22 January 1999
Source: Hardcopy World Affairs, Winter 1998, Vol. 160 No. 3, pp. 134-150.  Thanks to the publisher and Peter Leitner.

See also Mr. Leitner's article "Supercomputers, Test Ban Treaties, and the Virtual Bomb:" http://jya.com/stb.htm

A Bad Treaty Returns THE CASE OF THE LAW OF THE SEA TREATY
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By PETER M. LEITNER	Peter M. Leitner is a senior strategic trade advisor at the Department of Defense. The opinions expressed herein are the author's alone and do not represent the views of the Department of Defense, the government of the United States, or any organization.

[A] treaty is likely to be a highly deceptive document, creating illusory security or a false set of expectations about the way nations party to it are likely to behave in the future ...

I would recall George Kennan's comment that the most fundamental error of United States foreign policy is the belief that international law can actually temper the dangerous ambitions of governments. For the United States to accept a treaty on law of the sea which is less than ideal from the standpoint of protecting substantive national interests because some positive premium value is placed on the treaty itself -- on its mere existence -- is to make a fundamental error of judgment. The error lies in assigning a positive, premium value to the existence of a law of the sea treaty. Assuming such a positive value stems from a misperception about the role and place of treaties in regulating the conduct of nations (Knight 1981, 1).

On 9 July 1982, President Reagan announced that the United States would not become a signatory to the UN Convention on the Law of the Sea. This rejection was preceded by a series of events that cast serious doubt that the United States intended to sign the treaty. In March 1981, the president announced that his administration would undertake a comprehensive review of the draft treaty to assure that it met U.S. interests. On 29 January 1982, he reported that the results of the review concluded that major elements of the deep seabed mining provisions were not acceptable and would have to be changed during the final (8 March-30 April 1982) negotiating session in New York.

The Third UN Conference on the Law of the Sea, which had been meeting periodically since 1973, drafted language on a broad range of issues, including territorial seas, economic zones, environmental protection, fishing rights, ownership and management of continental shelves. exploration and exploitation of seabed resources, rights of passage through, under, and over straits for international navigation. and new fora for settlement of disputes. But major sections of the deep seabed mining provisions were unacceptable to the United States and most industrialized allies. The concern that the Reagan administration voiced over the draft treaty led them to replace a significant segment of the U.S. delegation and suspend negotiating efforts while it conducted a review to determine the degree to which the treaty met U.S. interests.

That review culminated in the presidential statement of 29 January 1982 that most provisions of the draft were acceptable and consistent with U.S. interests but that major elements of the deep seabed mining portion were not. The president identified six necessary changes to the deep seabed mining provisions before the treaty could be supported by the United States. As Reagan stated,

We will seek changes necessary to correct those unacceptable elements and to achieve the goal of a treaty that:

• Will not deter development of any deep seabed mineral resources to meet national and world demand;

• Will assure national access to these resources by current and future qualified entities to enhance U.S. security of supply, to avoid monopolization of the resources by the operating arm of the International Authority, and to promote the economic development of the resources;

• Will provide a decision making role in the deep seabed regime that fairly reflects and effectively protects the political and economic interests and financial contributions of participating states;

• Will not allow for amendments to come into force without approval of the participating states, including in our case the advice and consent of the Senate;

• Will not set other undesirable precedents for international organizations; and

• Will be likely to receive the advice and consent of the Senate. In this regard, the convention should not contain provisions for the mandatory transfer of private technology and participation by and funding for national liberation movements.

The U.S. delegation had a difficult task on returning to the eleventh session of the conference, billed as the final negotiating session, to renegotiate elements of the treaty to achieve the president's stated objectives. When the conference opened on 8 March 1982, the U.S. delegation presented a list of general principles for consideration. These were promptly rejected, however, by the Group of 77 (a coalition that included over 110 third world countries organized into a fairly cohesive voting bloc), which demanded a listing of specific word change amendments to the text, arguing that the time for the negotiation of basic principles had long since passed. The U.S. delegation prepared what became known as the "Green Book," a compilation of over 100 proposed amendments. This, too, was rejected as a basis for negotiation -- the Group of 77 insisted that the proposed amendments would affect the basic character of the treaty and were thus unacceptable.

Negotiations between the United States and the Group of 77 continued through intermediaries for the duration of the conference. The primary set of intermediaries known as the Group of 11 (Australia, Austria, Canada, Denmark, Finland, Iceland, Ireland, New Zealand, Norway, Sweden, and Switzerland) offered numerous compromise texts, but they were largely ineffective in an atmosphere of increasing polarization.

On 30 April 1982, the last day of the conference, the leadership attempted to have the treaty adopted by consensus, but the United States exercised its right to have the treaty, as a whole, put up for a two-thirds vote. The final outcome was 130 in favor and 4 against, with 17 abstentions. The four states voting against adoption of the treaty were the United States, Israel, Turkey, and Venezuela. The seventeen abstentions were cast by the United Kingdom, the Federal Republic of Germany, Belgium, the Netherlands, Luxembourg, Italy, Spain, Thailand, and the Soviet bloc with the exception of Romania.¹ Two countries with major potential for ocean mining, France and Japan, voted in favor of the treaty.

When the conference concluded, the United States began another review of the outcome of the negotiations, the results of which President Reagan announced on 9 July 1982:

Our review recognizes . . . that the deep seabed mining part of the convention does not meet United States objectives. For this reason, I am announcing today that the United States will not sign the convention as adopted by the Conference, and our participation in the remaining Conference process will be at the technical level and concerned with those provisions that serve United States interests.

1994 TREATY MODIFICATIONS

In 1990, UN Secretary General Javier Perez de Cuellar initiated consultations among interested governments aimed at achieving universal participation in the convention. Factors contributing to this renewed pressure included the desire for universal participation, improvements in the international political climate, changes in economic ideology that meant greater acceptance of free-market principles, and the steady increase in the number of ratifications toward the sixty required to bring the convention into force.

