implications for the
Japanese Government. The United States argues that an LOS Treaty
provision for host state control of anadromous species throughout
their migratory range is essential for future stability as world
fishing interests expand, and also to provide a firmer basis for
granting Japan access rights subject to reasonable conservation
and allocation arrangements. An acceptable agreement between the
United States and Japan on a solution of the anadromous problem
would most likely provide a basis for a treaty provision acceptable
to a majority of nations at the LOS Conference in Geneva.
On highly migratory species the United States has not supported
the idea of coastal state control. Because of wide migration
patterns of species like tuna, which are sometimes transoceanic,
separate regulatory systems in the 200-mile zone and in areas beyond
200 miles could probably not conserve or equitably allocate the
stocks. The United States proposed in Caracas that there be inter-
national or regional regulatory organizations similar to those that
have operated in the Pacific Ocean for many years. Seeking accommoda-
tions, particularly with the troublesome west coast Latin
Americans, the U.S. proposal calls for regulations by the coastal
state in the economic zone and by the flag state outside the zone --
in both cases in accordance with regulations established by
appropriate international or regional organizations. Membership
in the organization would be mandatory in order to fish, and
there would be fees paid to the coastal state for the catch taken
within its economic zone. There would also be equitable alloca-
tion regulations and requirements by members to adhere to the
full utilization principle.
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Reception of these draft articles has been mixed. At
Caracas a large number of developing country delegates commented
favorably on the concept of the U.S. proposal. However, some,
with Ecuador and Peru in the forefront, are politically emotional
on the issue because of the history of tuna fishing confrontations
with the United States. They are strongly opposed to any infringe-
ment, no matter how slight, on what they consider to be their
sovereignty over a 200-mile patrimonial sea. Mexico, whose
greatest concern is enlarging its tuna fleet, has sought to
restrict new entrants into the industry in the Pacific Ocean.
Japan, who does most of its tuna fishing in the central and
south Pacific, appears to support the U.S. approach. Micronesia,
on the other hand, wants even stronger coastal state control
over tuna than the Latins. A few countries who have no tuna
interests per se, but do have strong political/ideological
motivations, such as Tanzania, are talking against any form
of regional or international control.
3. What are the riqhts of the coastal state with respect
to scientific research and vessel-source ollution?
Freedom of scientific research in the economic zone -- an
objective of the developed countries -- is endangered by the
coastal state consent regime advocated by most of the LDCs.
This regime, part of the LDC attempt to "territorialize" the
economic zone beyond the territorial sea, would require the
explicit consent of the coastal state before research could be
conducted in the zone. Scientific research is not a salient
issue for most LDCs, however, and their hard-line position may
be for tactical purposes. Also, at least 11 landlocked and
other geographically disadvantaged LDCs support advanced
notification by the researcher in lieu of prior consent by the
coastal state. Although most countries continue to support the
explicit consent regime, there is a trend toward a compromise
that would avoid a discretionary right of coastal state consent.
The most likely compromise appears to be a modified consent
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regime that would provide the coastal state the right to prohibit
research but would require it to approve research that meets
certain conditions specified in the Treaty.
One of the most contentious issues in the economic zone relates
to vessel-source pollution. While there is no broad opposition
to minimum international standards applicable to vessel discharge,
the LDCs and some developed nations, notably Canada and Australia,
advocate the right of the coastal state to set higher standards
and enforce all vessel-discharge standards in the economic zone.
In this they are opposed by the Group of 17 -- maritime nations
who fear coastal state interference with navigation. The LDC
proposal for a pollution "double standard" -- which would allow
less stringent LDC obligations consistent with their national
economic policies -- would seem to support the suspicion that
the LDCs, like many of the maritime nations, are less concerned
about protecting the environment than maintaining the strongest
bargaining position in the negotiations. A trend away from
coastal state construction and perhaps discharge standards is
evident; some LDCs -- including India, a leader of the LDCs on
this issue -- have indicated they will not press for the coastal
state right to set construction and discharge standards. A
softening of the. LDC demand for coastal state enforcement of
vessel-discharge standards in the economic zone is remote.
Deep Seabed
The deep seabed issue is central to the LOS debate. It
gave birth to the LOS Conference and is an issue around which
the LDCs, the largest group of nations, rally and unite. The LDCs
view control of mining the manganese nodules found on the deep
seabed as an opportunity to control what they see as unbridled
exploitation by the developed nations and to narrow the ever
widening gap between the haves and the have nots. They have
taken "Common Heritage" as their battle cry and have resolved
that what is common heritage must be under strong, effective,
common sovereignty, and not a matter for unilateral, national or
private activities.
