U.S. POLICY AND THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA INSTITUTION ARCHIVES W.H.O.1. DATA LIBRARY WOODS HOLE. MA. 02543 HEARINGS BEFORE THE COMMITTEE ON FOREIGN AFFAIRS HOUSE OF REPRESENTATIVES NINETY-SEVENTH CONGRESS FIRST SESSION APRIL 29 AND MAY 14, 1981 Printed for the use of the Committee on Foreign Affairs ae 2 te U.S. GOVERNMENT PRINTING OFFICE Ul et 80-949 O WASHINGTON: 1981 7S | COMMITTEE ON FOREIGN AFFAIRS CLEMENT J. ZABLOCKI, Wisconsin, Chairman L. H. FOUNTAIN, North Carolina DANTE B. FASCELL, Florida BENJAMIN S. ROSENTHAL, New York LEE H. HAMILTON, Indiana JONATHAN B. BINGHAM, New York GUS YATRON, Pennsylvania STEPHEN J. SOLARZ, New York DON BONKER, Washington GERRY E. STUDDS, Massachusetts ANDY IRELAND, Florida DAN MICA, Florida MICHAEL D. BARNES, Maryland HOWARD WOLPE, Michigan GEO. W. CROCKETT, Jr., Michigan BOB SHAMANSKY, Ohio SAM GEJDENSON, Connecticut MERVYN M. DYMALLY, California DENNIS E. ECKART, Ohio TOM LANTOS, California DAVID R. BOWEN, Mississippi WILLIAM S. BROOMFIELD, Michigan EDWARD J. DERWINSKI, Illinois PAUL FINDLEY, Illinois LARRY WINN, Jr., Kansas BENJAMIN A. GILMAN, New York ROBERT J. LAGOMARSINO, California WILLIAM F. GOODLING; Pennsylvania JOEL PRITCHARD, Washington MILLICENT FENWICK, New Jersey ROBERT K. DORNAN, California JIM LEACH, Iowa ARLEN ERDAHL, Minnesota TOBY ROTH, Wisconsin OLYMPIA J. SNOWE, Maine JOHN LEBOUTILLIER, New York Joun J. Brapy, Jr., Chief of Staff Marcaret E. Garey, Staff Consultant Nancy M. Carman, Staff Associate (II) MBL/VWHOI UI 0 0301 OObL94S54 3 CONTENTS WITNESSES Wednesday, April 29, 1981: James L. Malone, head of the U.S. delegation to the United Nations Third Conference on the Law of the Sea, and Assistant Secretary- designate of the Bureau of Oceans, Environment and Scientific Affairs.. Thursday, May 14, 1981: Hon. Elliot Richardson, President, Department of State’s Advisory Com- muttee, onithe Auaw, Of the Sa wie. .cs. cress cose cb aren saad ) apeyper rhe tt: BPI wy : ra ‘ neg Am ne? me he LUC y . eee + 54 eed OMB ct et Sete Pi 2 + S85. os a fal e. eairalag,. 119i gsseh O68 MORI. Os “ond BOAO. AwT. *: blusp illAcevan. | aes ey ‘ burs » as bo Notes y atroqne att wt ee» mr. < was ht LOLO6E .gg 2-05 xibe « vt U.S. POLICY AND THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA THURSDAY, MAY 14, 1981 HousE OF REPRESENTATIVES, COMMITTEE ON FOREIGN AFFAIRS, Washington, D.C. The committee met at 3 p.m. in room 2172, Rayburn House Office Building, Hon. Clement J. Zablocki (chairman of the commit- tee) presiding. Chairman ZABLOCKI. The committee will come to order. This afternoon we meet to continue consideration of the U.S. participation in the negotiations of the United Nations Third Con- ference on the Law of the Sea. On April 29, Mr. James Malone, the head of the U.S. delegation to the Conference, testified before the committee on the status of the negotiations at the 10th session and the administration’s policy review. Mr. Malone indicated several problems he has with the deep seabed mining provisions of the draft convention. He also said that the administration would carry out a thorough review of U.S. policy which would not be concluded until after the resumed 10th session of the Conference this August in Geneva. Thus the United States would not be prepared to participate in the Geneva meeting in a substantive way. Members of the committee expressed consid- erable concern with the timing of the review and urged the admin- istration to complete the review in a balanced and expeditious manner hopefully, in time for the August session. Today we welcome Elliot Richardson, former head of the U.S. delegation to the Conference and currently president of the Depart- ment of State’s Advisory Committee on the Law of the Sea. We are glad to have you with us and look forward to having your views of the negotiations and U.S. participation. I understand you have a prepared statement. Do you want to begin with that and either summarize or read it for the record? STATEMENT OF ELLIOT RICHARDSON, PRESIDENT, DEPART- MENT OF STATE ADVISORY COMMITTEE ON THE LAW OF THE SEA Mr. RicHarpson. Thank you, Mr. Chairman and members of the committee. I do have a prepared statement, and judging from experience, Mr. Chairman, I suspect I can deliver the whole statement verba- tim more quickly than any adlibbed summary. I do appreciate the opportunity to be here, Mr. Chairman. (27) 28 I have been grateful over all the years of my association with the Law of the Sea negotiations for the sustained interest of this com- mittee. It is not a subject that has during any of that period enlisted a degree of public attention commensurate with its true importance, and so I have been all the more appreciative of the recognition by this committee of the dimensions of its implications for the long- term interests of the United States, and I feel that way particular- ly at this time, Mr. Chairman. In the interval since I last appeared before you, two develop- ments have taken place which seem to me significant. First, the Conference as a whole has exhibited a notably tolerant understanding of the need of the United States to carry out a thorough review of the draft convention, provided that it is done in a timely manner. The last point, of course, is one which you have just underscored, Mr. Chairman, in your introductory remarks. . There have been indications, moreover, that many delegations would be prepared to consider proposals emanating from the review that are designed to correct what we, the United States, regard as flaws in the text. Short of such a futile gesture as attempting to change the basic elements of the parallel system, how far we should attempt to go in seeking such improvements is a question of judgment. Interses- sional consultations with other delegations should help to provide answers to this question. Although the Advisory Committee on the Law of the Sea, of which, as you have just noted, I am the public chairman, will undoubtedly have views on these matters, as well on the substance of the changes to be sought, the committee will not have had a chance to discuss them until it meets again on June 8 and 9. I shall not, therefore, try to anticipate its recommendations. The second noteworthy development is the remarkable persis- tence of distortions of the draft convention by critics apparently less interested in getting a good treaty than in scuttling any treaty whether satisfactory or not. These distortions are now being picked up and repeated by people who are not fundamentally hostile to the treaty but who, under the impression that the text actually contains the alleged flaws, are understandably disturbed. This oe Mr. Chairman, affords a timely opportunity to correct the record. The most frequently repeated misstatements, and the answers to them, are as follows: One, that the treaty would not give the U.S. assured access to seabed minerals. In fact, the text expressly gives companies spon- sored by a member state the right to apply for a plan of work, spells out the qualifications of applicants in clear, objective terms, and directs the International Seabed Authority to approve a plan of work proposed by an applicant meeting the specified financial and technical standards. Two, that the United States would not be assured of a seat on the Council of the Authority, although the Eastern bloc would be guaranteed three seats. Actually, the provisions for membership on the Council would assure the Western industrial countries six to 29 nine seats; each interest group whose representation is required would designate its own representatives. The United States, either as the probable largest investor in deep-seabed mining—one of the represented interest groups—or as the largest importer or consum- er of deep-seabed minerals—a second interest group—would have as much practical assurance of being named to one of these groups as would the Soviet Union of being named as one of the Eastern bloc representatives. Three, that the U.S. companies would be required to sell sensi- tive national-security-related technology. On the contrary, the U.S. Government would presumably deny an export license for any such sale. The text provides that ‘nothing in this convention shall be deemed to require a State Party, in the fulfillment of its obliga- tions under the relevant provisions of this convention, to supply information, the disclosure of which is contrary to the essential interests of its security.” Four, that a company seeking an ocean-mining contract would be required to transfer its technology without adequate compensation. In fact, the technology-transfer obligation applies “only if the en- terprise finds that it is unable to obtain the same or equally efficient and useful technology on the open market” and then only on “fair and reasonable commercial terms and conditions,’ subject to binding commercial arbitration of any dispute as to those terms and conditions. In passing, I would note that a number of compa- nies have already come forward with offers of seabed mining sys- tems to the future enterprise. Five, that national liberation movements like the PLO would be eligible to share in the net revenues of the Authority. Although “activities in the area,’—those would, of course, include deep- seabed mining—under the jurisdiction of the Authority are to be conducted on a basis talking into consideration the interests of “peoples who have not obtained full independence or other self- governing status,’ the sharing of economic benefits can only be carried out in accordance with regulations in which we must concur. We shall, therefore, be in a position to prevent the PLO from being eligible. Fortunately, Mr. Chairman, the attacks on the text have a posi- tive aspect. They help to point up the remarkable fact that so little of this extraordinarily complex document is the subject of contro- versy. They also invite their own refutation by the kind of retort I have just made; namely, that the text does not say—or was not intended to say—what the critic has alleged. And where the criti- cism cannot wholly be disposed of by a fair reading of the existing text, it identifies an opportunity to make the language conform with its intent. In the case, for example, of U.S. membership on the Council of the Authority, the provision for the selection by each interest group of its own representatives was put forward by the USS. delegation last year in the belief that this would solve the problem. It was accepted by the Group of 77 with the same understanding. Having thus in substance already acquiesced in a “guaranteed seat for the United States,” it is likely that the 77 would now agree to make the guarantee more explicit. 80-949 O—81——3 30 Again, take the allegation that liberation movements like the PLO would be eligible for a share of the net revenues of the Seabed Authority. Although, as noted above, we have in fact secured effec- tive means of preventing such an outcome, this, too, is a result that could be reinforced, if not in the text, at least in the official record at the final stage of the Conference. Not all criticisms of the draft convention are distortions, of course. The Interdepartmental Group on the Law of the Sea had already targeted a number of needed improvements even before this administration’s review was announced. The IG proposals would have addressed most of the concerns identified by Assistant Secretary Malone when he testified on April 29 before the Subcom- mittee on Oceanography of the House Merchant Marine and Fish- eries Committee. The most important of these proposals—and concerns—was the protection of investments made prior to the draft convention’s entry into force. Other such matters were the transfer of technol- ogy owned by subcontractors, the “Brazil clause,’ the number of ratifications required for the entry into force of amendments ema- nating from the Review Conference, and the exemption of net importers from sharing the revenue from the exploitation of hydro- carbons in the Continental Shelf beyond the 200-mile limit. Although not on either Mr. Malone’s or the IG’s list, other desirable changes which the Conference would undoubtedly agree to put on its agenda would be a clause more positively encouraging the exploitation of seabed resources and a fixed date for the star- tup of the production-ceiling formula. Mr. Malone also referred to the burden imposed on seabed mining corporations by the convention’s review-sharing provisions, but this is a concern which should, in all fairness, be dealt with under domestic law. All that is necessary is to give revenue-sharing payments to the Authority the same treatment as taxes paid to a foreign government. Indeed, this has all along been advocated by the State Department. If this were done the present revenue-shar- ing provisions are likely to be acceptable to U.S. mining companies. In conclusion, Mr. Chairman, I want once again to emphasize that the treaty, as thus improved, would bring substantial benefits to the United States. This is widely acknowledged—indeed, I should say, except for fringe elements, not disputed at all—in the case of freedom of navigation and overflight, environmental protec- tion, conservation of living resources including marine mammals, oil and gas exploitation, telecommunications, conflict prevention, and dispute settlement. Most members of the scientific community agree that marine scientific research would be better off under the treaty than with- out it. And even the seabed mining industry recognizes that a treaty improved in realistically possible ways is the preferable means of obtaining rights good against all the world to carry out deep seabed mining operations in defined areas of the ocean bottom. Such a treaty would, therefore, better serve the national interest in access to strategic minerals than a vulnerable reciprocal regime to which only a handful of industrial countries belonged. 31 Let me interpolate, Mr. Chairman, that with one possible excep- tion. I do not know of any representative of the perspective deep seabed mining industry that would disagree with those statements. Thank you, Mr. Chairman and members of the committee. This concludes my prepared statement. I would be glad to respond to your questions. Chairman ZABLOCKI. Thank you, Mr. Richardson. You have cer- tainly responded to some of the concerns and questions that Mr. Malone has presented before this committee which also caused some question among the membership of this committee. You have stated that you are president of the Department of State’s Advisory Committee on the Law of the Sea. The committee is comprised of what membership, and what input does it have, as far as our new administration’s policy position? Mr. RicHARDSON. The committee is composed, Mr. Chairman, of representatives of all the affected or interested groups. It is, there- fore, a large committee, and it includes Members of the House and Senate as well. Total membership, I think, is 126, and it is divided into subcommittees for each interest. For example, there is a Subcommittee on Deep Seabed Minerals or Seabed Mining. That subcommittee is chaired by Mr. Marne Dubs, of Kennecott Copper, who is also the chairman of the Ameri- can Mining Congress Committee on Seabed Mining. There i ommittee on Marine Scientific Research, chaired Woods Hole, which includes representatives of the Lam Oherty Geological Observatory at Columbia, Scripps at La Jolla, the universities of Oregon, Washington, Rhode Island, and other distinguished marine biologists and oceanographers. There is a Committee on Oil and Gas, including representatives of Exxon, Shell, Mobil, Gulf, Texaco, Standard Oil of Indiana, and several independent experts. There are Subcommittees on Shipping, Fishing, International Law, and so on. It has been my practice to ask the subcommittees to designate one member who would serve at a given time as a member of the U.S. delegation. Members of the Advisory Commit- tee are entitled, in addition, to attend meetings of the delegation during negotiations, and in the intervals between sessions, there have been meetings of the committee usually of a day and a half or two days at which the status of negotations is reviewed, and at which the views of members of the committee on pending issues are invited. I was pleased to note, Mr. Chairman, that in testimony by Mr. Kronmiller before this committee when he accompanied Mr. Malone on April 29, 1981, Mr. Kronmiller, in response to a ques- tion by Congressman Gilman said, and I quote, “Historically, there has been heavy reliance upon the Advisory Committee that has been established for the Law of the Sea, and we do not intend to diminish that.” Chairman ZABLocki. Mr. Malone, in his testimony, stated that when there is a change of administration, a review of previous negotiations is almost automatic. Given the outcome of the Presidential elections in France last week, is the French Government likely to want to review its policy negotiations at the Law of the Sea Conference, and would you care 32 to comment on whether a review of past negotiations is automati- cally sought when there is a change of administration? Mr. Ricuarpson. Certainly, Mr. Chairman, this degree of auto- maticity is not visible in the conduct of negotiations by other countries as a general rule. There have been, of course, many changes of governments around the world, even during the 4 years in which I have been associated with the negotiations, and I am not aware of any in- stance in which another country has sought to delay the negotia- tions or has indeed significantly changed its negotiating position because of the change of government. The presumed explanation for this is that the national interests at stake in each country are so fundamental and so persisting that they have been given a recognition transcending purely partisan considerations. This, in turn, therefore, has accounted for the fact that a change of party leadership of the Government has not resulted in a change of negotiating positions. I do not on the other hand, want to be understood as questioning the legitimacy of undertaking the review at this time, and indeed, even the Law of the Sea Conference as a whole, as I noted at the outset of my statement, has accepted that position. I am concerned, however, as to the depth of the review, and thus as to the time that it may take. 4 Pee It does seem to me that there ought to be some fundamental premises, premises that have guided every administration since Johnson, that ought relatively quickly to be capable of review and assessment in order then to be able to address the question of how to improve the treaty at Geneva, and it does seem to me the negotiating session in Geneva may well afford an opportunity for the United States to obtain improvements in the treaty, or at least to initiate that process which may not be available at a later date after the United States has curdled the atmosphere by another foot-dragging performance. Chairman ZABLOCKI. You have stated also in the opening part of your testimony that the Conference as a whole has exhibited nota- bly tolerant understanding of the need for the United States to carry on a review. However, would the Conference have a tolerant understanding of the United States if the review is not completed by August, and what is likely to happen at the Conference if the United States is not ready to negotiate substance by that time? Mr. RicHARDSON. I am concerned about this, Mr. Chairman. I can’t make a completely confident forecast, of course. I am concerned, as I indicated, that a negative reaction would make the Conference less receptive at a later date to whatever amendments we then seek. I am also concerned that the Conference might insist upon “for- malizing” the text, which would mean that the document now referred to as “Draft Convention on the Law of the Sea’ (Informal Text), would become a formal text. That would mean, then, that for the first time the Conference operated under its rules, and under the rules, changes in the text can only be made by amendment. 