In April 1993, the Clinton administration announced that it would actively participate in the consultations on the outstanding issues in the deep-seabed portions of the convention. The consultations led to adoption, on 28 July 1994, by the UN General Assembly (by a vote of 121 in favor [including the United States I to 0 against, with 7 [Colombia, Nicaragua, Panama, Peru, Russian Federation, Thailand, and Venezuela] abstentions, and 36 nations absent) of Resolution 48/263, opening for signature an agreement relating to the Implementation of Part Xl of the United Nations Convention on the Law of the Sea. The agreement amended various seabed-related parts of the convention. On 7 October 1994, President Clinton transmitted to the Senate the 1982 United Nations Convention on the Law of the Sea and 1994 agreement relating to the Implementation of Part Xl of the United Nations convention (Treaty Document 103-39). The package was referred to the Senate Committee on Foreign Relations. On 16 November 1994, the UN Law of the Sea Convention entered into force but without accession by the United States. A primary question facing the Senate is whether the amendments offered in the agreement sufficiently alter the direction of the convention's deep seabed mining provisions to make it acceptable to those in the United States who oppose ratification.

The 1994 agreement is touted by the UN Secretary General to be an integral part of the convention package that entered into force on 16 November 1994 and addresses issues related to decision making, review conference, technology transfer, and obstacles to development. In the event of inconsistencies, the agreement and annex language take precedence over convention language. The annex contains the referenced changes to part Xl and annexes III and IV of the convention, while the agreement defines the legal relationship between the convention and the agreement, explains the ways in which states may consent to be bound by the agreement, and sets the terms of entry into force of the agreement and its provisional application. However, the legal or binding nature of this agreement is both unprecedented and untested. As a result, the permanence of the changes achieved by this agreement are more a matter of conjecture, or possibly wishful thinking, than definitive judgment.

SUPERFICIAL CHANGES ARE INADEQUATE

While a number of changes appear to have been achieved by the 1993-94 negotiations, their depth, substance, effectiveness, and legality are highly suspect. The new agreement "does not, even purport to amend the convention. It establishes controlling 'interpretive provisions' that will control in the event of a dispute. This is not an approach that gives confidence to prospective investors in ocean mining" (Hoyle 1994).

Adherence to the Agreement and the Convention

The agreement was opened for signature for a twelve-month period, starting 28 July 1994. After that date, any ratification, formal confirmation of, or accession to the convention is also automatically consent to be bound by the agreement. Since the purpose of the agreement is to promote universal participation in the convention, the agreement uses several ways to achieve consent to the agreement. At the same time, the language on consent also had to respond to the legal requirements of the sixty-plus states that had already ratified or acceded to the convention as well as to accommodate those states that had not ratified or acceded to the convention. In addition, the agreement had to take effect as the convention entered into force in order to maintain the integral link between the two. That link required use of provisional application as a procedure for operation of the agreement.

Effective 16 November 1994, the agreement was applied provisionally. pending its entry into force. For each country, provisional application was to be "in accordance with . . . national or internal laws and regulations." Provisional application of the agreement will terminate on its entry into force or on 16 November 1998. States that (1) voted for adoption of the agreement, (2) signed the agreement, (3) consented in writing to its provisional application, or (4) acceded to the agreement will all apply the agreement provisionally, with certain exceptions. Those exceptions include any state that voted in favor but before 16 November 1994, and notified the United Nations in writing that it would not apply the agreement provisionally or that it would consent to provisional application only on subsequent signature or written notification and any state that signed the agreement but notified the United Nations in writing at the time of signature that it would not apply the agreement provisionally.

The United States announced, when it signed the agreement on 29 July 1994, that "it intends to apply the agreement provisionally. Provisional application by the United States will allow us to advance our seabed mining interests by participating in the International Seabed Authority from the outset to ensure that the implementation of the regime is consistent with those interests."

Adherence to the Agreement: Provisions

The most curious and potentially most threatening aspect of the UN Law of the Sea process is provisional application. We are told that the Administration intends to sign or in some other way commit the United States to the "Agreement Relating to the Implementation of Part Xl of the 1982 United Nations Convention on the Law of the Sea" this summer. The Administration does not intend to submit the "agreement" and the 1982 convention for advice and consent for some years, possibly not until mid1998. In the meantime, the United States as a signatory of the "Agreement" may become a "Provisional Member" of the Council, the executive organ of the Seabed Authority. We are told by the Administration that United States domestic seabed mining law will continue to control until the United States becomes a full Contracting Party to the United Nations Convention on the Law of the Sea by ratification. At the same time, the convention appears to favor those countries which apply to the Seabed Authority for mining rights in the interim. (Hoyle 1994)

Article 4 (3) of the agreement sets forth the ways in which a state or entity may express its consent to be bound by the agreement:

(a) signature that is equivalent to consent to be bound;
(b) signature subject to ratification or formal confirmation, followed by ratification;
(c) signature subject to a procedure set out in Article 5; and
(d) accession.

Article 5provides an unprecedented "simplified" procedure to be used by any of the sixty states that ratified or acceded to the convention before the agreement was adopted in July 1994 and then subsequently signed the agreement. Upon their signature, such states will automatically be considered parties to the agreement as of 28 July 1995, unless they notify the United Nations they do not wish to be bound by the agreement in this way. If a state uses that notification, it may become bound only by specific act of ratification or formal confirmation.

The agreement will enter into force thirty days after the date on which forty states have established their consent to be bound, provided that at least seven are "pioneer investors with at least five of the seven being developed or [industrialized] states." For each state establishing consent to be bound after entry into force of the agreement, entry into force takes place thirty days following establishment of the consent to be bound.

HOW DID THE TREATY GET THIS WAY?

