A Constitution for the Seas

By Marguerite Johnson

At long last, a treaty sets the rules for the world's waters

By any measure, it was a monumental achievement. "I've served in nine presidential-appointed offices, but nothing was as tough and complex as this," said Elliot Richardson, the chief U.S. delegate to the Third U.N. Conference on the Law of the Sea. "It was like playing no-limit poker and three-dimensional chess at the same time." Richardson, who served as both Secretary of Defense and Secretary of Health, Education and Welfare during the Nixon Administration, was talking about the negotiations for a Law of the Sea treaty, which came to a virtual conclusion last week after six years of deliberations. The climactic conference, at the Palais des Nations in Geneva, approved a draft of the treaty that is expected to go to the member states for ratification next year.

The 180-page document, with more than 300 articles and eight annexes, definitively covers every conceivable issue dealing with the seas, from the definition of what constitutes an island* to the jurisdiction over fish that live in fresh water but spawn in the ocean. Most remarkable of all is the fact that each question was decided by consensus, thus enhancing prospects that the treaty will win approval when it comes up for ratification.

"There is nothing comparable to it in diplomatic history," said Venezuelan Delegate Andres Aguilar, who recalled that delegates originally expected it would be a labor of a few months. But the complexities, and the delegations, grew. By last week there was a cast of thousands: 460 registered delegates from 156 participating countries and 24 nongovernmental organizations--the Sierra Club and the Friends of the Earth, for example--and back-up staff of 2,000. The result, said Canada's J. Alan Beesley, chairman of the drafting committee, is "the most significant achievement in international relations since the U.N. charter. It is indeed a constitution for the seas."

The treaty, in effect, consecrates the dictum laid down by Dutch Jurist Hugo Grotius in 1609 that the oceans of the world belong to everyone. The problem, says Richardson, was that "the old Grotius order was breaking down." When negotiations first began, 50 countries had extended the traditional three-mile territorial limit to twelve miles, and many had pushed it to 200 miles. Bickering over fishing rights had even flared into gun battles. Freedom of passage through strategic straits was jeopardized. The discovery of mineral nodules on the seabed raised questions never defined in international law. The draft treaty attempts to settle these questions once and for all. Its main conclusions:

BOUNDARIES. The treaty recognizes the twelve-mile territorial limit, and also acknowledges a 200-mile "exclusive economic zone" for each coastal nation. Coastal states have jurisdiction over marine resources in their economic zones and on the continental shelves beyond 200 miles.

OCEAN TRANSIT. The treaty reaffirms the right of passage on the high seas, as well as within the twelve-mile limits under certain conditions. It also guarantees unimpeded transit through straits used for international navigation for all ships.

SEABED MINING. The treaty sets up a complicated system for both private and international exploitation of the seabed minerals. The mining issue was a sticking point between the developing nations and those industrialized countries that have a technological advantage for such exploration. The treaty provides for a U.N.-chartered mining company, called the Enter prise, to share in exploration and mining. Revenues will be reallocated among developing countries.

FISHING. The treaty awards coastal states absolute control over the fish in their economic zones and the right to sell fishing interests to other nations as they choose.

MARINE ENVIRONMENT. The treaty paves the way for environmental safe guards to protect the seas from contamination, even if it originates in polluted inland waterways. Pollution by ships will be prohibited, and fines levied on violators.

JURISDICTIONAL AGENCIES. The treaty provides for the establishment of two governing units: 1) the International Seabed Authority, which will control and manage the exploration and exploitation of deep seabed resources. In addition to the Enterprise, it will contain a policymaking Assembly and a 36-member executive Council that will make sure the policies comply with the treaty's provisions; 2) a supranational Law of the Sea Tribunal, which will arbitrate disputes.

The long negotiations produced shifting and sometimes curious alignments between nations. The superpowers' mutual interest in preserving maneuverability for their navies kept the U.S. and the Soviet Union cooperating most of the time. They clashed when U.S. negotiators tried to protect the fish stocks that straddle the 200-mile American economic zone from Soviet trawlers that "vacuum" the fish beds. The U.S. apparently succeeded in gaining some protection.

The kaleidoscope of shifting interests made it impossible to sort out the "winners" and "losers." The major industrialized states managed to retain considerable control over underwater oil and gas exploration and most seabed mining, but only at a price. They had to commit themselves to a systematic transfer of technology, as well as compensatory payments to the less developed countries. In some of these provisions, in fact, many observers thought they saw the first glimmerings of the "new economic order" for which many Third World countries have long been clamoring.

*"An island is a naturally formed area of land, surrounded by water, which is above water at high tide."

With reporting by BRUCE VAN VOORST

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