33 This would require an affirmative two-thirds vote, so for the United States then to get a consensus could be difficult. It would be more difficult, perhaps, then for us to muster a two- thirds vote, and for us to get a two-thirds vote in any circum- stances would be extremely difficult, so I do think we have timing considerations that are of considerable urgency, and this, it is fair to say, is a major concern, in my view, with respect to the manner in which the review is now being conducted. Chairman ZasB.Locki. Of course, Mr. Richardson, you said you did not intend to guess what the Conference would do or what would likely happen at the Conference if we are not ready, but is there a possibility that the Conference would go ahead without us? Mr. RicHaArpson. I certainly think that they might well go ahead with the formalization of the text, as I have just indicated. I do not think that they would go ahead and adopt the treaty without us, but the formalization of the text would be a step that make it harder for us thereafter to get changes. So, looking at the situation, therefore, in terms of trying to make the most of an opportunity to get improvements, I would be concerned if we were not prepared to do that in Geneva. Chairman ZABLOCKI. With the permission of the members, I would like to return to my first question when I referred to your presidency of the Department of State’s Advisory Council—what input do you have, what input have you had, and what input do you expect to have on the executive branch as President of the Department of State’s Advisory Council? Mr. RIicHARDSON. We have not had a whole lot of input up to now, Mr. Chairman, although I did have an informal conversation with most of the subcommittee chairmen a month ago, the result of which was the conclusion that each subcommittee should seek its own means of presenting its views to the group of Deputy Assistant Secretaries now conducting the review under Mr. Malone, and to Mr. Malone himself. The Seabed Mining Subcommittee has done this. Whether any other has up to now, I don’t know. The committee will meet, as I indicated, on June 8 and 9, and at that meeting, I feel sure that these questions—the questions we have been discussing—will be addressed together with the question of judgment I mentioned which is, what will the traffic bear in terms of future improvement in the text. Chairman. ZABuLock!. Mr. Winn. Mr. Winn. I thank you, Mr. Chairman. I want to take this opportunity, if I may, to commend the gentle- man, the Secretary, for the many hours of dedication and hard work that he has put in trying to make this become a law, an international agreement that is important to so many countries and so many people in the world. I am quite sure that it must take a very patient man to spend the time and energy that you have, and then to have your own administration sort of put the brakes on you, almost slam the door in your face. I would like to know, maybe you would prefer to tell me later— but I am anxious to known in the committee anyway, do you really have the ear of the President? 34 Does he know what you are doing, the amount of work that has been involved, or do you have to go through staff? Mr. RIcHARDSON. The answer, Congressman Winn, is that, no, I don’t have the ear of the President. I haven’t sought it either, up to now. It seemed to me, for the reasons that the review was legitimate, it was legitimate that it be undertaken in the ordinary course by the representatives of all the departments and agencies concerned, whoever they might be, and that if I or anyone else concerned with the treaty were to go to the President of the United States, at the beginning of such a review, the answer we would inevitably get would be that no, the issues have not been prejudged, that the review is being undertaken even- handedly, and that certainly there would be the opportunity for us to be heard at a later date, and so on, and so on. I am, however, concerned now that the tactical questions of judgment affecting the timing of the U.S. presentation of amend- ments be brought to a level in the Government where this can be looked at in a broader perspective, than I think the rather labori- ous process that is now underway would permit, and I would think the question of how best to do that, through what channels and the like, is a question that certainly concerns me and others who have been deeply involved in these negotiations. Mr. Winn. Do you think that there are too many agencies in- volved in the work that is being done at the present time, the study, recommendations? Is it unwieldy? Mr. RicHARDSON. It is to a degree, and in the sense that the whole U.S. delegation has to some extent been unwieldy, but there is no way of excluding representation of departments and agencies who do have genuine interests. The Department of Defense is represented for obvious reasons. The Department of Transportation, largely because of the responsi- bilities of the Coast Guard; Department of Commerce, which in- cludes the Maritime Administration as well as the National Ocean- ographic and Atmospheric Administration; and the Department of Energy, given the enormous oil and gas reserves of the continental margin, as well as the potential for energy development through such devices as ocean thermal energy conversion; the Environmen- tal Protection Administration, and so on down the list of those who have been represented in this process from the very beginning. I chaired in 1969 and 1970 the Under Secretary’s Committee of the National Security Council, and in 1970 we had an enormous number of members at every meeting, because of all the interests that were engaged and they have been represented ever since. Mr. Winn. Thank you. Well, listing all those agencies, I don’t think that was a very smart question of me to ask you, because I could have answered that myself. Is there anything the members of this committee can do or the Members of Congress can do to help you in your efforts? Mr. RicHArpson. Well, I don’t want to create the impression in the first instance, Congressman Winn, that I am carrying on a battle inconsisent with the interests or objectives of the administra- tion, or the United States generally. 35 I am assured and believe that the review being undertaken is a genuine and open ended review. I think, first, that any members of this committee who are convinced that a treaty is on balance in the interest of the United States; and, second, that we should seek to take advantage of the opportunity to get improvements in it— and are, therefore, concerned about the problem of time—that it could be helpful if they expressed that concern. Mr. Winn. I think there are a great many of us that feel that way. Again, I want to thank you for your time, dedication and, prob- ably more than anything else, patience. Thank you, Mr. Chairman. Chairman. ZABLOCKI. Thank you very much. Mr. Bingham? Mr. BincHam. I would like to join in what Congressman Winn just said. As you know, I followed your work in this area with great interest and admiration for a long time. I don’t know whether you have seen a publication that I have here headed “Mineral Policy Issues,” put out by Government Re- search Corp. and written by William J. Baker, energy and national resources analyst. I would like to quote a couple of passages from this paper, and then ask for your comment. The mining industry is vigorously opposed to the seabed mining provisions cur- rently in the treaty. Industry representatives argue that enactment of the treaty without major amendment would preclude any additional investment in seabed mining. And a little later, the paper says: Many of the mining industry’s objectives involve major, long-standing provisions which, while not to everyone’s liking, had largely been accepted as settled. Mr. RicHARpDSON. The statements, I think are essentially accurate characterizations of industry views. But if you were to ask another question which is, what changes can the United States get, and then would you rather operate under the treaty as thus improved than without a treaty, you would elicit important additional infor- mation. You would find out first that mining companies would favor a course directed toward getting improvements to the extent that this is feasible, and would oppose demands by the United States that would not be taken seriously, and that could not be achieved. You would get into questions of judgment as to what is feasible, and those are perfectly legitimate as well as difficult questions. The second point you would find out that there will be no invest- ment in deep seabed mining without a treaty. I have asked the representatives of all the consortia whether or not they would be willing to invest under domestic reciprocal legis- lation, and the answer was ‘“‘No.”’ You then come to the question, what are the greater risks to a potential investor: under a treaty that is improved as much as feasible, or under reciprocal legislation? I think most of them would say that the risks under the treaty are not as great as the risks that would exist in the attempt to operate under national legislation. 36 If at the end of the road it turned out that the companies needed further reassurance in order to get them to invest under the treaty, then the only possible answer would be risk insurance, either offered commercially—and it might be available commercial- ly, if we had done a good job on the rules and regulations, for example. If commercial risk insurance were not available, then there could be an adaptation of the type of insurance we now offer to investors in other countries under OPIC. The costs of the insurance are likely to be less under the treaty than outside it, because the legal risks are likely to be less under the treaty than outside it. So you then finally get to the key point, which is that if on balance the industry is better off under an improved treaty than without it, and if it takes insurance to induce investment under the treaty, then by all means, let us provide that insurance, because by that route, the United States will gain the other benefits of the treaty. Conversely, if we kick over the treaty, we will find ourselves with an equal or greater need for providing insurance in order to get a company to act, but at the same time, we will have lost all the other benefits. Now, these shorthand statements, such as the ones you have read, gloss over all of this. The industry has been unable to change gears quickly. For a long time they regarded themselves as in effect putting pressure on the Conference and on the U.S. delegation to get a better treaty. Their criticisms of the treaty have been picked up by people whose basic objection to the treaty are essentially ideological. Now, last year, Mr. Chairman, and Mr. Bingham, I would not have told you that there would be no investment under the legisla- tion. I was personally responsible for getting the last administra- tion to change its position from opposition to the legislation to support of the legislation. I did that because we needed the negoti- ating leverage created by the perception on the part of the Confer- eee that we were indeed prepared to go forward under that legis- ation. Now the situation is one in which we have obtained all the negotiating leverage we could possibly need because of the possibil- ity we may kick over the treaty regardless of its benefits to the United States, so it ought to be clear, therefore, that insofar as U.S. access to strategic minerals is concerned, we should prefer the treaty. It is not a question of trading off U.S. access to minerals against U.S. politico-military interests in freedom of navigation. It is a question of having better assurance of access to seabed minerals under the treaty than without it, and I do not know a single representative of the seabed mining industry who, as I said at the conclusion of my prepared statement, disagrees with that, with one possible exception. Mr. BincHAM. My time has expired, but you have just made one of the most significant statements that I have heard in any hearing on this subject. I trust the industry press is here and will faithfully report what you have said, that there will not be investment without a treaty. 37 This provides a totally new light on the subject and underlines the urgency of the treaty. Thank you, Mr. Richardson. Chairman ZABLockI. Mr. Pritchard. Mr. PritcHARD. Thank you, Mr. Chairman. I join my colleagues in welcoming our distinguished guest who has served our country so well in so many positions. ' I was very critical of the administration when they were up here, because I thought that they were undertaking a process that was excessively long, and in fact, I guess I questioned their motives. I would like to review just a little bit here. When the administra- tion made its decision on appointments and replacing staff, did they talk to you as the Chairman of the Citizens Advisory Commit- tee? Did you advise them in any way? Mr. RicHarpson. No, I did not, Mr. Pritchard. Mr. PritcHARD. I| find that remarkable. Mr. RicHArpson. I had, I might say, communicated with a number of people after the election in order to urge the designation of my Deputy, George Aldrich, as the head of the delegation. It seemed to me that his outstanding performance as our seabed mining negotiator made him the appropriate person for that role but that was the only kind of communication I had. Mr. PriTcHARD. In your testimony you say “all respected mem- bers of the scientific. community support this agreement.” That is a rather tough statement. Mr. RicHarpson. I don’t think I put it quite that way, did I? I think I said that “most members of the scientific community agree that marine scientific research would be better off with the treaty than without it.” I think this is true of the overwhelming majority of members of the scientific community. That was ticked off in the previous sentence that refers to the widely recognized benefits of the treaty, with the exception of what I would regard as a fringe element. That, I think, is true of all the things referred to in that sen- tence, but I put science in the next sentence because the scientists have, I think rightly, been concerned about the consent regime, so- called, provided for in the text. From the time I came in in January or February 1977, until last August, we fought by every possible means—and I mean every possible means—to get improvements in the science text, and we did achieve significant improvements. This helped to reconcile the scientific community, but in the meantime, as a result of U.S. unilateral action in 1976 in effect inviting every other country to establish a 200-mile zone, they were running into all kinds of problems in getting consent to projects in and around the world which were more troublesome than what they would have under the treaty. The treaty would at least establish consistent uniform rules. It would give them certain dispute settlement benefits. It would help to establish a worldwide approach to science that would be signifi- cantly better than the chaos they are encountering now. Mr. PritcHarp. I asked Mr. Malone this and I think it is an honest question. When we change our administration during the 38 time we are involved in long running negotiations—whether the Panama Canal, the Law of the Sea, or these communications con- ventions, how do we reconcile the views of the new administration and how much is the new administration held responsible for what has gone on before? How do you do this without starting from scratch? Would you give me your thoughts? Mr. Ricuarpson. I don’t have any easy answer to that, Mr. Pritchard. The shift of ideological content of the national leader- ship from the previous administration to this administration was certainly more marked in degree than has occurred in any recent election that I can think of. This has, therefore, made the problem somewhat more difficult than it would be ordinarily. We are a country which to a larger extent than most others— than other democratic countries—changes the leadership of execu- tive branch departments. There are reasons under our system for doing this. Undoubtedly in this kind of context we do pay a price. I encounter among colleagues in the Law of the Sea Conference, including people who in their own countries and Foreign Ministers, Ministers of Justice, representatives to the U.N., a considerable degree of dismay on this‘score. It has raised exactly the question you have touched on. How can we know when we negotiate in the United States whether any understanding reached is going to survive? It does suggest the possible desirability of some kind of consulta- tive mechanism that would help. One might have thought in this case that the fact that the basic elements of the U.S. position had been laid down in the beginning of the Nixon administration, had been maintained without change under Ford and Carter, that all the heads of the U.S. delegation had been Republicans, that we had an advisory committee broadly representative as previously de- scribed, and that we had had constant consultations and hearings with the Congress, like this one, would have minimized these risks. I can only hope that the result of the review will be to reaffirm earlier positions. The realities have not changed. Four Presidents, four Secretaries of State, seven Secretaries of Defense—I don’t know how many chairmen and members of the Joint Chiefs of Staff—have all come out with the same conclusions during all the years since 1966 in which these issues have been addressed. As I say, since the realities have not in fact changed, one would hope they will have the same penetrating power in due course that they have had in the past. Mr. PritcHarp. May I ask one short question? Chairman ZABLOCKI. Yes. Mr. PritcHArD. Is there any country which is sympathetic to the adminstration’s desire to conduct a complete review of these nego- tiations, or feels it is legitimate for us to take more than 9 months to come to a conclusion? You have dealt with these countries. What is their attitude? Mr. Ricuarpson. I couldn’t prove a negative. I don’t know that Here are any. All I can say is if there is any I haven’t encountered it. Chairman ZABLOcKI. Mrs. Fenwick. 