Four seminal events marked the errant course that led to the eventual rejection of the treaty by the United States. These are:

• The acceptance without definition, of the principle that the mineral resources of the seabed, in areas beyond national jurisdiction, are "the common heritage of mankind." While the principle is a noble statement and easily acceptable, it has come to be defined in such a way that justifies the creation of a supranational regulatory agency that will control most activities occurring within the "area."

• The 1975 proposal to the UN General Assembly, by then-Secretary of State Henry Kissinger, to support a "parallel system" of ocean mining whereby commercial miners and their sponsoring states would support direct competitive UN mining operations in the deep seabed. This bombshell of a proposal was a complete surprise to U.S. industry, other government departments, and even to most of the U.S. Law of the Sea delegation. While aimed at cooling off New International Economic Order rhetoric in other UN fora by throwing them a bone, this action raised the Group of 77's level of expectation of further concessions and was a contributing factor in emboldening them.

• The U.S. decision to return to treaty negotiations even after a small group of developing country delegates fundamentally altered the agreed-on ocean mining negotiating text after the sixth session of the conference was adjourned. The U.S. decision to return was, in effect, acceptance of the legitimacy of an illegitimate anti-free enterprise text and created an insurmountable obstacle to achieving an acceptable treaty.

• The U.S. decision to provide conference participants full access to a U.S.-financed model of an ocean mining venture. While the purpose was to narrow the debate on levels of taxation, fees, and production limits to be placed on potential ocean miners, its effect was to provide ammunition to third world negotiators to use against U.S. free market proposals.

The Common Heritage of Mankind Principle

In a 1967 statement at the United Nations, Ambassador Pardo of Malta proposed that seabed resources be regarded as the "common heritage of mankind" and that this area not be subject to national appropriation. Two years later, the General Assembly passed the Moratorium on Seabed Exploration and Exploitation (Resolution 2574-D (XXIV)), which called on all states to refrain from seabed resource exploitation until the establishment of an international seabed regime that would administer the area in the interest of all mankind. The General Assembly Declaration of General Principles on the Seabed (Resolution 2749 (XXV)), adopted in 1970, endorsed the common heritage principle but included no definition of the area itself. The United States and many other nations opposed the Moratorium Resolution.

The common heritage concept has wide support among both developing and developed nations, including the United States. However, interpretations of this principle differ markedly. The developed nations feel that free and open exploitation of the seabeds, as long as territorial sovereignty is not claimed, is in the interest of all nations and allowable under both the common heritage principle and the traditional doctrine of freedom of the high seas. The developing nations, however, lean toward a more collectivist interpretation of the term "common heritage of mankind" to mean that individual states are barred from exploiting mankind's possession unless it is conducted under the auspices of a generally accepted international regime. Despite these differing interpretations. the principle itself has been the chief impetus behind efforts to establish an International Seabed Authority to administer the "common heritage" in the interest of all mankind.

The Parallel System of Mining

In an attempt to accelerate the pace of the treaty negotiations, Secretary of State Kissinger made an unprecedented offer to the UN General Assembly. The deal he proposed in 1975 sought:

to ensure that all nations, developed and developing, have adequate access to seabed mining sites:

• The United States proposes that the treaty should guarantee nondiscriminatory access for states and their nationals to deep seabed resources under specified and reasonable conditions. The requirement of guaranteed access will not be met if the treaty contains arbitrary or restrictive limitations on the number of mine sites which any nation might exploit. And such restrictions are unnecessary because deep seabed mining cannot be monopolized; there are many more productive seabed mining sites than conceivably can be mined for centuries to come.
  
  The United States accepts that an "Enterprise" should be established as part of the International Seabed Resource Authority and given the right to exploit the deep seabeds under the same conditions as apply to all mining.

• The United States could accept as part of an overall settlement a system in which prime mining sites are reserved for exclusive exploitation by the Enterprise or by the developing countries directly-if this approach meets with broad support. Under this system, each individual contractor would propose two mine sites for exploitation. The Authority would then select one of these sites, which would be mined by the Authority directly or made available to developing countries at its discretion. The other site would be mined by the contractor on his own.

• The United States proposes that the International Authority should supervise a system of revenue sharing from mining activities for the use of the international community, primarily for the needs of the poorest countries. These revenues will not only advance the growth of developing countries; they will provide tangible evidence that a fair share in global economic activity can be achieved by a policy of cooperation. Revenue sharing could be based either on royalties or on a system of profit sharing from contract mining. Such a system would give reality to the designation of the deep seabeds as the common heritage of all mankind.

• Finally, the United States is prepared to make a major effort to enhance the skills and access of developing countries to advanced deep seabed mining technology in order to assist their capabilities in this field. For example, incentives should be established for private companies to participate in agreements to share technology and train personnel from developing countries. (Kissinger 1976, 540-41)

This Kissinger sop to the Group of 77, in an attempt to placate ever-increasing New International Economic Order demands, opened up a Pandora's box of convoluted logic, historic precedents, and escalating demands that set the stage for even bolder expectations by the Group of 77. Expectations and perceptions of U.S. weakness set the stage for the Engo treachery at the sixth session of the negotiations.

Engo's Treachery

The sixth session of the conference was held from 23 May-15 July 1977. As was the standard practice since UNCLOS III first convened in 1972, the work of the conference was organized around three committees. Committee I dealt with seabed mining issues. Committee 11 focused on fisheries, territorial sea claims, and activities on the continental shelf. Committee III dealt with dispute settlement, research, and environmental matters.

While the sixth session made slow but steady progress on most issues, Committee I, under the chairmanship of Paul Bamala Engo of Cameroon, was responsible for fanning a smoldering set of confrontational North/South issues into a conflagration whose effects are still felt today, some twenty years later.

The following excerpts from the U.S. delegation report describe the events, as well as the mood, of that period most effectively:

Under the fair and judicious leadership of Minister Jens Evensen of Norway a responsible and effective discussion of seabed issues took place. This discussion and the texts formulated by Minister Evensen offered real prospects that the impasse on seabed mining issues could be resolved on terms acceptable to both the developed and developing nations.

