The Law of the Sea at low tide:
Logue, John J
The Law of the Sea at low tide JOHN J. LOGUE THE GIANT UN Law of the Sea Conference is still reeling from the one-two punch which the Reagan administration gave it in early March. On the eve of...
...And there is a striking difference...
...Some four weeks after the Reagan review was announced twelve nations introduced a revised version of a Common Heritage Fund proposal that was first introduced in 1978...
...Pardo had tried to move the world in the opposite direction, i.e., toward bridging the gap between North and South...
...Their "near-sighted realism" insures that they will have very few battalions available to confront the Reagan administration when it finally makes its demands to the Law of the Sea Conference...
...It was only after they had answered that question that they discussed how the plan could be sold to that Republican 80th Congress...
...Indeed, the major function of the Draft Convention will be to legitimize those unilateral grabs of trillions of dollars of . ocean resources, grabs which were made while the Law of the Sea diplomats were conducting a-talkathon, which is now well into its fourteenth year...
...It is even possible, though not likely, that the Reagan administration will surprise everyone and accept the Draft Convention with only minor changes...
...A fair estimate of the common heritage income that will be available from those two sources is $500 million dollars a year, a scandalously small sum, about l/40th as much as would have come from the Pardo proposal...
...For the excitement Arvid Pardo aroused fourteen years ago didn't come from the novelty of his ideas but from their quality and relevance...
...The purpose of the firings was "to ensure that other nations understood our seriousness of purpose with respect to the review...
...Among the twelve countries sponsoring it is Singapore, whose UN Ambassador, Tommy Koh, was elected President of the Conference several weeks before the CHF Proposal was introduced...
...And that is what they are expected to do this month when they-or some of them- convene in Geneva...
...opposition and in spite of Ambassador Malone's announcement that the "Reagan review" will not be finished until the fall...
...However, it is already clear that most of the Conference establishment will fight any attempt to remedy the basic faults in the draft -treaty...
...If Jimmy Carter had been re-elected there was a chance, but only a chance, that Richardson would have been proved a good prophet-and an effective cheerleader...
...During the March-April session the U.S...
...delegation were summarily fired...
...However, that chance all but disappeared last November when Republicans took both the White House and the Senate...
...In May he told a reporter from the Toronto Globe and Mail that if the Draft Convention were signed tomorrow, "it is probably the most inequitable treaty that has ever been signed...
...Not very much, not very much at all...
...How should the precious months of this "Reagan Pause" be used...
...How will they be used...
...A decision to postpone can be a decision to abdicate responsibility...
...The answer is "almost nothing...
...Twenty billion dollars a year would be more than half the thirty billion dollars a year which the Brandt Commission insists those countries need...
...And that "almost nothing" won't really get under way for at least ten years...
...The delega-tiori was told to oppose agreement on a final treaty because the( new administration was undertaking a thorough "review" of the "Draft Convention on the Law of the Sea" which the Conference officers had issued in late August last year...
...delegation marked time...
...The Draft Convention provides for an International Seabed Authority which would manage a dual system of deep ocean mining, half of it done by the Authority's own operating arm, known as the Enterprise, and half by private and state companies...
...These include Algeria, Egypt, Sierra Leone, Sri Lanka and Yugoslavia...
...Champions of the CHF Proposal say that in the near future it would provide some five billion dollars a year for the international community and substantially more in the years to come...
...What drives the Reaganites up the wall is that in order to protect the interests of land-based producers of those same metals, e,g., Zaire, Zambia and Peru, the Authority could and would severely limit nodule production...
...The first objective was to end the marathon Law of the Sea Conference, and, if at all possible, to end it on a note of triumph...
...The conventional wisdom says that the bold and imaginative Common Heritage Fund Proposal, first introduced by Nepal in 1978, is too controversial and too late and would be a "treaty breaker...
...The Assembly substituted the phrase, "beyond national jurisdiction...
...Surely its most bizarre features are those having to do with the adoption of the Seabed Authority's rules and regulations, without which the Authority cannot operate...
...Furthermore adoption of those rules and regulations will require the unanimous vote of the thirty-six nation Council...
...Indeed, U.S...
...Each treaty draft in both cases was a great disappointment to champions of world order...
...The barrel of oil that sold for less than three dollars each in 1967 is selling for more than thirty dollars a barrel in 1981...
...Traditional internationalists would have been excited by the kind of Law of the Sea treaty Arvid Pardo called for...
...the diplomats praised Pardo to the skies...
...No longer a diplomat-he is now a political science professor at the University of Southern California - Pardo is now free to speak his mind...
...The party of Ronald Reagan is also the party of Arthur Vandenberg and Paul Hofffmann, two Republicans who played important roles in launching the Marshall Plan in the late nineteen forties...
...On the eve of spring-meeting in New York Secretary of State Haig instructed the U.S...
...So should the many concerned people who should have been following the Conference but weren't...
...If it can't reach agreement, the Council will be blamed and not, hopefully, the Conference or the United Nations...
...Appearances to the contrary, the proposal has a fighting ch'knce...
...But there is not much time...