39 Mrs. Fenwick. On page 7 you just spoke briefly about navigation. Could you tell us about the freedom of the seas and what has been guaranteed there, if anything? What are the conditions? Mr. RicHARDSON. I would be glad to, Mrs. Fenwick. The provisions on this subject have not changed since 1977 when we had very difficult negotiations with respect to navigation and overflight in the 200-mile economic zone and nailed down the final provisions for freedom of passage and overflight through archipela- gos. So what we have in effect is a regime under this treaty that does guarantee these freedoms for the passage of straits as well as movement outside the 12-mile territorial sea and through sealanes that would be established pursuant to the treaty through the waters enclosed by archipelagos. Mrs. Fenwick. Are the straits specifically named? Mr. RicHARDSON. Oh, yes. Indeed, to go back and give you a historic footnote on this, the first U.N. conference in 1958 dealt with the question of extension of the territorial sea but reached no conclusion. Another conference in 1960 dealt particularly with the territorial sea and the passage of straits because to extend the territorial sea from 3 to 12 miles could result in overlapping of something like 120 straits by territorial waters. That would, under traditional principles of international law, mean there was no right to transit such a strait by submarine traveling submerged and no right of overflight at all. So it was a central objective of the United States, as well as other maritime countries, from 1960 onward, to assure that the extension of the territorial sea would be coupled with the guaran- tee of freedom of transited straits. We have here a curious phenomenon. When I was Under Secre- tary of State, a job they now call Deputy Secretary of State, in 1970 the paramount and overriding U.S. interest in the negotiation of a comprehensive treaty was the politico-military interest in freedom of navigation and overflight; second came oil and gas; third, fisher- ies; and seabed mining was a distant fourth. We have fully and adequately protected U.S. interests in the first three of these, starting with navigation. It is one of those what- have-you-done-for-me-lately phenomena. Personnel in the Depart- ment of Defense who were able, with the help of some of us in the State Department, to get Defense Department interests recognized in ways that completely overrode other departments are now gone, and the whole thing has been turned upside down so that arguable defects in the seabed mining regime have come to dominate all approaches to this subject. But the fact is that the navigational interests have long been satisfactorily met by this text, subject to quibbles over interpretation which in fact are not the subject of any disagreement in the conference. I have repeatedly, for example, in various publications and con- versations with colleagues stated the U.S. understanding of this language, and no question has ever been raised about it. Mrs. FENwick. On the last page of your testimony you speak of, “Such a treaty would, therefore, better serve the national interest A0 in access to strategic minerals than a vulnerable reciprocal regime to which only a handful of industrial countries belonged.” Is that the rather grim alternative that faces us if we do not sign this treaty? What are the alternatives? Suppose we don’t. What could happen? Would the other industrial nations join up with the other nations of the world that want the treaty and leave us out? Mr. RicHARDSON. Even if the other countries’ representatives in seabed mining did join us, we would still only be a handful, but you have raised a different point which is an important one, and that is that we might find at the end of the day that even they or some of them had decided to join the treaty regime and not our little club of industrial countries. They could have a number of reasons for doing this. They might, for example—it is certainly true of the United Kingdom—conclud- ed that their paramount interest in the treaty is in the provisions that secure coastal state jurisdiction over the hydrocarbons in the continental shelf beyond 200 miles. Other countries might decide that the marginal economic advan- tages of operating outside the treaty were outweighed by the legal security of operating inside and that, given their dependence on overseas sources, they would prefer the security to that economic margin, and so on. Third World relationships could have a significant degree of weight, and these might influence, in the case of France, for exam- ple, a decision to go forward under the treaty rather than to join with us and a few others in a reciprocal regime. Mrs. FENwIcK. I see my time has expired. Thank you. Chairman ZABLOocKI. Mr. Dornan. Mr. Dornan. Thank you. Mr. Secretary, I, too, want to join my colleagues in compliment- ing you for taking on a task that easily has to have been as difficult as any of the great branches of our executive department that you headed ably for years. You made a statement that fascinated me. You said that the change to the last administration had been a greater ideological shift from one administration to another than any in recent memory. One would assume from that statement that you mean the ideo- logical shift from President Carter to President Reagan is greater than the shift in thinking in the approach to economic and even international affairs than it was from a Nixon-Ford administration to a Carter administration, than it was from President Johnson’s dee ation to a Nixon administration. Is that a fair assump- ion? Mr. Ricuarpson. Oh, I think, clearly, yes. Having served in all these adminisirations—my first Presidential appointment was by President Eisenhower; I served throughout his second term—I think the answer is clearly yes. _ Mr. Dornan. I am building up to something here, not just fish- ing for your fascinating observations on recent history. It would seem then that some of the charges of those of us who unabashedly call ourselves conservatives would be true in your estimation when we said, without alluding to some demagogs from 4] the South about not a dime’s worth of difference between the two parties, when we made the change those of us who consider our- selves responsible conservatives that there was an awful lot of me- tooism in the Republican Party as opposed to what to do about the unbelievable growth of the Federal Government in the last four decades. Would you say some of those charges of me-tooism were correct? Mr. RicHarpson. Yes, I certainly would. Of course, by the time of the 1980 campaign the concerns about the growth of the Govern- ment and the burden of regulation had become very widely shared. It is somewhat ironical, although I am regarded as a liberal or moderate Republican, that I first made a speech urging block grants in 1967 and wrote a book in 1975 which developed at length the problem of excessive intrusion by Government, so I don’t think that alone is the earmark of conservatism. Mr. Dornan. I agree. Mr. RicHARDSON. There are certainly many such differences, in- cluding attitudes toward multilateral international organizations. That is a set of concerns as to which my own views tend to diverge from those of many conservatives. In the case of this treaty, for example, the criticism, as I said earlier, has shifted from a criticism by mining company representa- tives of features of the seabed mining regime to an attitude on the part of some conservatives of general hostility toward any sort of international seabed authority exercising supernational powers. Mr. Dornan. Each one of our great parties and each one of the major ideologies within those parties has its fever swamps, and I feel it is totally unacceptable from what I now call my administra- tion, to put off until August coming to some sort of resolution on this treaty. However, I can sense without being overly apologetic, for a view- point with which I do not agree, and unfortunate paranoia among conservatives who now have real power for the first time in their lifetime that everything is suspect that came out of this long era— also, my entire lifetime of 48 years—of massive Government intru- aon and then a lot of me-tooism on the part of our Republican arty. What I hope to convey to the administration in the White House is don’t, to use a weak cliche, throw out the baby with the bath water and think that everything that came out of every adminis- tration is tainted. I think the Carter administration showed some skill in keeping Peter Benzinger on at the Drug Enforcement Agency from the Nixon administration, and in assigning you this most difficult task it gave a reputation, your reputation, the impact on the interna- tional scene that was needed to move forward with this treaty. I would like to read to you from one of the so-called conservative think tanks on the Hill formed the year I came here in 1976, the Heritage Foundation. I will read it-slowly so you can absorb it. I want an impression of whether you think there is any merit to bilateral agreements and seis of the good things in the treaty that everybody agrees are good. 42 Achieving Law of the Sea Gains. The current Law of the Sea proposal contains several positive aspects with regard to protection of navigation rights through international straits, setting territorial limits of 12 miles, establishing economic zones to 200 miles. ; 7 ; : Additionally, the treaty provides for a cooperative international fisheries regime aimed at safeguarding and conserving migratory and endangered species as well as providing protection for marine mammals and other components of the fragile marine environment. The above benefits can be equally obtained through bilateral relationships with the affected nations who are negotiating specific agreements through the U.N. General Assembly or existing organizations such as the U.N. Environmental Pro- gram, the International Civil Aviation Organization and the Intergovernmental Marine Consulting Organization, to name just a few. The base approval of the treaty on fears of losing a few good benefits while accepting a number of potentially harmful provisions would be ill-advised and possibly worse than no treaty at all. If worse comes to worst and we see August lead off into nothing, Mr. Secretary, would you recommend a positive approach here to trying to save all the best parts of the treaty through the approach analyzed here in this Heritage Foundation background paper. Mr. RicHarpson. I couldn’t honestly do that. The American Heri- tage background paper is demonstrably wrong on a number of points, indeed, ill-informed. Take, for example, the reference to the Intergovernmental Maritime Consultative Organization Conven- tions. One of the reasons why this treaty is so important from an environmental point of view is that it makes binding on all member states the internationally established standards which emanate from IMCO. There is no way in which more than a relatively small number of countries can be induced to ratify IMCO Convention. None has ever been ratified by more than a relatively small number of countries. This document, as I explained at length in an article in Oceans magazine, greatly extends the reach of IMCO’s standards for design of tankers, for discharge standards, or toxic substances, by incorpo- rating in effect by reference the standards established by IMCO and making them binding on a number of countries which will be much larger because of the array of inducements to join that are held out by this document. With respect to the straits, I think it would be an exceedingly shortsighted and ill-advised policy to undertake to negotiate bi- laterally with groups of straits countries, as in the case of the Strait of Malacca, deals for the transit of U.S. ships. We would, in effect, be confessing that these states control straits — passage. We would be forced into bidding for such rights against the Soviet Union or other countries, and we would be subject to the cancellation of these rights as the result of a change of regime. I cannot imagine a representative of the Joint Chiefs of Staff endorsing such a course. The evidence of it is a fundamental reason why from the outset the Defense Department has been the driving force behind the U.S. effort to get this treaty. There are other references there with respect to the breadth of the territorial sea. Again, one of the reasons why these negotia- tions were initiated was in order to halt the process referred to as “creeping jurisdiction” under which states were claiming 12-mile, 24-mile, 80-mile and, 200-mile territorial seas. 43 One thing that is not adequately understood about these negotia- tions is that the interest of the United States is not simply in having the power to transit straits or territorial or economic zones. It is to gain the right to do so under universally accepted rules. Because the United States has political relationships with every country, we cannot afford merely in order to assure the transit of our tankers without harassment by coastal state environmental rules, to incur cumulative political ill will. We don’t want to have to count the costs every time we send a carrier task force through the Java Sea. This is why as a superpower we need rules. It is not sufficient for us to say, ““We are on the right side of the issue. We don’t recognize the extention of the territorial sea 3 miles or 12. Therefore, we insist that there is still a high seas lane through the Strait of Lombok or the Strait of Malacca.” But if there are 120 other countries that say, “We don’t agree with you, we believe that the 12-mile territorial sea has now become assimilated into customary international law,” then, if we defy that position, we do so at cumulative political cost. I could elaborate. Bilateral negotiations are expensive. A bargain is a bargain. You can’t assume that representatives of the United States will always be able successfully to overreach the representa- tives of little countries. It doesn’t work that way. Bargains in which we gain excessive advantages are inherently unstable. The result, therefore, is that we have benefited in many instances unrecognized by the American Heritage Foundation by broad multilateral agreements under which we don’t have to keep bargaining. This, by the way, is a respect in which the American Heritage Foundation is fundamentally off base with regard to economic aid. We should be in a position to have sufficient bilateral aid re- sources so that we can, through bilateral aid agreements, factor in political considerations. The United States has an interest in the economic development of the sub-Saharan and Sahel on humanitarian and moral grounds as well as other considerations such as a long-term concern with global stability. This interest is unaffected by whatever political advantages we can extract by squeezing some concession out of the Central African Republic. There are uses of multilateral institutions because they are mul- tilateral that cannot be obtained through bilateral negotiations. I think this is a matter that becomes clearer the more closely it is examined. Mr. Dornan. Thank you for that thoughtful answer. My time has run out. If I could just say in concluding that I think human patience always reaches a breaking point and I hope after putting so many years into this effort you stay with it in the area of unofficial guidance so that those of us who believe the administration is making a mistake in taking so much time to reevaluate the matter, they should be well aware of how generous you were in your immediate analysis of the new administration’s right to take an- other look at this. 44 I would hope without any disregard for my colleagues on the other side of the aisle, those who have an interest in this will follow it closely and are already in accordance with you. If I can inform you of something that was a nice precedent yesterday, all of the Republicans of the House Foreign Affairs Committee had a breakfast with the Secretary of State. I think if you would write to each one of the members of our side of the aisle of this prestigious committee so that we can develop a consensus quickly, to use our good offices to lean on the adminis- tration, to move forward with this historical document which I think—and I hope this isn’t being hyperbolic—is a predecessor to the law of the galaxies. We are already seeing articles about how we are going to mine asteroids on the closest planets in outer space for minerals that are more common there than in this planet, that we simply have to do something quickly in this whole area and your advice is invaluable. Anything you want to communicate to the Republicans, I can promise you our senior members will have meetings where we can immediately project to the administration that this is not just a democratic concern in the House, it is a Republican concern in the House and the Senate to move forward with this incredibly impor- tant treaty quickly and not take a year to analyze it. Thank you for your voluntary efforts over the past few months. Mr. RicHARDSON. Thank you very much, Mr. Dornan. Mr. Dornan. It has been indicative of your spirit in decades of service. Chairman Zasuiockt. May I ask the gentleman from California, does he want the last statement on the record because it is a confession? Mr. Dornan. Yes. The confessions of St. Augustine have been a big seller for centuries and that puny, little confession I don’t mind being circulated broadly. Chairman Zasiockt. I do wish you, Mr. Secretary, good luck in trying to convey religion to some of my colleagues on the minority side. We already have the faith. That is in jest. My Republican colleagues very often come to the fore at moments I least expect them to. Mr. Leacu. Thank you. I would like to comment to the gentleman from California that I find his constructive judgment very, very impressive and his galac- tic imagination also quite interesting. Mr. Dornan. Will the gentleman please yield? Mr. LEACH. Yes. Mr. Dornan. A ghastly but extremeley popular movie last year was the “Alien” and the scene began on a gigantic galactic freight- er bringing back minerals to the planet Earth, and when I consider my father was 11 years of age when the Wright Brothers flew, I expect to see that happen literally in my lifetime and the sea is just a backyard situation of what we will expect when all the nations look toward the first nation that ventures into outer space and it will probably be the United States. If it is not us we know who it will be. 45 This treaty may be the Magna Carta prototype of how we are going to benefit smaller nations when we reach out for commercial concerns to outer space. I thank the gentleman for yielding. Mr. Leacu. I thank the gentleman. I am reminded of a famous English cartoon by a man who is my namesake, John Leech, showing King John signing the Magna Carta with all the princes and dukes around pressuring him into it. I have the feeling we may have that situation in our own Gov- ernment today. Mr. Secretary, it has been noted that every Chairman of the Joint Chiefs has supported the Law of the Sea. It has also been noted that some of the mining companies have serious reservations about it. If the law were even more restrictive on the mining companies—to the point of being prohibitory, would you assess our security interests as so much more important than mining inter- ests that we should go forth in any regard? Mr. RicHARDSON. I have never had to think through, Congress- man Leach, the question of whether or not the United States should ratify a treaty less satisfactory than the present text for seabed mining or even ratify the present text. First, because I have felt from the outset that we could still improve it, and I think it is fair to say that the present circum- stances marginally enhance the opportunities for improvement. Second, because it has been my view ever since I began to focus on the role of the Preparatory Commission that will come into being after the treaty is signed, that we should wait until we see the work of the Preparatory Commission before making up our minds. This is so because the Preparatory Commission will have the function of drafting rules and regulations. It is a function essential- ly like that of the Internal Revenue Service writing rules after enactment of a new tax code. Some of the concerns of the mining companies with respect to the treaty are concerns that arise out of possible interpretations of the text. The rules and regulations will be more detailed. There is one very concrete example. I have said here the United States is as- sured access because the text spells out the qualifications of appli- cants in clear objective terms and because these qualifications have to do only with the financial competence and technological capa- bilities of the applicant. The rules and regulations will have to go into greater detail as to what exactly is being taken into account in order to enhance the assurance that there is not the opportunity for the politicization of the process. So I think that the United States should not decide whether or not to submit the treaty for ratification until after the Preparatory Commission has completed its work. This allows me to highlight what I consider to be among the most significant gains of the negotiations conducted last August. Quite clearly, if we