Regrettably, however, the new "composite" text concerning the system of exploitation and governance of the deep seabed Area (Part Xl) is now fundamentally unacceptable. It deviates markedly from the proposed compromise text which had been prepared on the basis of full, fair and open discussion under Minister Evensen's leadership.

The Evensen text, although not without problems, was generally viewed as a useful basis for further negotiation. The newer text -- produced in private, never discussed with a representative group of concerned nations, and released only after this session of the Conference terminated -- cannot be viewed as a responsible substantive contribution to further negotiation. Indeed, the manner of its production -- treating weeks of serious debate and responsible negotiation as essentially irrelevant -- raises an equally serious procedural problem: whether the Law of the Sea Conference can be organized to treat deep seabed issues with the seriousness they, and the Conference which depends on their satisfactory resolution, demand.

Among the serious points of substantive difficulty in the latest deep Seabeds text, and the system it would define are the following:

• It would not give the reasonable assurance of access that is necessary if we and others could be expected to help finance the Enterprise and to accept a "parallel system" as a basis of compromise.

• It could be read to make technology transfer by contractors a condition of access to the deep seabed-subject, at least in part, to negotiation in the pursuit of a contract.

• It could be read to give the Seabed Authority the power effectively to mandate joint ventures with the authority as a condition for access.

• It fails to set clear and reasonable limits on the financial burdens to be borne by contractors; indeed it simply combines a wide range of alternative financial burdens, as if such a combination could be a compromise-when, in fact, it is likely to prove a compound burden sufficient to stifle seabed development.

• It would set an artificial limit on seabed production of minerals from nodules-which is not only objectionable in principle; it is also far more stringent than would be necessary to protect specific developing country producers from possible adverse effects, and is incompatible with the basic economic interests of a developing world generally.

• It would give the Seabed Authority extremely broad new, open-ended power to regulate all other mineral production from the seabed "as appropriate."

• It would appear, arguably, to give the Authority unacceptable new power to regulate scientific research in the Area.

• It would fail adequately to protect minority interests in its system of governance and would, accordingly, threaten to allow the abuse of power by an anomalous "majority."

• It would allow the distribution of benefits from seabed exploitation to peoples and countries not party to the convention.

• It would seriously prejudice the likely long-term character of the international regime, by requiring that -- if agreement to the contrary is not reached within 25 years -- the regime shall automatically be converted into a "unitary" system, ruling out direct access by contractors, except to the extent that the Authority might seek their participation in joint ventures with it.

With this unfortunate, last-minute deviation from what had seemed to be an emerging direction of promise in the deep seabed negotiations, I am led now to recommend to the President of the United States that our government must review not only the balance among our substantive interests but also whether an agreement acceptable to all governments can best be achieved through the kind of negotiations which have thus far taken place. (U.S. Department of State 1977, 5-6)

It was astounding that after months of public brooding over the Engo double-cross, the Carter administration decided to return to the conference and continue negotiations based on the Engo draft. The United States lost enormous ground at that point when it "blinked first" in the game of chicken between the interests of industrialized states and the redistributive demands of the Group of 77 promoting the New International Economic Order.

The Odyssey of the MIT Model

Within the context of UNCLOS III technical negotiations over the creation of a future seabeds regime, the old maxim "knowledge is power" had taken on a special meaning. While the accumulation, manipulation, and selective dissemination of specialized bits of information is a powerful negotiating tool, the premature or unnecessary release of information may erode one's own negotiating position.

One of the most notable characteristics of Committee One (Deep Seabed Regime) negotiations throughout the life of UNCLOS III prior to the seventh session convening in 1978 in Geneva was the paucity of technical information concerning future ocean mining operations. Prior to Geneva'78, the main source of technical information had been the United Nations Secretariat, which attempted to quantify the potential impact that ocean mining would have on traditional mineral markets. Lacking more accurate information, the secretariat made reasoned estimates of nodule mineral content and abundance based on an extremely weak database. As a result, the secretariat studies, although quite interesting to read, were painfully inadequate from a technical standpoint.

Until that point, only the United States and a handful of other industrialized potential ocean mining countries had some degree of understanding of the likely economic dynamics of an ocean mining operation. As most of the hard data associated with projecting internal rates of return for business activities are considered proprietary, even sponsoring governments did not have complete information.

In spite of this widely perceived lack of hard data, the conference sought to regulate an as yet nonexistent industry about which nothing for certain was known. In an attempt to overcome the obvious handicap created by an informational vacuum, the Sea Grant program of the National Oceanic and Atmospheric Administration (NOAA) commissioned the Massachusetts Institute of Technology (MIT) to create a detailed computer model of a future U.S. ocean mining corporation. This project sought to be able, by building in a high degree of flexibility, to predict the economics of a commercial venture under a variable set of assumptions and was to be used for U.S. government planning and negotiating purposes.

The research yielded a computer model that estimated the costs a first-generation ocean mining operation in the Eastern Pacific would likely encounter. The results were released in a report dated March 1978 entitled "A Cost Model of Deep Ocean Mining and Associated Regulatory Issues" (Massachusetts Institute of Technology 1978) and was distributed within the United States and a number were supplied to the UN Secretariat for distribution among all of the national delegations to UNCLOS III.

The wide distribution of the MIT model (a problem that the U.S. delegation refused to recognize) raised the state of negotiations at UNCLOS to a level that the United States and its industrialized allies were ill-prepared to manage. While a slow, evolutionary process of sophistication within Committee One was underway prior to Geneva, it was possible to influence the conference gradually toward the U.S. position both by waiting for a gradual weakening of the Group of 77 as a dominating political bloc and by selectively releasing information to the conference.