...The second objective, dear to the heart of geographically advantaged countries, is to see that coastal nations get a certified title to the immense wealth of the EEZ, no matter what, if anything, happens to the proposed Deep Seabed Authority...
...In its 1970 Seabed Declaration the General Assembly deliberately rejected Pardo's plea that the common heritage area begin, as he repeatedly urged, "beyond present national jurisdiction...
...delegation, Elliot Richardson, had predicted that the seven-year-old Conference would reach agreement on a treaty draft at its 1981 session...
...What the Law of the Sea establishment and their supporters need is a better product, a much better product...
...There is still time, courtesy of the Reagan review, to get the Law of the Sea Conference to do what it was supposed to do...
...opposed the 200-mile EEZ-and thereby contributed greatly to the popularity of the Draft Convention in United States...
...For many months they have discouraged criticism of it by saying that the Conference will collapse if "the delicate balance of the Draft Convention" is upset...
...Indeed it gives a few geographically fortunate countries, the "broad margin states," sovereign rights to seabed resources far beyond the 200 mile EEZ...
...Unless they rethink their position, the Latins will bear the major responsibility for the scandalously unjust treatment which Third World countries get in the treaty...
...His basic thesis was that a bold approach to the ocean crisis would completely transform the international situation and greatly improve the world's chances for peace and justice...
...Many supporters of SALT II were convinced that it would do very little to restrain the arms race, indeed that it tended to legitimize that race...
...As Pardo and many others have pointed out, two dozen countries, more of them rich than poor, will get the overwhelming proportion of that EEZ wealth...
...It will not be easy for the Conference to bridge the broad gap between the Reagan ideologues and the ideologues of the Group of 77, the caucus of some 120 developing nations...
...The other is a tax on the exploitation of the polymetallic nodules of the deep ocean...
...However they rejected the very heart of his proposal, i.e., revenue-raising from offshore oil and gas...
...Pardo's twenty billion dollars a year would be a perfect answer to the eloquent pleas of the Brandt Commission, the General Assembly, UNCTAD and many other bodies that the world find a way to secure regular, substantial, and assured funding for the least developed countries...
...Supporters of the Draft Convention are aware that the major impact of the treaty they are asked to champion is, as Pardo has said, to enrich the rich and to make the poor poorer...
...In the sessions of the UN Seabed Committee (1968-73) and the Law of the Sea Conference (1973...
...Pardo says the CHF Proposal deserves the most serious consideration...
...Central to that address was Pardo's idea that offshore mineral wealth could be and should be a major source of development funding for low-income countries...
...opposition has already contributed great;u tp the popularity of the Draft Convention in a Third World which used to be very skeptical about it...
...The SALT-watchers complained bitterly that the Carter administration had confronted them with a fait accompli...
...They should make the world-and the delegates-stop and think...
...There are two sources of common heritage funding-in the Draft Convention...
...It will be some months, possibly even years, after the signing session before the world learns whether the thirty-six-nation Council can reach consensus on the rules and regulations of the Authority...
...Almost all of that money would have come from a common heritage tax on the exploitation of offshore oil and gas...
...And grab they did...
...ALTHOUGH THEY are not nearly as significant as the EEZ, other features of the Draft Convention have received far more media attention...
...Most of the revenue for the Fund would come from a common heritage tax on the oil and gas in the EEZ, a tax graduated to the per capita income of the coastal states as well as to their offshore mineral income...
...Ignoring the declared opposition of a group of some fifty landlocked and geographically disadvantaged states, its authors defined the EEZ in such a way that the coastal states will get every penny of the more than thirty trillion dollars worth of oil arid gas within the zone...
...One is a modest tax on the very limited amount of oil and gas which will be exploited beyond 200 miles...
...That draft, said Richardson would be very similar to the Draft Convention...
...All of us should be asking what the Law of the Sea Conference has done with the magnificent opportunity it had when it first convened in late 1973...
...That was how James Malone, the new delegation head, explained it to a subcommittee of the Senate Foreign Relations Committee in early June...
...Fortunately, Arvid Pardo's banner is still waving in the Law of the Sea Conference...
...We should be asking how well the Conference has lived up to the great expectations the world had for it in 1967 when Ambassador Arvid Pardo of Malta made his famous Common Heritage Address in the UN General Assembly...
...Instead of using the precious months (be they nine or nineteen) of the "Reagan Pause" to improve a very bad treaty they are making support of the present text of the Draft Convention an article of liberal faith...
...Unfortunately, some decisions have to be made...
...And it is precisely within the zone that the overwhelming proportion of exploitable oil and gas is to be found...
...In fact the Proposal is just in time...
...Not surprisingly the substitute phrase was interpreted as an invitation to coastal states to grab as much of the oceans' resources as they could, as quickly as they could...
...THERE is a striking resemblance between the current debate on the Draft Convention on the Law of the Sea and the 1979 debate on the SALT II Treaty...
...No wonder Arvid Pardo is angry...
...What Conference delegates and Conference watchers should be doing during this most crucial period is to take a fresh look at this long and incredibly complex treaty Draft...
...What will the Draft Convention do for the eight hundred million people on this planet who live in abject poverty...