intend to place significant reliance on the detailed provisions of the rules and regulations, we need to assure 80-949 O—81——4 46 that the rules and regulations cannot be changed in ways that reduce that reassurance. This has been accomplished first by getting agreement in the final clauses, article 308, I think it is, on a provision under which the rules and regulations drafted by the Preparatory Commission will become the rules and regulations that take effect on day one when the International Seabed Authority comes into existence. After that the rules and regulations cannot be changed over the objection of the United States. So what we would be presenting to the Congress, then, is a package containing the treaty language plus details which we would have had a large role in working out. Mr. Leacu. I would like to ask a little different type question. Without a treaty, we will have problems with regard to interna- tional laws on the straits, with regard to conflicts involving mining companies whose attempts to mine the sea are challenged in one forum or another, et cetera. Do you think those problems would enhance the likelihood of conflict in the world, and is a reduction in potentialities of conflict a very serious rationale for this treaty? Mr. RICHARDSON. Yes, it is. This prompts me to cail attention to one of the points made in the passage from the American Heritage Foundation publication read by Mr. Dornan. It referred at one point to what could be accomplished by U.N. General Assembly resolutions. This treaty is a legislative document. The U.N. General Assem- bly resolutions do not have the force of law and they are not backed up by any dispute settlement machinery. This treaty takes effect as internal law as well as international law in all the coun- tries that ratify it. That means, then, that they accept the obligation to submit disputes to binding settlement. They have the option of agreeing to submit the dispute to the International Court of Justice or to the Law of the Sea tribunal that would be established under the treaty. If they cannot agree on either of those alternatives they must accept binding arbitration. That means they have the obligation to submit the issue to arbitration and they are bound by the result. There are some exceptions where the obligation is only to submit the issue to conciliation, but, broadly speaking, the dispute settle- ment machinery is binding both as to the obligation to submit the issue and as to the acceptance of the result. That means, therefore, that you do have a major gain in conflict avoidance and prevention by this means but a major contribution also for the reason I touched on earlier, namely, the universality of the rules. The very fact that the world community has agreed—I men- tioned this in the context of science and also in the context of navigation, seabed resource exploitation—on the definition of areas and boundaries has contributed to conflict prevention. Take, for example, oil and gas. Oil and gas, of course, are vastly more important economically than manganese nodules. This total world market for nickel today is only about $2 billion annually. So you are talking about a seabed mining industry which at its peak 20 years from now might be generating no more than an annual volume of $2 billion in current dollar amounts. AT Oil and gas is a totally different story. It is estimated that somewhere between 30 and 40 percent of all the world’s oil and gas reserves are within the continental margin under salt water. There is room for serious dispute over limits of coastal state jurisdiction under the vague provisions of the existing Continental Shelf Convention. It provides that the coastal state jurisdiction extends as far as the existing technology permits the exploitation of the resources. That means that the coastal state claims have been moving out steadily as technology has evolved and are at the point of colliding with the claims of the international community for the jurisdiction of some international machinery over the common heritage of mankind. This is why the broad-margin countries, including the United States, Canada, Great Britain, Ireland, Norway, Australia, New Zealand, India, and Argentina, attach importance to the provisions of this treaty defining—a very complicated definition to be sure— defining the outer limits of coastal state jurisdiction. This is why the American oil companies unanimously favor the treaties. Some of them have delivered testimony which addresses the problem of hydrocarbon potential beyond this line, but I don’t know of a single responsible oil geologist who thinks there is any oil or gas beyond the line brought within coastal state jurisdiction by the treaty. So there again—one could go through the whole treaty whether talking about protection of whales or any of the other things I have already touched on, and a lot more, and point to the ways in which it contributes to the prevention of disputes and the resolution of conflict. Mr. Leacu. Given the possibility that after review this adminis- tration may refuse to sign the potential treaty after review, would your assumption be that many others would sign in any regard? If that occurred, would this put the United States of America in a very awkward diplomatic position and would it also have ramifica- tions in many other foreign policy dimensions? Mr. RicHARpDSON. It is impossible to give you a confident answer to that question, but my best guess is that most countries would go ahead and adopt the treaty anyway and that a very large number of those would ratify it. That would create a very awkward situation for the United States both legally and in terms of our diplomatic relations with other countries. This would be more true if, as I said in answer to Congresswom- an Fenwick’s question, some of the countries belonging to the advanced Western industrial group would decide their interests were on balance better served by the treaty than without it. Mr. Leacu. Thank you, Mr. Chairman. I would just like to comment in conclusion that, like everyone on this committee, and in the Congress, I am very impressed and appreciate the hard work you have put into the Law of the Sea. Further, I think even more impressive than the work you have put in has been the tenor of your position since you gave up your position as chief negotiator. 48 Your presentation is a classic example of how the weight of argument is a far more persuasive and effective means of advanc- ing a cause than loud and abrasive martyrdom. wing I personally admire your stand during and after the negotiation of this document. Chairman ZAsBLock!. Mr. Bingham. Mr. Bincuam. Thank you, Mr. Chairman. I would like to return to the subject of what the mining compa- nies would do if there were no treaty and clarify one point. You said earlier that if there is no treaty the mining companies would not invest. Would that still be true if there were the kind of reciprocal agreement worked out with the other industrial coun- tries that you referred to at the end of your statement? Mr. RicHarpson. Yes. I believe the answer to that is clear. They would not invest under reciprocal legislation of the kind that has now been adopted by the United States and the Federal Republic of Germany. They would not do so even if a handful of other countries, for example, France, Japan, The Netherlands, Belgium, were to enact similar legislation. Mr. BincHAM. Would you explain why you think they would make that judgment? Mr. Ricwarpson. There are basically two reasons, both of which would affect the judgments of boards of directors as well as the lenders to prospective investors. The first is that the rights to a particular area of the seabed conferred by the reciprocal legislation would have to be recognized only by the countries that had enacted that legislation. No such country, including the United States, asserts as a legal position that it can confer rights to engage in seabed mining that are required to be recognized by any other country except a country that chose to recognize them, and as to that proposition there is no dispute whatever. The result, therefore, is that any other country can charter a mining company to mine in the same area, and there are quite a few countries in the world today that have plenty of money for the purpose if they choose to use it. The consequence, therefore, is that a mining company estab- lished by some OPEC country, for example, could wait to see where an American company began to conduct seabed mining and then in effect piggyback on the investment made by the American or German company or whoever it might be in identifying the area as one with rich beds of exploitable nodules. The second reason is that so few countries maintain the position that there is a right under international law to engage in seabed mining. This fact inevitably creates the potential for a vast amount of legal harrassment and litigation over the assertion of such a right by one of the reciprocal countries. There are many ways in which such litigation might arise in the courts of other countries. It would be likely, at some stage, to culminate in the International Court of Justice, and a measure of the risk is one’s guess as to what would be the decision of the International Court of Justice. I know many lawyers who would 49 predict that the decision would be that there is no high seas right to engage in deep seabed mining. At any rate, whatever the odds, one would be risking the invest- ment of a billion dollars in a single seabed mining project against the hazard that the ICJ might issue such a ruling, and all of the countries that we are talking about are bound by the statute of the court. Mr. BINGHAM. I believe you said earlier that you would not have given the answer 1 year ago or 2 years ago; that mining companies would not go in without a treaty; am I correct? Mr. RICHARDSON. Yes. Mr. BINGHAM. What has been the factor to change your position on that? Mr. RicHarpson. My position has not changed, only my tactical judgment as to whether to answer the question. I never believed that any mining company would ever invest under U.S. legislation. Mr. BrinGHAM. Oh, I see. Thank you, Mr. Chairman. Chairman ZABLOCKI. You have been generous with your time, but I think for the record, I would like to ask a couple of additional questions on which I would like to have your views or assessment. It is my understanding that the Conference has operated on the principle of consensus. If the proposals for changes that the seabed mining industry’s checklist includes were to be put forth, would the proposals generate wider consensus or not? Mr. RicHArpson. I am sorry, Mr. Chairman. Which proposals are you referring to? Chairman ZABLOCKI. The seabed mining interests’ checklist. I understand there is a checklist that may be accepted by this ad- ministration, and if that were included in future negotiations, would this checklist enhance it, or generate wider consensus at the Conference? Mr. RicHARDSON. I have not seen the checklist, Mr. Chairman. I think it would, of course, depend on what is on it. I think that I could imagine a checklist, including all the items referred to in my own testimony, which would have a good chance of consensus, perhaps not every item and not every item in the form in which we initially proposed it, but we could get a high percentage of it through, depending on how far the list goes. I don’t myself believe that the industry leadership would come up with a list now that I would regard as out of sight. I might think that they could not get everything on their list, but I think that a carefully drawn list which perhaps went beyond what we really hoped to get at the end of the day would have a good chance of consensus. Chairman Zasiocki. Well, you did say that the seabed mining industry recognized a treaty ‘improved i in realistically possible ways would be preferable to no treaty at all. They agreed to that. I interpret “realistically possible ways’ to mean certain recom- mendations that the seabed mining industry would request. Mr. RICHARDSON. Oh, yes. Oh, yes, it would. I have reflected, even in my own rather illustrative references in my testimony, to some things that I know the industry would regard as important. 50 I went through—it should be noted just for the record, that I only referred to things touched on by Mr. Malone. _ I was trying to make the point that if you put aside the radical renegotiation of the parallel system itself, and the essential com- promises intrinsic to the parallel system, everything else that Mr. Malone referred to, everything else could be the subject of a list that would have a good chance of adoption. I can imagine some additions to that list by the industry that I would also think would have a good chance of acceptance. Chairman ZaBuLocki. Is my understanding correct that the Con- ference might agree to minor changes but not major changes? What would you consider a minor change, and what would you consider a major change? Mr. RicHarpson. Well, I would rather adopt a classification of radical changes a three-tiered rather than a two-tiered classifica- tion. I would consider a radical change the proposal to do away with the parallel system and start with some wholly different kind of international regime. I would put on the radical change side the attempt to get rid of the technology transfer obligation altogether. I would put on the major, under the major change heading, a provision to relax the production ceiling. Of course, the provisions on interim investment protection would be major improvements, but since they are not included in the treaty at all now, they would not be major changes. The elimination of the Brazil clause would be a major change, and very difficult to get, I think. A minor but quite important change would be a provision for commercial arbitration of actions by the Legal Commission in pass- ing on the approvability of a plan of work. This would eliminate a significant concern and should not be a serious problem. Another major change, although, as I said in my testimony, it would only be declaratory of the intent of the Conference anyway, would be some provision that explicitly guaranteed a seat on the Council to the United States. Chairman ZABLOcKI. Mr. Richardson, I again want to express our appreciation for all the work you have done in this field, and I want to wish you well in the future. Thank you. Mr. RicHarpson. Thank you very much. May I say one further word and extend the record in answer to Mr. Bingham? I gave him an answer which made it clear that I all along had the view that no American mining company would ever invest under the seabed legislation, and I said I would have given the question a different answer at an earlier stage. I don’t mean that I would have lied to you, Mr. Bingham, but I would have avoided the question. I think the record would show that in various ways the question has come up, and I don’t believe I have ever said that I thought that mining companies would invest, although I am sure that it was clear that I was for the enactment of the legislation. I was for the enactment of the legislation. 51 I thought I ought to make that somewhat clearer, lest there be some misinterpretation of what I had earlier said. Mr. BinGHAM. Thank you for the clarification. I repeat that I think your judgment on this is very, very significant and I think by itself would affect the thinking of many Members of Congress on that issue. Mr. RicHARpsON. It has been very frustrating over all this time to have to sit there in various public gatherings and so on, and to hear people talk about how bad the treaty is and how good it would be if we could only go forward on our own while being convinced that we never would go forward on our own. It is only, as I said, the change of circumstances—I won’t repeat—that has in a sense liberated me. Now, I am fighting for the treaty, for the survival of the treaty for a whole set of reasons, and I don’t think by saying this now, I am prejudicing at all the chances of the United States to get improvements in it, because the risk is now, as perceived by me as well as by the rest of the world, that we may kick it over altogeth- er. Chairman Zas.ockt. Well, in closing, let me comment, perhaps you should consider changing your middle initial from L to J for Job. Thank you very much. [Whereupon, at 5:05 p.m., the hearing was adjourned. | ate 98 danhis i 7 i back: Dex tr a = slaviedt; hal uov.edned Toxtali authege 1 acgey seal! naytesery asi ny ipa hail hac Seanveitures orth tagtiet : wt nara hyly acwld be the sabj m.patiadiaust in a. mee: ear jl .woadst Sek comet wy ating Ags si LEaDg % we Bit ; ; dae as VELA ab £2 1 bad. Was luede val Repaketapien lon high Tere, 19.-ae hase Teh Mar aD ebisted a8 tio thd) are, ie GO. Dig rah. a8 ion cy: * voRege ee si Bathe Tage snow brat ime ly ONG hg 44) dackey OTe Me" . é FS, vARor! etd do, Ageuiirs we arid wat 2iacstied) eh ast HM gran eed Wats VRS th Pm sea e 3 ‘eal i Pugs exiQH Std, Wh aa at episie betta ot i asoneio oni its t8 On BB Gis) Ks oiiaar ct, as nese . POLL: ahs Sas Sp9K iol BIG cnbpmeaita BONO 3 fol ¥ fg ROR NY S67 ‘7 at Ces Cte to leat og fertere yn ie iy: Set ae) rire s pola was WIGS. 85 FA OR, OG} B jn} PAAHROF: La Sih) the, te aiiinl ginples aoy RoE eA 2 ee Le ¥ xi ts. we “ye Ly wong BAO. Te ‘ ; $4 goth MRED. 2 WTIaTe Hf an, sari cagew E deste ‘wou HAVE Lied 7 “a. Str. Bingham, but l would havea Labi the voewnd would show that in variona ee heim wares Uh, Bet Adon t heheve. | , mye said t thant iiGies cOtapapion wal. ievert, «ithough Lane Went char Sat tweet foe Ge kosctmen: of 2 lowed Slee aetvones; oT tle fag inti ow, . as win Hh my - be APPENDIX 1 U.S. DELEGATION REportT—10TH SESSION OF THE 3D UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA—MarcH 9-ApRIL 24, 1981, New YORK ~ SUMMARY The tenth session of the Third United Nations Conference on the Law of the Sea was dominated by reactions to the United States announcement on March 2 that it was undertaking a policy review with respect to the Convention and that the United States delegation would be instructed to seek to ensure that the nego- tiations would not be completed at this session. As a result, while there was some intensive discussion of a few issues, no new texts or agreements emerged. As its start, the Conference elected Tommy T. B. Koh of Singapore as its President to succeed the late Hamilton Shirley Ame rasinghe | of Sri Lanka, who died in December. At the ninth session, the Conference had identified three Major outstanding issues: preparatory investment protection, the resolution on the preparatory commission, and participation in the Convention. With respect to preparatory investment pro- tection, the immediate reaction of the Group of 77 to the United States policy review was to refuse to discuss this issue so long as the United States was unable to make commitments. With respect to the preparatory commission, there was considerable discussion in the First Committee and in its Working Group of 21, but no new drafts were proposed. With respect to partici- pation, there was a further debate in the informal plenary, followed by intensive consultations held by the President, which served to clarify the legal issues involved in partici- pation by entities other than states. Again, no new texts were proposed. While work continued between the two interest groups con- cerned with respect to delimitation of offshore zones between states with opposite and adjacent eoastsy no agreement was reached. The informal plenary met and approved almost all of the proposals of the Drafting Committee regarding Second and Third Committee texts. The tenth session of the Conference will resume in Geneva on August 3 for four weeks. The Conference may decide to extend that session for a fifth week. The Drafting Committee will hold an intersessional meeting in Geneva from June 29 to July 31; it will direct its attention to Parts XV, XVI and XVII of the text, turning back to Part XI and Annexes III and IV in the last two weeks. (53) 54 \ REACTION TO US POLICY REVIEW The reaction to the U.S. policy review was characterized by bewilderment and frustration. Many Conference participants had believed that this would be the last negotiating session of the Conference; those who were skeptical thought remaining matters could be cleared up this summer in time for signature in Caracas soon thereafter. ; The announcement of the U.S. review was followed by wide- spread endorsement of the basic package embodied in the Draft Convention as it stands by developing countries, the Soviet bloc, and some Western countries. Three motivations appear to be prevalent in this reaction among foreign delegates: 1) A desire to conclude the treaty quickly. The reasons for this range from fatigue and frustration with the length of these negotiations and the need to show a tangible end product to a concern that existing trends in the law of the sea toward expansion of coastal state controls of navigation are prejudi- cial to their national interests and may soon render the existing provisions on navigational freedoms unratifiable by coastal states. ; 2). A desire to avoid making further concessions to the United States with respect to deep seabed mining. 