The release of the MIT model had a threefold effect on the conference:

(1) The model instantly galvanized participants along a generally accepted set of assumptions. This was most clearly expressed in the statement of Tommy Koh of Singapore, chairman of the subgroup of financial experts:

In the group of financial experts we were immediately confronted with the need to agree on a set of assumptions. Without an agreed framework of assumptions it would not have been possible for us to carry on with our discussions. We agreed that the best study to date was that undertaken by the Massachusetts Institute of Technology, entitled "A Cost Model of Deep Ocean Mining and Associated Regulatory Issues," hereinafter referred to as the MIT Study.

The act of agreeing on a common set of principles raised the tenor of negotiations to a level far more advanced than previously anticipated This quantum leap in the level of discussions obviously caught the U.S. negotiators unprepared as they were forced to admit, after repeated questions from other delegates, that the administration had not acted on such advanced questions as the domestic tax treatment to which contributions to an international authority would be subject. This admission proved an embarrassment to the U.S. delegation and should have served as a warning of other potential embarrassments that the delegation would face later.

(2) The model had the psychological effect of imparting to LDC conference participants an air of expertise regarding an advanced technological subject, thereby making them "as sophisticated" technically as their DC counterparts. This mind-set of presumed technical equality created an atmosphere conducive to the proliferation of unrealistic proposals. It was suddenly quite easy, and in some respects more legitimate, to seize on a particular number in the study and "run with it" without necessarily understanding how the number was determined or what its interrelationship with other assumptions might be.

(3) The presentation of the model and the subsequent release and promotion of conflicting data on the part of the U.S. delegation resulted in a cascade of technical misinformation. It was counterproductive for the United States to release a complete information package one day, which it touted as "the best available data," and to apologize for inaccurate bits and pieces the next day. This was particularly serious because those assumptions within the model that the United States had been trying to withdraw from discussion provide the economic/commercial underpinnings of the entire industry as postulated in the model. To the more suspicious delegations, the process created an image of tinkering with the figures in an attempt to put U.S. proposals in the most favorable light. Under such negotiating conditions, it was difficult for the United States to criticize other delegations for submitting proposals that may be considered outrageous or unsubstantiated. In effect, the conflicting nature of the U.S. presentation bestowed an equivalent legitimacy on all parties regarding the validity of their proposals.

With this experience fresh in their minds it was rather startling that the U.S. delegation compounded its errors by sponsoring a special seminar at Cambridge under the auspices of MIT for the express purpose of imparting to a score of LDC delegations a degree of sophistication in the use of the model. The delegates were given open access to the model itself. In addition, the MIT team and the U.S. delegation established an on-line capability while the conference was underway when it reconvened in New York that August.

Most striking in all of this unprecedented generosity to U.S. negotiating adversaries was the timing. The United States provided the means to undermine its technical proposals only one year after the Engo treachery at the sixth session. That treachery immediately followed Kissinger's offer of a parallel system of mining replete with loan guarantees for third world and UN activities. Such lemming-like behavior on the part of U.S. negotiators was unfortunately not an aberration; it was repeated several times in negotiations in other fields with equally disastrous results.

It is interesting to note that the motivation behind releasing the model was to prevent, through education, the expression of unrealistic proposals, which would confuse the negotiating process. However, this well-intentioned action brought about exactly what it sought to eliminate.

WHO HAS RATIFIED UNCLOS?

The legitimacy of any regime depends on a variety of factors, including its perceived importance, relevance, reasonableness, and practicality. These factors are in large part influenced by the power and importance of states that recognize, or are parties to, the regime. In the case of UNCLOS, 1993 saw the unprecedented fact of a treaty entering into force having been ratified by over sixty states (six of which are landlocked), without the participation of any Western industrialized nations.

Such a prospect was of great concern to treaty signatories because they feared it would be doomed to irrelevancy. Fearing such an outcome for the UN's premier New International Economic Order achievement, then-Secretary General Javier Perez de Cuellar, himself a former UNCLOS delegate, reopened talks in 1993 aimed at making the treaty more palatable to the industrialized countries.

Prior to the 1994 agreement, most industrialized countries followed the U.S. lead in refusing to accede to the treaty. Some shared the various concerns expressed by the United States. Others, however, were fearful that without U.S. participation and contribution of 25 percent of all financial assessments they would be required to bankroll the treaty themselves. Perhaps this is the ultimate source of U.S. leverage in governing the support of other nations as non-participants in the treaty.

As shown in Table 1, the list of treaty ratifiers is long but unimpressive and collectively account for less than 58 percent of the annual UN schedule of assessments. A UN-sponsored ocean mining corporation relying on these subscribers would be financially unviable and little threat to a non-participating United States. Table 2 lists those countries that have chosen to remain outside of the treaty regime. As of March 1997, 116 nations had deposited their instruments of ratification or accession (U.S. Department of State 1997).