...WHAT DOES Pardo think of the Draft Convention...
...The scenario could be repeated with respect to the Draft Convention...
...The EEZ article is the most important article in the treaty...
...They recalled that at the end of last summer's Geneva session, the then head of the U.S...
...Indeed a cynic might regard the mighty tempest with respect to the deep seabed as a scam cleverly designed to divert attention from the great ripoff of the offshore oil and gas...
...They haven't gotten interested -and won't get interested--in a Draft Covenant which enriches a few already rich nations, and adds a few Kuwaits to the developing world but ignores the desperate need of eight hundred million human beings...
...The Conference officers put a 200-mile "exclusive economic zone" (EEZ) into each of the several negotiating texts they drafted for the delegates' consideration...
...They would have warmly welcomed an invitation, had it been proffered, to help shape the SALT II Treaty . . . Not so the Law of the Sea-watchers...
...And if, which could happen, the Reagan administration suddenly endorses the Draft Convention, the "realists" will realize that their imprudent prudence had helped to bury-and bury forever-Arvid Pardo's common heritage and all that it could mean, not only for developing nations, but for developed nations as well...
...The idea of signing the treaty before agreement is reached on the Authority's rules and regulations bears an uncanny resemblance to Senator George Aiken's famous formula for ending the Vietnam war, i.e., "Declare a victory and get out...
...This interference with the free market is denounced as sinful by conservative U.S...
...Conference leaders should join rank and file delegates and nongovernmental observers in a concerted effort to improve a Draft Convention that is very disappointing, although not for the reasons advanced in the Reagan administration...
...It is about the deep seabed portion of the treaty that the Reagan administration has its greatest reservations...
...Although there is brave talk about completing a treaty this summer, few delegates take it seriously...
...A second 1982 session-or a 1983 one-4is quite likely...
...After all, in the early seventies the U.S...
...The length of the Reagan review makes it all but certain that serious negotiations will not resume until the spring of 1982 or even later...
...This is particularly true of the arrangements for deep seabed mining...
...In his 1967 address he said that by 1975 the Maltese Proposal would generate five billion dollars a year for international community purposes...
...The result was that neither treaty had support that was either very broad or very deep...
...But if one or more nations says "No" there will be no rules and regulations, no distribution of revenues, no aid to adversely affected countries...
...Those are strong words from the father of the Law of the Sea Conference...
...If it can't find rules and regulations which will satisfy all thirty-six nations maybe it can allocate revenues, slim as they are, in a way that will satisfy all thirty-six or decide to help countries adversely affected by deep seabed mining in a way that will satisfy all thirty-six...
...President Truman and the Republican leadership were able to sell it to the American people not because they were brilliant salesmen but because the product they were selling was an answer to a deeply felt need...
...According to the treaty the adoption of the rules and regulations, a most controversial question, will take place after the treaty is signed...
...delegation to tread water during that session...
...In the 1980's the Maltese Proposal would have meant twenty billion dollars a year and for an obvious reason...
...Haig's instructions startled and angered many delegates to the 160-nation Conference...
...On March 9, the opening day of the New York meetings, the Reagan administration threw its second punch...
...The major obstacle is not the developed countries, who would probably accept it, however reluctantly, but the Latin American countries, several of whom approach the Law of the Sea with all the ideological fervor of the Reagan administration...
...In a Monday morning massacre several high ranking members of the U.S...
...While some observers see the practice of deciding by consensus as a most constructive innovation, others see it as a device for postponing unpleasant decisions...
...The Draft Convention's euphemism for this "everybody has a veto" system is "consensus...
...Those far-sighted realists didn't begin by asking "What will sell...
...The deep seabed portion of the Draft Convention is so complex that there is good reason to believe that it may never go into effect...
...Although almost all of its sponsors are landlocked states, a number of coastal states have indicated their sympathy and/or support for it...
...The Draft Convention does that beautifully...
...The Geneva meetings are being held in spite of U.S...
...That they can keep a straight face while using the phrase "delicate balance" is remarkable because the Draft Convention is weighted overwhelmingly in favor of a very few geographically fortunate nations, most of them rich nations...
...But there is an important difference between the attitudes of SALT-watchers and Law of the Sea-watchers...
...When they get that better product they will be able to sell it to the American people and to the people of the world...
...So did most other delegations...
...A glittering signing ceremony in Caracas would seem to be the cure...
...With a little skill and a little luck the CHF Proposal could be sold inside and outside the Conference as a very sound and sensible way of narrowing the scandalous gap between the rich and poor nations, something which is in the national interest of all nations, and not least the United States...
...Ending the Conference on a note of triumph is of no small importance to a United Nations which has been deeply embarrassed by the length of the Conference and by the world's perception of it as a probable failure...
...By putting off the adoption of rules and regulations until after the treaty is signed the Conference establishment would achieve two of its most important objectives...
...They began by asking "What is necessary...
...senators, the same senators who regularly vote to limit the production of tobacco, milk, soybeans and many other agricultural commodities in order to protect the income of American farmers...
Vol. 108 • August 1981 • No. 15