3) A desire to avoid encouraging their own governments, or third states, to reopen other matters in the Convention ih response to U.S. proposals for changes. No delegation seriously questioned the right of the U.S. Government to carry out such a review. While some were annoyed at its timing and our inability to give more notice, most were much more concerned about the outcome. Thus, statements of foreign delegations were characterized by efforts to affirm the basic “package deal" as it stands and stress the difficulty of considering any fundamental changes in that deal. Neverthe- less, they stopped short of presenting the draft as it stands ona “take it or leave it" basis, and were keenly aware of the need to avoid provoking a sharp negative reaction to the Convention. This led to numerous statements toward the end of the session that the reservoir of good will for the United States was not inexhaustible and that the United States should not misinterpret moderation at this session as a sign of weakness. The arguments: made stressed two basic themes. The first was the issue of the credibility of U.S. participation in long- term negotiations, in this case, negotiations that were begun 55 in 1967 and carried on under presidents of both parties. The second theme was that "a single state" could not be permitted ° to stop the entire world from concluding such a long-range effort. While recognizing the classic problem of reconciling inegualities of wealth and power with the sense of national dignity inherent in the legal equality of states, some of the delegates seem to be warning that public embarrassment would not be tolerable to them.or their governments whatever the consequences of defiance. There is widespread recognition of the need to deal with the United States if at all possible. Thus, for example, it is now generally recognized -- as the United States stated -- that the resumed tenth session in Geneva will be for the pur- pose of considering the problems identified in the U.S. review, but that the review may well not be finally completed until after the session. President Koh speaks of “benign pressure" on the U.S. to complete its review before August. ELECTION OF THE PRESIDENT The death of the long-time President of the Conference, Hamilton Shirly Amerasinghe of Sri Lanka, necessitated the election of a new President. Since the previous President was Asian, and since the various chairmanships were distri- buted among the regions, it was generally expected that the primary responsibility would fall on ‘the Asian Group ‘to select a candidate generally acceptablle to the Conference. The principal candidates were Satya Nandan of Fiji and Christopher Pinto of Sri Lanka. Repeated polling in the Asian Group revealed a split between the candidates, with a significant number of delegations casting votes for neither candidate. There were persistent rumors that the Soviet Union was attempting to maneuver a "compromise" on Dr. Jagota of India, but this did not materialize. - As expected from the outset, in the end Ambassador Tommy T. B. Koh of Singapore emerged as the consensus candidate of the Asian Group*and was elected by the Conference by consensus. Loas, Mongolia and Vietnam reserved their positions within the Asian Group, but did not block a consensus. NEXT SESSION Considerable time was devoted to the question of the next session of the Conference. The issue was of interest because of its effect on the expectations of states regarding the outcome. ; 56 There was a general desire among developing countries to schedule a long resumed session of six weeks this summer to complete the negotiations. This reflected in part a genuine frustration by developing countries with the length of time that these negotiations have taken, and in part tactical con- siderations related to the United States review. The United States indicated that since it was doubtful that final decisions could be taken in the review before August, it would be preferable to hold a session next year. In acceding to the general desire to hold a session in August, the United States made clear that it viewed such a session as an Oppor- tunity for informal consultations rather than definitive nego- tiation on texts, and that it did not expect to complete its review: until after the August session. The resultant compromises on the timing of the next session reflect a general, but not explicit, acceptance of the desirability of avoiding confrontation on the issues at this point. Thus, while the four week session can be extended to five weeks, the decision on whether to extend it will be taken by consensus if at all possible. While the Drafting Committee will work for five weeks prior to the session, it will not turn to deep seabed mining texts until the last two weeks. COMMITTEE ONE The First Committee held two formal meetings and four informal meetings before shifting to an informal WG-21 format. Events in the First Committee at this session were signifi- cantly affected by U.S. positions announced before the Con- ference. While discussion of the Preparatory Commission ‘resolution continued, no serious negotiations were conducted. The Group of 77 itself precluded any work on preparatory investment protection so long as the United States was unable to commit itself to the package. First Committee Chairman Paul Engo held private consulta- tions with the EEC countries, Zambia, Zaire, Zimbabwe, and Canada, on the production limitation. The consultations were based On papers prepared by Zaire, Zimbabwe, and Zaimbia attaching the Secretariat's report (see below). No changes occurred in the text as a result. U.S. participation in all work was minimal and was expressly qualified by our position regarding review of the convention. Secretarial Reports The Secretary-General's representative for Law of the Sea presented two reports to the conference in the First Committee. 57 One, which had been requested at the last session of the con- ference by certain land-based producers of seabed metals, was a definitive study of the operation of Article 151, paragraph 2 =-—) the Production Limitation (A/Conf.62/L.66). It was accompanied by voluminous tables showing how much production would be allowed under certain assumptions. A second report on financial implications of a Prepara- tory Commission and start-up of the International Seabed Authority (A/Conf.62/L.65) was also presented in the First Committee. This report gave costs for the operation, admi- nistrative support and housing of the PrepCom given assumptions made by the Secretariat about its size and duration. It also costed out start-up of the Enterprise under certain assump- tions. During discussion on the Production Limitation paper, Zaire, Zambia, and Zimbabwe, with Canadian support, urged that the report be supplemented with work on the implications of Article 151 for metal markets and the economies of relevant countries. There was no broad support for this request. The Canadian Delegation followed this up with a proposal that a technical group be formed to continue work on Article 151, paragraph 2, without specification of the Technical Group's term of reference. This proposal was rejected by all speakers except Zimbabwe, Zaire, and Zambia. Working Group of 21 The Working Group of 21 (WG-21), of which the United States is a member, met in sessions open to all delegations to discuss the draft resolution to create the Preparatory Com- mission contained in A/Conf£.62/L.55. This group was co-chaired by Paul Engo of Cameroon in his capacity as Chairman of the First Committee and 1T.T.B. (Tommy) Koh of Singapore as President of the Conference. The WG-21 then woved through the Preparatory Commission resolution in a general fashion. The WG-21 began with a substantive debate on the status of Preparatory Commission drafts of rules, regulations, and procedures. G-77 delegates in general attacked Article 308, Paragraph 4, of the ICNT, Rev. 3, which specifies that the PrepCom drafts of rules, regulations, and procedures will be the provisional rules, regulations, and procedures of the Sea- bed Authority until others are adopted by the Authority. Generally, developed countries defended this approach as the only way to assure those ratifying the treaty that the Seabed Authority would operate in the manner foreseen by them. The decisionmaking procedures of the PrepCom were also vigorously debated. 58 Participation in the PrepCom (the so-called Ticket of Admission problem) was. thoroughly ’ debated. Industrialized countries expressing a view preferred that signatories of the Final Act be full particpants in the work of the PrepCom and its decisionmaking procedures. since that would provide the broadest possible participation in the PrepCom. Developing countries demanded that full participation be reserved for signatories of the convention so that only those who had already. indicated their intent to become parties to the con- vention could become full members of the PrepCom. The WG-21, after reviewing the broad issues involved in the PrepCom, shifted to a more private atmosphere in which only members of the WG-21.and the co-chairmen were present. Chairman Engo then led the group through a paragraph by Paragraph review of the resolution text with a view BoE EG producing another iteration. The process proved to be slow and contentious. Never- theless, the WG-21 came close to compl oenid a sentence by sentence review of the text... Chairman Engo's report on the session -contained no new - drafts, om suggestions for the text. » The report desenibed@ar a general manner the activities of the session and noted efforts made to develop consensus. The U.S. Delegation confined its participation in the debate to noting our need to review Law of the Sea issues. In the case of PrepCom issues, the U.S. Delegation noted that the PrepCom could not be discussed in isolation from other issues which would’ be under review in the U.S. in coming months. ; Other Issues Other Committee I issues were referred to in passing only and the texts of Part XI and Annexes III and IV were given no substantive discussion. Private conversation indi- cated that most delegates were awaiting the outcome of the U.S. review before making any further moves. The site of the Seabed Authority was discussed and Support was registered for Jamaica. The African Group and the Latin American Group stated tht it was the consensus of their groups that Jamaica should eventually be chosen. Fiji and Malta (the other countries which have offered to host the Seabed Authority) found discussion of. the issue at that eos inappropriate. 59 COMMITTEE TWO The Second Committee held four informal meetings without agenda to permit delegations to raise any questions deemed important to them. The articles receiving primary attention were 2] (warship passage in the territorial sea), 58 (warship activities in the 200-mile economic zone), 60(1) (military installations and structures), 60(3) (duty to remove installa- tions), and 63 (straddling fish stocks). Private consultations were also held among delegations on the subject of delimitation of maritime boundaries between opposite and adjacent states. No changes in text emerged as a result of work related to Committee Two subjects. At the conclusion of the meetings, Chairman Aguilar (Venezuela), drew three conclusions: (1) while there were widely. divergent views expressed, a practical consensus exists along the basic lines of the Committee Two package; (2) there remain only a very few questions of interest to a substantial number of delegations; (3) it was not ‘the time, under the circumstances, to establish any working groups. The committee was held together, once again, by the strong and able leadership of Amb. Aguilar. Interventions in plenary on the record following his report were lengthy, followed by the same lines as in committee debates, and constituted a clear indication that many coastal states delegations were ready and willing :to do battle on a number of military-related issues should the text be reopened. Peru stated that there was no consensus On certain contentious provisions such as Article 21. The U.S. stated that our views regarding navigation rights, including those of warships, and other uses of the sea related to international peace and security were well known, and that we reserved our position regarding any efforts to alter these rights under customary or conventional law. Warship Passage in Territorial Sea - Article 21. Discussion on this article centered on a proposal by the Philippines and others (C.2/Inf. Mtg./58) which had the effect of permitting coastal states to require prior authorization or notification before warships may enter the territorial sea. This article absorbed the attention of the committee for most of the four meetings. Of the approximately seventy speakers on the subject, roughly one-half favored the amendment and one-half opposed. Among those favoring the amendment, a small number thought that notification only might be acceptable. Those opposed were split -between those who spoke to the substance of the article (it upset the balance of the text) 60 and those who thought that the Committee Two text had, aS a package, been highly negotiated and should not be reopened. Western states were joined by the Eastern bloc in opposition to the change. Several delegations pressed for the formation of a small consultation group on this subject. Warship Activities in 200-mile Economic Zone —- Article 58 Brazil argued that Article 58 should be revised to make clear that it does not authorize military exercises in the ex- clusive economic zone without the authorization of the coastal state. This proposal received support and opposition along the same lines as the proposed change to Article 21, but it received less attention. Military Installations and Structures —- Article 60(1) Brazil and Uruguay suggested that, in accordance with their amendment contained in C.2/Inf. Mtg/ll, the limitations on coastal state jurisdiction over artificial islands, instal- lations, and structures contained in subparagraphs (a), (b), and (c) should be deleted. Duty to Remove Installations - Article 60(3) The U.K. raised the problem created by the requirement in the present text that all installations in the EEZ (and on the shelf) be "entirely" removed. It was suggested that a new form: of words be used to allow partial removal, based on international standards and provided that navigation and fishing interests are adequately protected. In principle, this proposal received widespread support, particularly among broad margin states, and no opposition. Wording remains a problem. Straddling Fish Stocks - Article 63 Argentina pressed its suggestions for a change in the text to provide for cooperation among affected states for the conservation of so-called "straddling stocks", that is, stocks found both within and without the exclusive economic zone. This change would incorporate the thrust of the language in Article 117, dealing with the same subject on the high seas. The suggestion was supported by others, including Canada, who pointed out that consultations were underway on the subject, but was opposed by a number of distant water fishing states. Common Heritage Fund é Nepal’ drew the attention of the committee to its sugges- tion contained in C.2/Inf.Mtg/45, Rev. 1, for the establish- ment of a "common heritage fund", contributions to which 61 would be made by payments occurring from the exploitation of the non-living resources of the exclusive economic zone. Pay- ments would be made {from the fund to developing countries and be used for other beneficial purposes. The proposal was sup- ported by ten other countries, most of which were co-sponsors. There is broad opposition among coastal states. Delimitation of Maritime Boundaries between Opposite or Adjacent States The two delimitation groups, those favoring a solution based upon equitable principles (Group of 29) and those pre- ferring emphasis: on the median or equidistance line (Group of 22), met separately and jointly on several occasions. The focus of the joint discussions was a lack of agreement on a _text as a basis for negotiation. The G-22 wished to utilize the text contained: in the Draft Convention, while the G-29 rejected that approach. Accordingly, the discussions pro- ceeded along the lines of previous discussions with both sides concentrating on the various elements contained in any possible solution. When the G-22 insisted on inclusion of a general reference to principles of international law, the other side agreed an condition that the term be accorded sufficient clarity. Subsequent discussions indicated that the two sides were in fact little closer to a final solution than before. The basic disagreement as to the relative weight to be placed upon "equitable principles" and the "median or equidistance line" remains. The group concluded its work, deferring future negotiations to the summer session. . COMMITTEE THREE Committee Three met only once during the session. Chair- Man Yankov convened a brief informal meeting to elicit the views of the committee on whether any issues within the Mandate of the commitee remained to be discussed or nego- tiated. He stressed that, in his view, negotiations had been completed at the Ninth Session and that any attempt to reopen substantive negotiations would seriously endanger the delicate compromises already achieved. He stated that the only reason that he would see for further meetings of the Committee would be in the event that additional matters were referred to it by the plenary. There was general agreement expressed by several delegations with the views of the Chair- man. The United States representative intervened to state that the United States reserved its position on the status of the work of the committee pending the outcome of our review of the draft convention. Further, he made clear that there 80-949 O—81——5 62 remained several technical changes’ that needed to be dis- cussed at some point. (This was in reference to the tech- nical straits amendments to Articles 221 and 233, and to adding "generally accepted" in Article 208(3).) INFORMAL .PLENARY Participation The question of participation in the Convention by various entities was a substantive issue on which President Koh tried to make some progress toward resolution during this session. It is generally agreed that all States may become party to the Convention. The "all States" clause will presumably be applied by the UN in traditional fashion. The question discussed was what entities