TABLE 1 States Party to the Law of the Sea Convention (As of March 1997)
African	Asian	Eastern European	Latin America and Caribbean	Western Europe and Others
Algeria (.01) Angola (.01) Botswana (.01) Cameroon (.01) Cape Verde (.01) Comoros (.01) Cote d'Ivoire (.01) Djibouti (.01) Egypt (.07) Gambia (.01) Ghana (.01) Guinea (.01) Guinea-Bissau (.01) Kenya (.01) Mali (.01) Mauritania (.01) Mauritius (.01) Mozambique (.01) Namibia (.01) Nigeria (.16) Sao Tome and Principe (.01) Senegal (.01) Seychelles (.01) Sierra Leone (.01) Somalia (.01) Sudan (.01) Tanzania (.01) Togo (.01) Tunisia (.03) Uganda (.01) Zaire (.01) Zambia (.01) Zimbabwe (.01)	Bahrain (.01) Brunei (.02) Burma (.01) China (.72) Cook Islands Cyprus (.03) Fiji (.01) India (.31) Indonesia (.14) Iraq (.14) Japan (13.95) Jordan (.01) Kuwait (.20) Lebanon (.01) Malaysia (.14) Marshall Is. (.01) Micronesia (.01) Mongolia (.01) Nauru Oman (.04) Pakistan (.06) Palau Papua New Guinea (.01) Philippines (.06) Saudi Arabia (.80) Singapore (.14) S. Korea (.80) Sri Lanka (.01) Tonga Vietnam (.01) Samoa (.01) Yemen (.01)	Bosnia-    Herzegovina (.02) Bulgaria (.10) Croatia (.10) Czech Republic (.32) Macedonia (.01) Georgia (.16) Romania (.15) Russia (5.68) Slovakia (.10) Slovenia (.07) Yugoslavia (.11)	Antigua &    Barbuda (.01) Argentina (.48) Bahamas (.02) Barbados (.01) Belize (.01) Bolivia (.01) Brazil (1.62) Costa Rica (.01) Cuba (.07) Dominica (.01) Grenada (.01) Guatemala (.02) Guyana (.01) Haiti (.01) Honduras (.01) Jamaica (.01) Mexico (.78) Panama (.01) Paraguay (.01) St. Kitts and    Nevis (.01) St. Lucia (.01) St. Vincent and    the Grenadines (.01) Trinidad and    Tobago (.04) Uruguay (.04)	Australia ( 1.46) Austria (.85) Finland (.61) France (6.32) Germany (8.94) Greece (.37) Iceland (.03) Ireland (.20) Italy (4.79) Malta (.01) Monaco (.01) Netherlands (1.58) New Zealand (.24) Norway (.55) Spain (2.24) Sweden (1.22)
33 (.56)	32 (17.68)	11 (6.82)	24 (3.23)	16 (29.42)
Source. U.S. Department of State 1997. Note. Figures in parentheses indicate the percentage of the UN budget that each state is assessed annually (United Nations 1997).

TABLE 2 States Not Party to the Law of the Sea Convention (As of March 1997)
African	Asian	Eastern European	Latin America and Caribbean	Western Europe and Others
Benin (.01) Burkina (.01) Burundi (.01) Cent. African Rep (.01) Chad (.01) Congo (.01) Equatorial Guinea (.01) Eriteria (.01) Ethiopia (.01) Gabon (.01) Lesotho (.01) Liberia (.01) Libya (.21) Madagascar (.01) Malawi (.01) Morocco (.03) Niger (.01) Rwanda (.01) South Africa (.34)a Swaziland (.01)	Afghanistan (.01) Bangladesh (.01) Bhutan (.01) Cambodia (.01) Iran (.60) Israel (.26)a Kazakhstan (.26) Kiribatia Kyrgystan (.04) Laos (.01) Maldives (.01) Nepal (.01) N. Korea (.04)a Qatar (.04) Solomon Islands (.01) Syria (.03) Tajikistan (.03) Thailand (. 13) Turkmenistan (.04) Tuvalua UAE (.19) Vanuatu (.01)	Albania (.01) Armenia (.08) Estonia (.05)a Holy See Hungary (.01) Latvia (.10) Lithuania (.11) Moldova (.11) Poland (.38) Switzerland Ukraine (1.48)	Chile (.08) Colombia (.11) Dominican Rep (.01) Ecuador (.02) El Salvador (.01) Peru (.06) Suriname (.01) Venezuela (.40)	Andorra (.01) Belgium (.99) Canada (3.07) Denmark (.70) Liechtenstein (.01) Luxembourg (.07) Portugal (.24) San Marino (.01) Turkey (.34) United    Kingdom (3.27) United Statesb (25.00)
20 (.75)	22 (1.75)	11 (2.33)	8 (.70)	11 (33.71)
aEstonia, Israel, Kiribati, North Korea. South Africa, and Tuvala are not listed in any region by the United Nations. bTechnically, the United States is not a member of any region, but is considered a part of Western Europe & Others for electoral purposes. Source. U.S. Department of State 1997. Note. Figures in parentheses indicate the percentage of the UN budget that each state is assessed annually (United Nations 1997).

DEPARTMENT OF DEFENSE AND THE NAVY SUPPORT THE TREATY

After the Clinton administration participated in the 1993-94 revision negotiations, both the House and the Senate held hearings on the status of the UNCLOS and the prospects of U.S. ocean mining. The administration attempted to convince Congress that participation in the UNCLOS is overwhelmingly in the U.S. national interest, primarily on the basis of sea power and naval mobility issues. The arguments presented by representatives of the Joint Chiefs of Staff, Department of Defense (DOD) General Counsel, and the Coast Guard, however, stated essentially that the United States would benefit from the possible reduction in excessive maritime claims by coastal states through lessening the need for a shrinking U.S. Navy to engage in challenges of coastal state claims. It should be noted that DOD's long-standing support for the treaty has nothing to do with the 1994 agreement. In fact, DOD has been a consistent treaty proponent since 1982, addressing only the narrow issue of freedom of navigation. In the view of the Joint Chiefs of Staff:

Remaining outside the LOS convention would have the undesirable effect of placing the U.S. Freedom of Navigation (FON) program "center stage" as the primary U.S. instrument for challenging excessive claims. Although the FON program is intended to be neither provocative nor controversial, some states view it as such. According to a 1992 State Department study of illegal claims, the U.S. was then actively protesting illegal claims by more than thirty states at the rate of 30 to 40 protests per year. This year, more than sixty states are making such claims. Of particular concern to DOD are claims asserting that the rights of transit passage (through an international strait) or innocent passage (through territorial waters) are conditioned on prior notification by warships. We are also concerned with claims of "security zones" or illegal baselines which have the effect of delimiting large ocean areas as territorial sea or internal waters. U.S. policy has been to challenge systematically those claims -- both diplomatically and operationally -- through the FON program.