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Caracas provided a forum for the major protagonists to present
their basic views: on one side the United States, the USSR, the
Common Market countries (minus Ireland), and Japan called for
minimum International Seabed Resource Authority (ISRA) control of
seabed mining and a large measure of freedom for individual state
and private enterprises; on the other side the Group of 77 (LDCs),
plus several other countries (Romania, Albania, and Spain) that
for various reasons support the Group of 77 on this issue, called
for maximum ISRA.control. Additionally, the LDC land-based producers
seek ISRA-managed price and production controls on seabed minerals
to minimize what they consider to be the potentially adverse effects
of ocean mining on their economies.
A key U.S. objective is to assure access to seabed minerals
for the U.S. by framing an acceptable system for deep seabed exploita-
tion in the convention. Balanced decision-making procedures within
the Authority are considered essential to protect the interests of
industrialized and consumer nations against adverse decisions
on important substantive issues. The LDCs in Caracas effectively
resisted any attempts to work out the details of how the exploitation
system would operate until the industrialized countries concede that
the ISRA will be empowered to engage in direct exploitation.
There was insufficient diplomatic and political will in Caracas
to make the hard negotiating decisions that were required to bridge
the gap between the opposing positions. Various factors were
responsible for the hesitancy to negotiate and the consequent lack
of discernible progress. Many nations felt little sense of urgency
about these negotiations and apparently would have been willing to
allow them to be protracted indefinitely. Six or seven LDC land-based
producers stressed the potential problem for their economies posed
by deep-sea mining, while
LDC leaders Peru and Algeria
played upon this and other topics to obstruct serious.discussions.
A more significant impediment might have been the lack of self-
confidence on the part of the LDCs to discuss such precise economic
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issues as the type of payments for mining rights, national tax
credits to operators for payments for mining rights, depreciation
write-offs for deep seabed mining equipment, and other realities
of capital investment.
The LDC delegates generally have had no experience in large-
scale private financial endeavors and many have ideological problems
in adjusting their theories to capitalist practice just as the United
States has difficulty understanding their economic philosophies.
Existing taxation and management practices for land production
of hard minerals offer little guidance to the LDCs on what
measures would be appropriate for the ISRA's contractual arrange-
ments with corporations. They feel that any precipitious agree-
ment on the conditions of exploitation might lead to an arrangement
whereby the ISRA would not possess "direct and effective control"
over the activities of contracting parties. Additionally, they
probably fear being locked into a treaty calling for some manner
of royalty or taxation schedule that would provide the ISRA with
only a small share of the benefits.
The U.S. proposal at Caracas was more palatable for the LDCs
than was the Common Market (EEC) proposal. The U.S. proposal
called for legal arrangements between the ISRA and the contractor
licensing, perhaps, or even service contracts -- whereas the EEC
proposal did not. The U.S. proposal also called for contractor
compliance with rules promulgated by the ISRA as well as those
set out in a treaty; the EEC proposal mentioned compliance only
with the latter -- an implication that the United States would
favor greater ISRA participation in the seabed's exploitation
than would the Europeans. A Japanese proposal indicated a
preference for the ISRA as a regulatory body, exercising control
over contractors within the framework of rules written into a
LOS treaty. The proposal would allow direct ISRA exploitation,
but only to the degree that the ISRA's own funds and technology
would permit.
A third group at Caracas, primarily Australia, Canada, Denmark,
Norway, and Sweden, advocated a parallel system that would allow
both licensing of firms or states and direct exploitation by the
ISRA.
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U.S. negotiators at Caracas detected a growing awareness,
or perhaps admission, on the part of the LDCs that the only
capability for seabed mining at the present time lay in the hands
of U.S., European, and Japanese private enterprises, and that if
the LDCs are to exert any sort of control over seabed exploitation
they will have to make an association with the ISRA attractive
for private investors. The LDCs probably have not yet decided
what measures to take in this regard. A definitive adjustment.
of the LDC position on the deep seabed issue may be forthcoming
at a Group of 77 meeting scheduled to be held immediately prior
to the March resumption of the LOS Conference at Geneva. The
Group of 77 might accept a parallel system of exploitation. Its
own proposal in the First Committee's draft articles already allows
for participation by natural and juridical persons in association
with the ISRA through "...contracts, joint ventures, or any other
such form of association...," and some of its own members, Fiji
and Sri Lanka among them, are on record as opposing direct
exploitation by the ISRA.
The Group of Five (France, Japan, USSR, United Kingdom, United
States) is not a totally cohesive unit. The United States is alone
on the quota issue, proposing no limit on the number of mine sites
allowed any single state or entity. The others favor some manner
of quota arrangement to prevent American entrepreneurs from
monopolizing the prime mining sites. There are indicators that
other members of the group now support a parallel licensing/direct
exploitation system of mining as a fallback option. Indications
of French, British., and Japanese flexibility on the question of
Council voting arrangements could further lessen the bloc strength
of the Group of Five. These nations may be content with a satis-
factory resolution of the basic issue of access to the seabed and
may not actively pursue machinery questions in Geneva..
SEC,
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