other than States may become party to the Convention. : The legal aspect of this problem involves two situations. The first concerns regional economic integration organizations such as the European Economic Community to which members have transferred the internal and treaty-making competences of States with respect to some matters regulated by the Conven- tion. The second concerns asseciated States, such as the Cook Islands, Niue, and those that may emerge in Trust Territory of the Pacific Islands, that have the independent internal and treaty-making competences of States with respect to matters regulated by the Convention in accordance with the Feteyoue instruments of association. The political aspects of the question relate to proposals to permit areas that have not yet attained full independence generally, and so-called national liberation movements, to become party to the Convention. At the first of two informal plenary meetings, President Koh reviewed the history of this item and presented his Summary Of the issues as participation by five entities: 1) All States, which he called non-controversial; 2) Fully self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations, and which have full compe-__ tence in matters falling within the sphere of the Convention; 63 3) Territories which have not yet attained full indepen- dence, a more heterogeneous category of entities, which com- prise: a) trust territories; b) territories over which there are disputes; and c) non-trust territories; 4) Intergovernmental organizations and economic integra- tion groups; and 5) National liberation movements recognized by the United Nations and by regional intergovernmental organizations concerned. (Note by the President: informal document FC/23) During the informal plenary meetings, many delegations urged that the questions of participation should be examined from legal and juridical rather than from political perspec- tives. Some delegations viewed the five entities as part of a package which.would require a comprehensive solution. There was no opposition to participation by all States. In dealing with entities other than States, several dele- gations felt that objective criteria should be applied, ina uniform way, to determine whether those entities had the legal capacity to become a party to the Convention. As to the category of "fully self-governing associated States", two important criteria emerged in the discussion: (1) whether the entities contemplated in this category have competence over the matters falling within the scope of the Convention, and (2) whether they possess the legal personality to enter into treaties in respect of those matters. , In the case of the Cook Islands and Niue, as well as the associated States that may emerge in the Trust Territory of the Pacific Islands, it was argued that both criteria were Satisfied. As to the category of "territories which have not yet attained full independence", the discussion again focused on legal and administrative competence over subject matters of the Convention and sufficient legal personality to make treaties on their own with respect to such matters. With respect to disputed territories, some delegations believed such territories could not enjoy the benefits of the Conven- tion while other delegations saw no reason why peoples of such territories should not enjoy those benefits. Finally with respect to other territories that are not independent, 64 there was again no general consensus because some territories may not have competence and may lack capacity to enter into treaties on matters within the scope of the Convention. A representative of the Trust Territory of the Pacific gave a full account of the status of the three States -- the Federated States of Micronesia, Palau, and the Marshall Islands -- so far as participation in and signature of the Convention was concerned (Statement to the Conference: informal document FC/24). He stressed their competence and capacity, citing their 200-mile fishery zones and fisheries agreements with other States and describing their Compacts of Free Association with the United States. As to the category “international organizations and economic integration groups", the European Economic Community (EEC) submitted a proposal (informal document FC/22) which was explained at some length. Several questions were raised regarding: whether all the member States of the organization should become parties to the Convention; the areas of compe- tence transferred by members to the organization with respect to matters falling within the sphere of the Convention; the information to be obtained or notification to be made to third States with regard to competence of the organization; rights and benefits that a member of the organization May or May not obtain when not itself a party to the Convention; dual representation; who would be responsible for infringe- ment of .the rights of third States or for failure to comply with obligations; and the application of dispute settlement provisions to the organization. : As to the category "national liberation movements recog- nized by the United Nations and by the regional intergovern- mental organizations. concerned", opinion was strongly di- vided. Arguments made in favor of participation included the fact that they have been granted full membership by the Non-Aligned Conference, the Islamic Conference and the League of Arab States, and observer status by the UN General Assembly and UNCLOS III. Arguments against participation were the facts that they lack legal and administrative competence in the subject matter of the Convention and lack sufficient legal personality to enter into treaties in respect of such matters. ' President. Koh convened a small group of about 20 countries (including the United States) for informal consultations to examine further the participation issues from a legal, not political perspective. The basic documents examined were the EEC proposal (FC/22) and another put forward by the Group of 77 (unnumbered, dated 25 March 1981) which incorporated prior proposals dealing with the Cook and Niue Islands, TTPI enti- ties, modifications of the EEC proposal and its own proposals on other territories not yet independent and on national liber- ation movements. 65 During seven informal consultation meetinas, each of the various entities was discussed in detail. There emerged from these consultations two criteria (same as those in the informal plenaries -- legal competence in LOS subject matters and treaty-making capacity with regard to such matters) which should be applied as a test to determine whether a non-State entity cold participate in the Convention. Some expressed the view that these criteria should not be strictly applied and that other factors should be taken into account. In applying these criteria to self-governing associated States (as described in the Philippines/Solomon Islands pro- posal: informal document FC/19), it was found that they would satisfy the two criteria. In this regard, a strong case was made that the Cook Islands, Niue and the associated States that may emerge in the TTPI would satisfy both criteria. Because of variations with respect to territories which have not attained full independence in accordance with UNGA resolution 1514 (XV), discussions revealed that: 1) Participation cannot be allowed to all dependent territories as a class; 2) Disputed territories and those to which the transi- tional provision applies should be deferred for the moment; and : 3) Some territories, which have achieved significant autonomy, can satisfy both criteria. : With respect to national liberation movements, some dele- gations suggested that these groups had the potential to ful- fill the criteria even though they could not presently do so, arguing that other criteria should be applied to them. Other delegations questioned the application of these criteria to these groups. The Arab Group States and others tried to ascribe legal competence and legal personality to the PLO by describing a growing jurisprudence with regard to them (i.e., certain degree of recognition by States, the United Nations and regional organizations; establishment of diplomatic mis- sions in several States in accordance with the Vienna Conven- vention on Diplomatic Relations; and signature, though on a separate page, of the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humani- tarian Law Applicable in Armed Conflict). However, there was no consensus that the two criteria applied to the PLO or other national liberation movements. Because of the many questions regarding participation by Organizations (outlined above at the informal plenary), the 66 EEC proposal and that part of the G-77 proposal pertaining to international organizations were debated most thoroughly but without reaching consensus. To make participation by such orgnizations more restrictive, the USSR offered three propos-— als: making participation by all members of the organization a Mandatory prerequisite for participation by the organiza- tion; requiring accession by an international organization only through an instrument filed with the depositary listing all powers delegated to it by member States in areas regulated by the Convention and immediate notice of subsequent changes thereto; and making the organization and its member States jointly and severally responsible with respect to obligations arising under the Convention. The Soviets apparently did not realize that their proposal might give each member of an organization the power to prevent ratification by all members. Although there waS no consensus on most of the questions, there was agreement that there must be evidence of a transfer of competence to the organization, the fundamental criterion qualifying the organization to participate at all. The other criterion of treaty-making capacity would depend upon the nature and extent of the powers transferred to the organiza- tion by member States with respect to third States. - The G-77 spokesman reiterated that all elements of the © guestion of participation form a package requiring a compre- hensive solution. Finally, it was agreed to defer consideration of the question of the so-called transitional provision that appéars after the text of the Convention pending further consultations with the most interested delegations. : After some informal consultations, it quickly became obvious that no negotiations could be conducted at this session on the first two topics. There was some interest in starting the formidable task of coordinating the texts in Part XV, first through the language groups and then through the Drafting Committee. It did not prove possible, however, to allocate the necessary time for that purpose at this session. In consequence, priority will be given to the subject at the pre- sessional meeting of the Drafting Committee. Some meetings of the informal plenary on this subject will also be required. Drafting Committee At its seven-week intersessional meeting prior to the commencement of the tenth session, the Drafting Committee recommended over 1,000 changes to the Second and Third- Committee Texts. A report on that intersessional meeting is attached. During the session, these recommendations were considered in informal plenary. The meetings were informal 67 so as to avoid the problem of creating interpretive records during consideration of Drafting Committee recommendations. Virtually all of the Drafting Committee recommendations were approved. A few were referred back to the Drafting Committee, some of which have been reconsidered and submitted to plenary and approved. During the session, the Drafting Committee continued its work on Part XI texts. It submitted a few recommendations on the initial articles to informal plenary, which were approved. That work continued in more intense fashion during the last week of the session, which was devoted exclusively to the Drafting Committee and its organs. As in the past, proposals were presented initially in one of the six language groups to all Conference partici- pants. If recommended by that language group, the proposal was reviewed by the others. The six coordinators of the language group would then meet to harmonize the positions of the language groups and make recommendations to the Committee. The Committee then- considered texts recommended by the co- ordinators. As of the end of the session, remaining Drafting Committee © work includes: - . 1) A number of items still pending in the Committee and - in the language BFOUDS with respect to the Second and Third Committee texts; ; 2) The signifiéant portions of Part XI and Annexes III and IV which have, yet to be addressed, including a number of the more difficult drafting problems that remain to be resolved regareing. €exts already reViewed; IE) 5 eepreeye, Articlés1; and/Parts &V,/X%¥ieand, XVII, to ; which, havg yet to b nsidered. DISPUTE SETTLEMENT ‘ahd issue Pete iecunecd among delegates during the tenth sés tone goite', changes in seabed mining provisions concerning ‘dispute . settlement sought by some Western European countriés; "two. téchnycal changes in Part XV (relating to the exhaustidm of ‘Ipeal« remedies in case of a seizure of a vessel and the cla4rifidati#§n‘ of provisions relating to disputes concerning maritime’ boundaries); and drafting changes in the more than 100° Beit cs -in Part XI, Section 6, Part XV, and related annexes. ¢ 68 SITES OF THE AUTHORITY AND OF THE TRIBUNAL The candidates for the site of the proposed International Seabed Authority are Fiji, Jamaica, and Malta. The candidates for the site of the proposed Tribunal on the Law of the Sea are the Federal Republic of Germany, Portugal, and Yugoslavia. The question of the site of the Seabed Authority was raised during one of the First Committee meetings. Questions were raised as to whether that matter would be resolved by the First Committee or by Plenary. The President informed the Conference that the candi- dates have agreed that the matter would be taken up during the third week of the resumed tenth session in Geneva.- The options facing the Conference at that time will be to select one of the sites for each of the two institutions, defer the Matter for future consideration by the Conference or refer the matter to the proposed Preparatory Commission. ATTACHMENTS: 1. Report of Chairman of the First Committee dated April 16, 1981 2. Report of Chairman of the Second Committee dated April 15, 1981 3. Report of the Chairman of the Third Committee dated April 17, 1981 4. Drafting Committee Report: Janury 12- March 2, 1981 69 — UNITED NATIONS Distr. LIMITED THIRD CONFERENCE . | room co Mt a) wri 981 ON THE LAW OF THE SEA 16 April 1 ORIGINAL: ENGLISH _ A A Sn Tenth session New York, 9 March to 24 April 1981 REPORT TO THN PLENARY ON THE NEGOTIATIONS IN THE FIRST COMMITTEE BY FAUL BAMELA ENGO (UNITED REPUBLIC OF CAMERCON), CHAIRMAN OF THE FIRST COMMITTEE ay. At the end of the resumed ninth session I reported that there had been what I consider to be a break-through in our negotiations on the outstanding hard-core issues before the First Committee. It was clear from the reactions of all delegations, in the First Committee and in the Tlenary, that the proposals which were Jater incorporated in the Draft Convention enjvuyed a consensus. The report I submitted therefore outlined only a few issues which required attention before the First Committee could terminate its mandate. Bs Tt is conmon knowledge that the United States delegation announced.at the commencement of this session their decision to review the Draft Convention and insisted that the Conference must await the end of such a review before any fruitful negotiations could take place with a view to formalizing the Draft. The Group cf 77 expressed the opinion that no useful negotiations therefore could be undertaken to resolve the issue of preliminary investment protection. Conseauently, the work of the First Comnittee at this session proceeded with an unhappy cloud hovering over. My consultations left me in no doubt however that it was the will of the delegates to proceed with the negotiating effort on all outstanding issues bearing in mind the effect of the reservations expressed. Shs During this session the Fir .t Committee held four mectings, all formal. The first two were devoted to general debates om the Preparatory Commission. The other two meetings provided opportunity for general comments on two reports of the Secretary-General of the United Nations: one on potential financial implications ‘for Gtaies parties to the future,Convention cn the Law of the Sea (document A/CONF.G2/L.65), and the other on the effects of the production limitation formulae under certain specified assumptions (document A/CONF.62/L.66 anda Corr.1). 4. In-addition, the issue of the Scat of the Authority (art. 156 (3)) was taken up for the first time. The opportunity was also given for the examination of 211 or any matter that delegations felt had not been or had never been dealt with formally in the First Committee. 81-10479 70 De As may be recalled, the question of the Preparatory Cormission had been considered by the Plenary of the Conference at its informal meetings, as part of the late President Shirley Amerasinghe's consultations on the final clauses. It became clear that the issues involved were so closely related to the issues negotiated on Part XI that the forum of the Tirst Committee was the more appropriate for the negotiating process. 6. Consequently, following consultations with the President at this session, the matter was taken up formally for the first time. In order not to lose the valuable contents of the late President's report on the subject, and also to facilitate our examination, it was decided tuat those contents be made the hasis for discourse. Furthermore, it was agreed that in order to avoid duplication, the negotiating effort should be co-chaired by the President and the Chairman of the First Committee, using the established system of a Working Group of 21. iffe The Working Group of 21 held four meetings and discussed, inter alia, critical issues relating to the composition, mandate, decisiun-making system, and the financing of the Preparatory Commission. Consistent with the understanding, it took as a basis for negotiation, the report of the President on the work of the Informal Plenary of the Conference on the question of the Preparatory Commission (document A/CONF.62/L.55 and Corr.1) in particular the annexed draft resolution proposed for adoption by the Conference providing interim arrangements for the International Sea-Bed Authority and the Law of the Sea Tribunal (see annex II of the same document). 8. Following an extensive and, I must add, illuminating discussion on the issues in the Working Group of 21, the President of the Conference and I commenced 5 preliminary consultations with the members cf the Working Group of 21 with 4 view to updating the ideas contained in the said draft resolution. JI am of the opinion that the efforts made by the First Committee at its various negotiating fora on the Preparatory Commission, though preliminary, has achieved some constructive results in identifying major issues and the inverrelationships among them. I am encouraged consequently to make the following observations: 9. First, there appeared to be general agreement that the Preparatory Commission should be established by a resolution of the Conference included in the Final Act. 10. Secondly, the objective in establishing the Freparatery Commission was broadly recognized, that is to say the purpose of making provisional arrengements for the first session of the Assembly of the International Sea-Bed Authority, and of its Council. The objective included such arrangements regarding the establishment of its other organs, namely the Secretariat arl the Fnterprise, as well as the convening of the International Law of the Sea Tribunal. 