U.S. accession to the Convention should help moderate the proliferation of excessive maritime claims. It is important to note that such claims are not being made by some anti-U.S. bloc, but by virtually all coastal states -- including many of our friends and closest allies. They range from Italy's non-compliant historic bay claims, to Canada's excessive baseline claims. Other examples include Indonesia's restrictive archipelagic sea lanes passage claims and Peru's restriction on aircraft overflight.

This is not to suggest unreasonable unilateral claims which attempt to restrict navigation will cease once the United States becomes party to the LOS convention. Coastal states make excessive claims because they believe such claims to be in their national interest and because they believe they can enforce those claims. With the U.S. as a party. fewer states are likely to view such claims as legitimate or enforceable. With clear support from the U.S., other nations will be more willing to undertake independent or cooperative freedom of navigation operations to challenge such claims. As a party, our diplomatic challenges will clearly carry greater weight. (Adm. Center in U.S. Senate 1994)

This rather weak, one-dimensional argument for acceptance of the treaty pales in significance with the severe problems embedded in Part Xl, including the vulnerability of advanced U.S. deep ocean technology to technology transfer, which carries with it serious strategic consequences, principally in the antisubmarine warfare (ASW) arena.

In addition, DOD expressions of concern over moving the FON program to "center stage" as the primary means of challenging excessive maritime claims are rather odd as the FON program has been "center stage" since President Carter began it in 1979. Indeed, with or without a UNCLOS. a primary peacetime mission of the Navy is, and will continue to be. FON activities. although perhaps on a slightly less frequent basis.

Unbelievably, in 1995, Navy lawyers were said to have briefed civilian military sealift command charter vessel masters that the continuing cutback of navy surface combatants required that unarmed cargo vessels will be ordered to conduct FON challenges. "Not to worry," they told these startled merchant seamen, "a combatant will be over the horizon just in case there is any trouble."

GAINS AND LOSSES FOR THE UNITED STATES FROM UNCLOS

In assessing the gains and losses to the range of U.S. ocean interests, it becomes clear that the United States has very little to gain but much to lose by accession to UNCLOS. This analysis is drawn from Cary Knight's presentation to the American Enterprise Institute.

Deep Seabed Mining. Presumably what we want is politically and economically secure access to deep seabed mineral resources for companies or consortia operating from the United States. What we have now (and under a no-treaty regime) is a legal right to mine nodules from the deep ocean floor. That right stems from two factors -- first, the res nullius character of deep seabed resources, which remain such in spite of General Assembly resolutions on the subject and the UNCLOS negotiations (neither of which has a law-making function), and second, the notion of freedom of the high seas, which gives unrestricted access to ocean space for the purpose of appropriating res nullius objects.

What would we obtain under a law of the sea treaty? The proposed treaty would deny non-discriminatory access and would make it extremely difficult for American and other developed countries' corporations to participate in deep seabed mining.

Navigation What the United States desires is unrestricted (i.e., freedom of the high seas) navigation in exclusive economic zones (EEZ) and the right of submerged transit through straits consisting entirely of territorial waters What we have now is an existing international legal right to engage in in freedoms of navigation more than three nautical miles from the coast.

What would we obtain under a law of the sea treaty? We would have, at best, ambiguous rights of freedom of navigation in EEZ's and submerged transit through straits. Put another way, the difficulty of establishing our legal right to EEZ navigation and submerged straits passage would be no more difficult under an existing customary international law argument than under the convoluted text of the proposed UNCLOS.

The issue then becomes, What will this nation gain or lose in the rest of the treaty? As noted above, we lose substantially on the deep seabed mining issue, and we are probably better off under a no-treaty regime for continental shelf resource exploitation, scientific research, and fisheries purposes. Thus, to suggest that the treaty provisions on navigation are somehow worth trading away a preferred position on other issues is nonsense -- there simply is no enhanced value for navigation in the treaty to trade away. (Knight 4-6)

CRITICAL TECHNOLOGIES AT RISK

Although the 1994 treaty modifications have toned down some of the most direct mandatory technology transfer requirements, the treaty still places at risk some very sensitive, and militarily useful, technology which may readily be misused by the navies of ocean mining states. These include: underwater mapping and bathymetry systems, reflection and refraction seismology, magnetic detection technology, optical imaging, remotely operated vehicles, submersible vehicles, deep salvage technology, active and passive military acoustic systems, classified bathymetric and geophysical data, and undersea robots and manipulators.

The military application of these technologies would provide new anti-submarine warfare (ASW) capabilities, strategic deep-sea salvage abilities, and deep-water bastions for launching sub-surface ballistic missiles (SSBM's). With or without the mandatory technology transfer provisions contained in the UNCLOS, U.S. participation would provide a "legal" conduit and cover to justify the acquisition of state-of-the-art deep ocean devices and technology that have profound national security implications. Ocean mining activities by the Enterprise or third world nations, such as China or India, can provide plausible justification for successfully purchasing technologies that, in the absence of ocean mining, would likely be denied on national security grounds.

In 1995, for instance, the PRC -- a nation self-sufficient in the domestic production of the principal metals derived from manganese nodules -- sought and obtained sophisticated micro-bathymetry equipment from the United States, along with 6,000 meter capable video and side-scan sonar systems. This equipment may easily be misapplied by the PRC to help advance its meager ASW capability in support of its attempts to develop a "Blue Water" navy. This equipment can also be used to help the PRC locate undersea bastions, even within the U.S. EEZ, for their missile launching submarines.

The justification used by the PRC is its pioneer investor status awarded by the UNCLOS PrepCom in 1993. Ostensibly, the equipment will be used for manganese nodule exploration within the Clarion/Clipperton fracture zone. Unfortunately, such surveys should take only several months at sea to accomplish. In part, this is due to the rapid wide-swath capability of the system they purchased and to their choice of minesite locations on, or adjacent to, heavily prospected and claimed nodule fields.