11. The title of ‘Preparatory Commission for the International Sea~Bed Authority and the International 121; of the Sea Tribunal” may prove to be the most appropriate. 12. On the issue of the membership of the Commission, the text of the President's draft appeared to present difficulties for some of the industrialized countries. They would prefer that it be opened to all signatories to the Final Act. The other 71 puarbied punts insisted that, only Gistes which demonstrate an intention to he bound by the Convention should be menbers. “hey submitted consequently thet sierature to the Convention would be a minimum criterion, as this would also induce early commitinent to the treaty and consequently prevent participation by those States who may have reached the decision not to be party to it anyway. 13. ‘Ihe Group of 77 appears to be ready to accept a compromise granting, observer status to States which sign only the Pinal Act, granting them power to participate fully in the deliberations of the Commission but denying them a right to participate in the decision-making procedures. 14. This first reading also focused on the broad auestion of the decision-making process and the adoption of the Commission's rules of procedure. Three relevant arcas were: (i) the rules of procedure to te applied in the Preparatory Commission pending the adoption of its own rules of procedure, (ii) the majority required for the adoption of its rules of procedure; end (iii) provisions for voting cn substantive issues. 15. ‘he exchange of views, especially on the latter two, was somehow inconclusive. It would appear that the Western industrialized countries and the Eastern (socialist) countries would insist on the consensus rule. The Group of 77 would favour a tyvo-stage enproach by which the failure of a quest for consensus would be followed by a voting procedure. It is clear that more consultations in the negotiating process will be inevitable. 4 16. The functior, or the mandate, of the Commission was examined. While it appeared that general agreement existed for the proposition that the Preparatory Commission would have the broad mandate of preparing for the establishment of the International Sea-Bed Authority and the International Law of the Sea Tribunal, th: industrialized countries considered that the discussion of the issue of the stablishnent of the Enterprise was premature, as it had to be taken up in discussion on the preliminary investment protection proposals. The Group of 77 and other members of the “Working Group of 21 consider this to be an imperative jtem, as the lnterprise would be a main organ to effect the agreed working of the parallel system. 17. The exchange of views appeared to have been more productive on the substantive question of the function of the Commission, especially as it related to its role in the preparation of rules, regulations and procedures. It is my impression that further reflection will be desirable to determine the scope of this nection. 18. ‘There appears to be general agreement for the proposition that the Secretary-— General of the United Nations should be empowered to cenvene the Commission, certuin criteria being satisfied with regard to the timing. That which was recommended in document. A/CONF.62/L.55, reauiring 50 signatures to the Convention or the sane numter of States depositing instruments of accession, received 72 widespread support. It was suggested, however, that the wording proposed in paragraph 10 should be harmonized with those specified in article 307. 19. ‘here is genera]. agreement that the life of the Preparatory Commission should not be unduly long, having regard to the nature of its mandate and also of th= need for the Authority to be established expeditiously to perform functions assigned by the Convention. The view was expressed by some, however, that if that life must be extended beyond the convening of the Assembly, the latter, that is the Assembly, alone must decide to grant it. 20. The issue of the financing of the Preparatory Commission presented some difficulties. It was clear that 411 sides would support that the United Nations should provide the funds for the initial costs. Yet the terms round a divergency of views. The concept of loan proposed by the late President's text was rejected by those who saw fundamental legal as well as practical difficulties involved. . The Group of 77 and the Eastern (Socialist) countries argued further that until the Authority was established the United Nations regular budget should finance the Commission in the same way as with the present Conference. Others pointed to the fact that observers or Member States of the United Nations who are not signatories of the Conventior: would he compelled to contribute to the financing. It is my feeling that the second reading on this issue might, hopefully, be more fruitful. 21. Whe Special Representative of the United Nations Secretary-General introduced two reports ‘that were rclevant to the mandate of the First Committee. ‘They are contained in docvments A/CONF.62/L.65 and A/CONT.62/L.66 and deal respectively with “potential financial implications for “tates Parties to the future Convention on the Law of the Sea" and “the effects of the »roduction limitation formula under certain specified assumptions". 22. With regard to document A/CONF.62/L.66, the Committee decided to postpone detailed discussion until the resumed session. During the discussion of this report, some delegations proposed that a group of experts be established, which could utilize the report of the Secretary-General as the basis for an evaluation of the production limitation formula. Since there was no consensus with respect to establishment of such a eroup, I suggested that I be authorized to hold informal consultations with a view to reaching consensus on how to proceed. 23. The report on the financial implication of the future Convention contained in document A/CONF.€2/L.65 offered a preliminary estimate of the cost involved in the functioning of the following organs of the Authority. (a) The Authority - including the Assembly, Council, its Feonomic Planning Commission and Legal and ‘'cchnical Commission and the Secretariat. (b) The Enterprise - including Governing Board and the Secretariat. (ce) The International Tribunal for the Law of the Sea - including the Sea-— Bed Disputes Chamber, Special Chambers, the Ad Hoc Chamber and the Office of the Registrar. 73 (d) The Commission on the Limits of the Continental Shelf. (e) The Preparatory Commission, and any subsidiary bodies it may establish. 2. In introducing the report the Special Representative made the following observations: 1. Costs of the Authority and the Enterprise could be reduced considerably if both organizations are located at the same site and share the staff and institutional facilities on the reimbursement basis; 2. With regard to the Freparatory Commission: Cost estimate was based upon the assumption that the Preparatory Commission would be located at a Site of United Nations Headquarters. If the Commission is located at a site other than the United Nations Headquarters, extra cost must be taken into account, depending upon the extent of offers made by the host country ; 3. The manning table of the Secretariat of the Authority is lower than such specialized agencies as the World Intellectual Property Organization and the United Nations Environment Programme. 25. The majority of States, in commenting on the report, stressed the necessity - for cost--efficiency.of the new organization, and expressed the view that the report is a sound basis for a careful study by the Conference. Other Matters . 26. The First Committee prcvided opportunity for the discussion of all outstanding matters, including those never before dealt with under its mandate. (i) The Site of the Authority As I indicated above this matter was dealt with for the first time since the announcement at the Caracas Session of the candidacy of Jamaica, its formal endorsement by the Group of 77 2nd subsequent introduction of the subject in the Informal Single Negotiating Text. Article 156 (3) in the present Draft Convention shows that in addition to Jamaica, there are two other candidacies: in order of presentation, Malta and Fiji. During the discussion the Jamaican delegation presented their case, concluding that construction work for receiving even the Preparatory Commission are well under way. The summary records of that meeting reflects the arguments and information presented by that delegation. The delegation of Malta stated that they could not participate in the debate on the grounds thal the First Committee was not the proper forum. There had been ean agreement with the J’resident and other candidates that a decision on the issue would be taken in Plenary at the tenth session. This view wus breadly speaking suppurted by the Fiji delegation. 74 During the discussion, the Chairmun of the Lutin American Group, as well os olher delcgutions from Latin America who spoke on this issue, many African countries and Yugoslavia spoke out in favour of Jamaica. A number of speakers did not find it expedient to declare a choice at this stage. It is important to note from the debate that all three candidates declared that preparations were afoot to receive the Authority, although only Jamaica undertook to state details of such preparations. (ii) Production policies Although our main business at this session was to deal with the issue of the Preparatory Commission, I felt that delegations should be given an opportunity to raise any other issues which are of concern to them. At the 50th meeting of the First Committee held on 19 March 1981, the delegation of Zambia, supported by the delegations of Zimbabwe end Zaire, made an appeal that the issue of production policies be examined. Intensive consultations at various levels, within and across interest groups, have since been launched and may be expected to continue at the resumed. session. The specific issues in question were the impact of the production limitation formula set out in article 151 of the Draft Convention on the existing and future land-based nickel, copper, cobalt and manganese industries and the measures for the protection of developing countries from adverse effects on their cconcmies or on their export earnings likely to result from sea-bed mining. “ (iii) Unfair Economic Practices Among other matters, the delegation of Australia made a suggestion about provisions dealing with unfair economic practices which may cause injury to the trading interests of the economy of another State Party. An exchanse of views took place during an informal meeting of the interested delegations and consultations on this issue are cortinuing. (iv) Composition of the Council During the session, I encourage continuing informal contacts between interested parties concerning the problem raised by some less developed western States concerning an increase in minimum representation for geographical grcups in the Council. While these continue, I have nothing to report at this stage. : 27. Winally I should like to conclude with the samc concern I expressed ut the commencement of this session. The Yirst Committee has, for nearly a decade, vrappled with perhaps the most complex problems that ever faced any Conference spousorcd by the United Mations. It has hud to achieve accommodation of plobal conflicts of interests, inspired by an incredible sense of dedication to the Jofticst idcals of u weneration desperate for international peace and security. 15 C8, Go Tar nol a adnmde nation, Tare or yaetl, detinitely nol the rieh, has been left out of the negotiating effort. The negotiating, texts produced through the ycurs have shown a clear attempt to meet the needs and interests of all States, and more realisticully those of the industrialized States. 29. This Conference cannot at this late stage, when at least we have provoked passions of hope in the international community, afford to indulge in any exercise in futility or any backward or destructive step. We must at all cost preserve that which we have succeeded in accepting by consensus. The packages worked out may have been delicately put together; but it is clear that they are made strong by the consensus they enjoyed. 30. At the resumed session we must all bear this in mind. We must maintain our spirit of accommodation on outstanding issues and any pleas that may be made of additions. But what we must not do is to destroy directly or indirectly the results of our fruitful labours so far. It is in the fact of universal accommodation and compromise that our nations can hope to draw strength for individual survival. 76 UNITED MATIGNS er tt THIRD COMFERENCE a/Conr.62/L.69 E 15 April 1981 ON THe LAW OF THE SEA ENGLISH ORIGINAL: SPANISH Tenth session New York, 9 Nareh--24 April 1981 REPORL '’O THE PLEWARY BY AMBASSADOR ANDRES AGUILAR (VENEZUELA) , CHAIRMAN OF THE SECOND COMMITTEE ale During the first part of the tenth session, the Second Committee held four ~ informal meetings. ‘his served to meet the desire expressed by a number of delegations for an opportunity to refer to certain questions within the mandate of the Second Committee, that is to say, relating to parts 1I to X inclusive of the draft Convention on the Law of the Sea (informal text) (A/CONF.62/WP.10/Rev.3). Be. hese meetints were held without any pre-established agenda, so that the delegations participating in them could express their views and present or reitcrale informal suggestions for amendnients with complete freedom on all issues and questions within the competence of the Committee, the sole exception being the problem of the delimitation of maritime space between States with opposite or adjecent coasts, because at this stage of the work of the Conference that matter is beings dealt with by the two groups of countries directly concerned, which have established a procedure for consultations on the subject. I deemed it necessary, however, to point out at the first informal meeting that the Committee's work in this final phase of the Conference should be directed towards supplementing or improving the draft Convention (informal text), and not towards reopening discussion on the basic elements of the agreements reached after many years of effort. 2 Bie Nearly al] the informal suggestions corsidered at these meetings had already been submitted to the Cemmittee at previous sessions. It should be noted, however, 1hiat on this occasion a revised version of one such suggestion was presented. h, The number of statements made at these meetings totalled 119, and many of the articles in parts II to X of the draft Convention (informal text) were referred to or touched on. It may be said, however, that most of those statements focused on very few questions. Do One of these questions, a very controversial one, was the subject of lencthy debate, during which detailed explanations of the various positions were given and alternative means of achieving, reconciliation were sugestcd. In connexion Wilh this question, a number of delegations requested the establishment of a HI-10P0) 17 workings @roup or the holding of consultations umons, the most interested delerations with uw view to harmonizing the different positions. In response to that request, 1 carricd out. consultations on the subject und found that there was, at least for the present, no agreement on the cstablishment of a working, negotiating or consulting, group for that purpose. 6. The informal suggestion presented in the Committee for the first time by one delegation was also given special attention in these discussions. The delegation waking the suggestion announced at the end of the meetings that it would hold consultutions with the other delegations which had shown an interest in it with a view to submitting to the Committee in due course, for its consideration, a precise formulation taking into account the comments that had been made on the subject. itis During; these meetings, the delegations interested in some of the informal suggestions made at previous sessions stated that they were continuing the consultations wimed at finding gencrally acceptable formulae. 8. As I said by way of summing up at the end of the last of these meetings, the following conclusions may be drawn from these discussions: (a) There is o virtual consensus on the fact that it is not desirable or practical to recpen discussion on the basic Second Committee issues, which, while they do not in all cases represent a consensus, are the formulae that come closest to commanding general agreement and that have been arrived at through-long and arduous negotiations. (3) ie as possible to introduce, at su. time as the Conference may decide, minor chunges designed tu supplement, clari:y «£ improve the draft Convention, always provided, of course, that they command the necessary support and will help to facilitate acceptance of the text by the largest possible number of delegations. (c) Although some of the draft articles, as now worded, present difficulties of various kinds for some delegations, the draft as a whole is acceptable to the great majority of delegations. There are actually, in the view of a significant number of delegations, very few questions that require further discussion and negotiation. 9° Lastly, it seems to me appropriate to note in this report that as Chairman of the Second Committee | participated, alone with the resident of the Conference anda the Chainman of the Drafting Committee, in three of the informal meetings of the Plenary to consider snd adopt the recommenuations of the Drafting Committee concerning parts II to X of the draft Convention on the Law of the Sea (informal text) (A/COMF.62/\W?.10/Rev. 3). 80-949 O—81——6 78 UNITED NATIONS Distr. LIMITED THIRD CONFERENCE | afeom. 6a ON THE LAW OF THE SEA ie ORIGINAL: ENGLISH i Tenth session New York, 9 March to 24 April 1981 REPORT OF THE CHAIRMAN OF THE THIRD COMMITTEE Ie I have the honour to report briefly to the Conference on the work of the Third Committee at the current session. It may be recalled at the outset that in my last report to the plenary (A/CONF.62/L.61 of 25 August 1980) that the substantive negotiations on part XII (Protection and preservation of the marine environment ), part XIII (Marine scientific research), and part XIV (Development and transfer of marine technology) were completed. The results of these negotiations are reflected in the Informal Text of the draft Convention on the Law of the Sea (A/CONF.G2/\W’.10/Rev.3). It was also stated that the Third Committee had attained a level of agreement which could offer a substantially imvroved prospect for consensus. This assessment, which has emerged from the Third Committee's deliberations, was subsequently confirmed by the Conference itself at the end of the resumed ninth session. Za At this session, an informal meeting of the Third Committee was held on 25 March 1981 in order to ascertain whether there were still any issues which could be discussed by the Committee. 3. I am now pleased to inform the Conference that the Third Committee reiterated its previous cone_usion, namely, that the substantive negotiations had been completed. It was agreed that tne draft Convention on the Law of the Sea with respect to parts XII, XIII and XIV constitute a compromise based on a sound balance which should not be upset by reopening issues which had already been extensively negotiated. h, It was also agreed that if and when called upon by the Conference the Third Committee should be available to consider any issue within its terms of reference. Do I wish to take this opportunity and place on record my appreciation of the excellent work done by tne Drafting Committee, its language groups and ‘he co-ordinators. On this occasion, I wish to extend my congratulations to the Chairman of the Drafting Committee, lir. Beesley. The recommendations advanced by the Drafting Committee did not affect the substance of the text and altogether they constitute a distinct improvement from a drafting point of view. 81-10465 79 6. Since the recommendations of the Drafting Committee have been considered in informal meetings of the plenary, the adopted suggestions should be issued in a document in order to keep a clear record. (fo I would like to express my sincere gratitude to all the members of the Third Committee for their understanding and co-operation which has been the main feature of the atmosphere in the Committee throughout the long years of arduous negotiations. 8. Finally, I wish to pay special tribute to the Secretariat for their exemplary diligence, dedication and most valuable service rendered to the Committee and to its Chairman. -= 80 XM March 2, 1981 Report of the U.S. Delegation on’the Meeting of the Drafting Conmittee or the Third UN Conzerence Or tre Law of tne Sea Janam lZ= een Loe Summary. The Drafting Committee approved over a thousand amend- ments to the text of the Draft Convention on the Law of the Sea (Informal Text) (UN Doc. A/CONF.62/WP.10/Rev.3). These resulted from an article-by-article review of Second Committee texts (Parts II-X and Annexes I and II) and Third Committee texts (Parts XII-XIV). The amendments are technical and stylistic. They are designed to impreve the style and clarity of the texts in each language and to enhance tne concordance of texts in the six official languages. Because of time pressures, the Committee was able only to begin the precess of an article-by-article review of First Committee texts (Parts XI and related annexes), and could not deal with the preamble, Part I (definitions) and the Informal Plenary texts (Parts “MV to XVII). Attempts to prepare, and forward to the competent organ of the Conference, a list of technical questions that might have substantive implications did not succeed. Despite a very intensive schedule frequently sunning from 9:00 a.m. to 10:00 p.m., the Drafting Committee still faces a large amount of work on deferred items with respect to texts on which recommendations have been made, and with respect to an initial review of texts on which no recommenda- tions nave been made. Procedure. : ¢ 8 The Drafting Committee and all its organs functioned: by consensus. The Committee, chaired by Aubassador Beesley of Canada, has limited membership that does not include dele- gations that wish to, and might be expected to, participate in its work (e.g. China, France, and the U.K.). Moreover, it was recognized at an early stage that any attempt to do initial drafting work in several languages at once would lead to confusion. Accordincly,, the Drafting Committee established six language groups, one for each of ie official languages, all of which are open to all conference partici- pants. The chairmen or coordinators of the language groups are as follows: 81 Arabic - Professor Yasseen (UAE) Chinese - Dr. Ni (China) English ~ Professor Oxman (USA) French - Professor Treves (Italy) Russian - Dr. Yevseev (USSR) Spanish - Dr. Lacleta (Spain); Alternate, . Dr. Yturriaga (Spain); Ambassador Valencia (Ecuador) Drafting proposals were first discussed in a language group. After discussion, each language group submitted its recommendations on the articles in question. These were then collated on an article-by-article basis in all six languages. Each language group then discussed the recommendations of the other language groups. All of this was accomplished without the need for interpretation. The coordinators of the language groups then met together under the Chairman of the Drafting Committee to discuss all of the changes, with interpretation. These meetings were open to all participants, although discussion was usually carried on only by the coordinators. Once the coordinators approved recommendations in the six languaces, they were forwarded to the Drafting Committee for action. At that voint, most were approved without discussion. oe The effect of this procedure is that every proposed drafting change in at least English, French and Spanish is scrutinized many times-before it is finally recommended. A single objection or hesitation at any stage is sufficient to stop inter elia, for: Article 146, line 2 = Delete in order line 3 - Replace that by this line 4 ; ; - Delete appropriate line 5 - Replace reflected by embodied line 6 - Replace specific treaties by relevant treaties - After treaties delete which may be applicable Article 148, line 4 - After in particular add to line 6 - Replace them, in .vercoming by them with a view to overcoming Before Article 149 - Insert new heading Section 3ter*, ARCHAEOLOGICAL OBJECTS AND OBJECTS OF HISTORICAL ORIGIN FOUND IN THE AREA Article 149, title - Revise to read Archaeological. objects and objects of historica! >.rigin Article 149, line 1 = Replace All objects of an archaeological and historical nature by Archaeological objects and objects of historical origin ; * Renumbering of sections would be done when full text is issued. 80-949 O—81——7 94 UiiiED HATIONS , Distr. LIVITED A/CONF.62/L.67 THIRD. CONFERENCE 26 February 1981 ON THE LAW OF THE SEA . ORIGINAL: ENGLISH REPORT OF THE CHAIRMAN OF THI. DRAFTING COMMITTEE Meetings 1.- An informal intersessional meeting of the Drafting Ccmmittee wes held in Nev York from 12 January to 27 February 1961 in accordance with the decision taken by the Conference at its lllst meeting on 29 Avgust 1980 1/ and on the basis of the tine.-table propesed by the Conference. The meeting was extended to 2 March 1981. the Dratting Committee conducted an article by article textual review of the Draft © Convention on the Lew of the Sea (Informal Text) 2/ and directed its attention in particular to: (1) continuing the process of harmonization of words, expressions and terminology recurring in the Draft Convention; - (2) considering drafting and editorial points relating to the Draft Convention; and — Le) — improving concordance of the Arabic, Chinese, English, French, Russian, and Spanish texts of the Draft Convention. Bo There were 240 meetings of the language groups open to all delegations, 33 meetings of the co-ordinators of the language groups under the direction of the Chairman of the Drafting Committee and 14 meetings of the Drafting Committee as a whole. Representatives of 50 delegations participated in the meetings, and the Drafting Committee maintained its previously established informal working methods, but alterec. the procedures for the meeting of the co-ordinators of the language groups under the direction of the Chairman of the Drafting Committee by opening, such meetings to all members of the Dr A. The Administration could not accept a treaty that did not satisfy Title II of the deep seabed mining law. 24. What is your reaction to the contention from elements in the industrial, scientific and academic communities that "no treaty is better that the proposed one"? A. The value of a treaty to any particular interest group can be assessed only by comparing it to the situation without a treaty. For example, the scientific community must decide whether it would fare better on the basis of negotiated agreements on a bilateral or multilateral basis with individual coastal states each with varying claims of competence over MSR or to have the consent regime coupled with the limitations on coastal state control provided by the treaty. So far, Many scientists who have participated in the negotiations have opted for the treaty. Many elements of the industrial community have come down the other way, while the opinions of academics have varied. 154 As part of the review, the Administration is considering all options, including the possibility that overall U.S. interests will be better served without a Law of the Sea Treaty. 25. To make any headway during the next round of talks, you obviously will need the assistance of the more moderate Third World nations. .-. Which ones in particular, are you counting on? »»e On the other side of the coin, which countries have proven to be the most intractable? A. Assuming that avec the review we conclude that we should continue to pursue the current approach aimed at concluding a single comprehensive treaty dealing wae all ‘oceans uses, we shall seek constructive relationships with all important participants in the Conference. Depending on the types of changes we would be seeking in the text, the negotiating task could be quite difficult. To identify, even before we know our own position, which countries would be likely to be helpful and which difficult is really quite impossible. Even if this could be done, giving the "kiss of death" to those countries we believe might be helpful by identifying them would only make them less effective in our behal£. 26. Would it be fair to say that much of the disagreement ~ to date in the treaty talks can be attributed to the difference of interest and ideologies between the advanced maritime states, which have the technology and capital to exploit the seas now, and the developing nations which possess numerical Capital participation? 155 -.. Have developed mineral exporting nations, Canada and the Soviet Union particularly, obstructed agreement on deep seabed mining? A. Your characterization of the respective positions of the Western developed states and the developing states in the seabed mining part of the negotiations is accurate. Canada has sought protection for its domestic nickel Mining industry in the treaty text through the production limit. It is not possible to say to what extent Canadian efforts have obstructed agreement on the seabed mining text as a whole, but certainly their actions have not made the task of our negotiators easier over the past few years. The Soviet Union has not posed severe obstacles to reaching agreement on seabed mining with the developing states. 27. What happens if a successfully negotiated treaty is not ratified by certain important nations, including this one? A. As I stated in my answer to question twenty, if a treaty does not enter into force for the U.S., our miners could mine the deep seabed pursuant to our domestic legislation so long as such mining does not interfere with the exercise of high seas freedoms by the nationals of other countries. If other industrialized countries do not ratify the treaty, the same is true for their nationals. 28. Would it be fair to say that one of the most notable effects of negotiations so far has been the movement towards .- increased coastal state jurisdiction through the very consider- able extension of national boundaries seaward? A. The evolution of state practice and the negotiating texts has shown some considerable interrelationalship. The 156 question of whether or not the current navigation texts are satisfactory is to be answered in the review. 29. It appears that control of deep sea mining is turning out to be the biggest stumbling block of the entire conference. The developing countries seem to believe tht they can participate in the development of undersea resources only through an International Seabed Authority and its Enter- prise or its forced joint ventures with captive private companies. Moreover, they propose that the business arm of the authority, called the "Enterprise," ultimately undertake all exploration and exploitation of the deep sea. Obviously, such a Third World position is completely unacceptable to the U.S. and other industrialized countries. -e- Given the fact of life, what are the Third World nations doing to reach a compromise in this area of negotiations that our own private companies would be willing to live with? A. Until recently, the developing countries were justified . in believing that the United States and other Western nations . would eventually sign a treaty along the lines of the current text. There, therefore, was no incentive for them to make any fundamental concessions. They concentrated instead on making the text as advantageous to them as possible. The possibility ' now exists.that the United States will decide not to sign a seabed mining text as disadvantageous to our economic, political and security interests as the current one, and will instead press for substantial changes in the text that will require the developing states to make what they will perceive as concessions. If this occurs, it will indeed be interesting to see just how far the developing states will be willing to go to accommodate our needs. Of course, there remains the option of abandoning the treaty. 157 30. Should alternatives to a comprehensive Law of the Sea Treaty also be explored by the U.S.? --. In this context, what do you think of exploring the possibility of arranging regional agreements and strengthening functional organizations such as IMCO and the regional fishery commmissions. A. The entire range of alternative approaches to protecting our oceans interests are being examined in the review. I wouldn't want to comment on specific examples at this time, but the ones you mention are among those to be considered. 31. What is the strategic importance of deep ocean mining to the United States? A. We are at present heavily dependent on imports of supplies of three of the four strategic metals (cobalt, nickel, and manganese) found in significant quantities in polymetallic nodules.. The extent to which we are vulnerable to supply interruptions in these three metals varies, with nickel and manganese supplies fairly secure in the near term, while cobalt supplies are relatively more vulnerable. Over time, this situation will undoubtedly change, but we can not project with certainty how it will change. The development of seabed mining in the coming decades will create an additional source of these metals, thus reducing the level of vulnerability that would otherwise exist. Experience teaches that opening the frontier represented by the deep seabed through seabed mining will reveal other 158 (é opportunities for resource exploitation. The importance of these as yet unmade discoveries can not, of course, yet be assessed. 32. It is my understanding that nickel, copper, cobalt and manganese are the principal~metals to be found in the seabeds. : .-. IS it true that if U.S. companies began mining these metals within the next several years, the U.S. could become a net exporter of these materials by the year 2000. A. It is risky to make predictions based on multiple variables and contingencies. However, I think it is safe to say that we could easily become net exporters of cobalt, could near self-sufficiency in copper on a net basis, and reduce import dependence on nickel to a significant degree. Predictions about manganese are even more difficult because the plans of the seabed mining consortia are unclear with respect to production of manganese. 33. What has been the reaction of the American deep sea mining industry to this latest round of negotiations? A. : The industry a general welcomed our decision to review the current text. Current plans do not call for Substantial investments to be made in the next few years, so ~- ~~ the industry is happily willing to wait a little longer for a seabed mining regime that is workable and will encourage investment. They have deep concerns relating to the current text which need to be met, and would not have been pleased to see negotiations come to a elses if the possibility still existed that further negotiation in UNCLOS or in another forum could produce a substantially better result. APPENDIX 13 ADDITIONAL QUESTIONS SUBMITTED IN WRITING FOR THE RECORD BY Hon. Jim LEACH AND ADMINISTRATION RESPONSES 1. On page 3 of Ambassador Malone's opening statement, he alludes to the longstanding and widely held assumption that, "a successful (LOS) treaty must be based on a package deal." Does this mean that the Administration already accepts the principle that a comprehensive treaty -- as opposed to a piecemeal approach to the various elements of the draft treaty -- is the only viable approach if the decision is made to pursue negotiations? A. The passage you quote from my testimony was with reference to the current U.N. LOS Conference. Within the context of that negotiation, there is widespread consensus that any treaty it produces will have to be a comprehensive package, dealing with all uses of the oceans. Other approaches using other forums may also be successful vehicles for protecting and advancing our oceans interests. We do not rule out at this stage of the review process the possibility that an issue by issue approach using several forums may be the best way to deal with these questions. 2. It is my understanding that the military chiefs of each of our principal services have expressed their satisfaction that the draft treaty furthers U.S. security objectives. If it is to be inferred from U.S. military leaders that the existing draft treaty is in the U.S. national security interest, what are the main drawbacks perceived in the present draft which outweigh our national security? A. All aspects of the current treaty text, including those relating directly or indirectly to national security, will be subject to analysis and assessment in the review. But granting, arguendo, that military security interests are (159) 160 protected under the current text, one can point to several aspects of the text, especially in the seabed mining text, that Many commentators have criticized as contrary to our interests. A number of these are identified in my testimony of April 29. The weights to be accorded the various interests engaged in the law of the sea area are to be determined in the review. It is not possible for me at this point to say whether or not one set of interests outweighs another. 3. What would be the loss to our negotiating posture by an Administration commitment which at least accepted the desirability of a treaty (something which Ambassador Malone refused to do in his testimony) ? A. The objective of the review will go down to the bedrock level of analysis of our law of the sea interests and then work up. The question of the forum in which we pursue our interests and the nature of the agreement(s) we should seek have direct impact on the probability that we will achieve an optimal result. These questions have not yet been addressed in the review, and at this point it is necessary to keep all options open. 4. There seems to be considerable question whether U.S. companies which might otherwise mine the seabed could in the absence of a treaty obtain necessary financing, insurance, and other guarantees. Does the Administration believe that U.S. companies would effectively proceed to mine the ocean in the absence of an international treaty? A. We do not know precisely under what set of economic, 161 legal, and political circumstances one or another U.S. firm would choose to invest in seabed mining. This is a business judgment we are not empowered or equipped to make. We do believe, however, that to the extent that the sum of political, legal, and economic risks external to the market and technical risks are reduced, the chances that a firm would decide to make the very large investment associated with sedbed mining are increased. 5. What is the view of the Administration toward the principle -- long established by all parties to the talks -- that the sea's resources are the common heritage of mankind? The often-repeated view of the United States, stated first when the Common Heritage Resolution was adopted by the U.N. General Assembly in 1970, is that the common heritage idea with respect to the seabed is to be given meaning and expression in a generally accepted international agreement. Prior to the entry of such an agreement into force for the . United States, the common heritage idea is an empty vessel, devoid of juridical content. In our view, what many govern- ments now call the "common heritage principle", no matter how defined, does not yet apply to the seabeds. The regime of the high seas prevails. 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