How will the PRC choose to utilize this equipment over the 95 percent of its productive life when it is not involved in nodule exploration? ASW and military submarine mapping are overwhelmingly the most likely applications. An additional factor to consider is the U.S. government's policy of imposing security classifications on many types of microbathymetry data while indiscriminately selling the equipment which is used to generate such data.

UNCLOS MILITARY COMMITMENTS?

In a well-timed contribution to the debate on UNCLOS, the Center for Naval Analysis (CNA) published a strong analysis on the potential for the International Seabed Authority to take on a blue water police/enforcement role in support of treaty provisions. CNA demonstrated that there is ample precedent and existing regulatory flexibility whereby, if states parties cooperate, the ISA may develop a military arm that may not only radically extend the functions and purposes envisioned for it by the United States and its industrialized allies but may one day directly threaten U.S. high seas and economic zone interests as well. "The development of international maritime law, especially the Third UN convention of the Law of the Sea (UNCLOS III), has established a legal environment in which the UN could take on a variety of new low-intensity policing functions in support of international agreements. This is especially important in areas of international straits because attempts to police straits could lead to disputes, perhaps even conflicts. For many nations, this mission area could involve coast guards as well as civilian maritime agencies" (Sands).²

An issue recently raised in Congress, and particularly in the Senate, revolves around the extent to which U.S. participation in a decision of a UN body-in this case the UN Security Council and its votes on UN peacekeeping- might commit the United States to expend funds and provide personnel for an action not approved by Congress.... Some in Congress might want to have similar consultations and reporting requirements instituted as a way of keeping up with the work of the International Seabed Authority and its organs and bodies. (Browne)

Given the ambiguity embedded in the charter. rules. regulations, and scope of the ISA as well as the highly uncertain ability of the United States or its allies to significantly influence events within the new organization, the potential of the ISA becoming a runaway train cannot be dismissed. Some of the most likely areas where the ISA may attempt to apply naval power, according to CNA, are: enforcement of fisheries regulation, measures to protect the marine environment,³ protect sea and air traffic, convoy and escort of selected traffic on the high seas,⁴ and protection of offshore assets such as petroleum platforms, deep-water off-shore port facilities, pipeheads, ocean mining claims and operations.

DANGEROUS PRECEDENTS

The benefits to the United States of UNCLOS participation cannot be denied. They include guidelines on the management of fisheries, the environment, dispute settlement, and marginal improvements in freedom of navigation and overflight. While such issues seem impressive on the surface, their resolution is not a Herculean achievement nor are they critical to the economic health or physical security of the United States. The administration has trumpeted these successes as justification for U.S. accession to UNCLOS, while it has ignored or downplayed serious precedential and strategic issues, engaging in what theologians call adiaphora -- or dwelling on things that are unimportant. A good rhetorician will attempt to sidetrack a discussion away from substantive issues if they do not support his argument and onto adiaphorous issues. The "real" issues presented by accession to UNCLOS have been little discussed since 1982, and they are being sidestepped today in an effort to "sell" the 1994 agreement.

The stakes for which the United States was playing in UNCLOS extended well beyond the relatively parochial interests of tuna fishermen, peacetime sailors, or future ocean miners. What was being decided was nine-fold.

First, the establishment of a far-reaching precedent regarding control over traditionally "non-territorial areas." This precedent not only will dictate future oceanic arrangements, but may well encompass such areas as Antarctica and outer space.

Second, the precedent of bestowing on LDCs effective control over corporate activities beyond their national borders, most graphically seen in the deep seabed negotiations, may snowball beyond oceanic areas and provide the procedural avenues and negotiating cohesiveness necessary to allow them to place stricter international controls over the activities of multinational corporations in general.

Third, it is possible that the voting arrangements being adopted for a new International Seabed Authority, based on a one-nation, one-vote principle, which refuses to recognize the institution of an interest group veto as exists in the UN Security Council, may eventually create a ground swell within the United Nations itself to revamp the existing voting arrangements and eliminate the Security Council.

Fourth, the momentum generated at UNCLOS by the combination of LDC steamroller-like tactics and U.S. negotiating weakness may effect other alterations in institutional arrangements and global power structures, which can only be estimated now

Fifth, the ISA, if established in its present form, would be a major disincentive to investment, which will effectively shut out the United States from access to future sources of strategic minerals and unnecessarily perpetuate U.S. import dependence.

Sixth, the most curious and potentially most threatening aspect of the UN Law of the Sea process is provisional application. The administration does not intend to submit the "agreement" and the 1982 convention for advice and consent for some years, possibly not until mid1998. In the meantime, the United States as a signatory of the "agreement" may become a "provisional member" of the Council, the executive organ of the Seabed Authority (Hoyle 1994). While provisional application is not a new procedure, it is not commonly used. Article 25 of the 1969 Vienna convention on the Law of Treaties recognizes the procedure.

Seventh, the structure, powers, functions, and voting arrangements in the ISA carry the potential for an aggressive enforcement capability developing within UNCLOS. Such a capability may have a military component that may complicate, rather than lend order to ocean activities. In addition, the United States may find itself facing an unanticipated set of future international political and financial obligations as a result.

Eighth, the compulsory dispute settlement features of the treaty are of concern.

The Senate has historically been reluctant to accept broad compulsory dispute settlement language in treaties pending before it. For example after nearly 15 years of off-and-on debate, the Senate, in 1935, rejected U.S. adherence to the 1920 Statute of the Permanent Court of International Justice (PCIJ), the judicial arm of the League of Nations. In 1946, when the Senate gave its advice and consent to U.S. ratification of the Statute of the International Court of Justice (ICJ) and acceptance of the compulsory jurisdiction of the Court (under Article 36, paragraph 2 of the Statute), it added the words "as determined by the United States" (the Connally reservation) to indicate the United States would determine whether a question was within its domestic jurisdiction and thus beyond the jurisdiction of the World Court. (This Article 36 declaration was withdrawn, effective April 1986, by the executive branch.) In May 1960, the Senate considered the four 1958 Law of the Sea conventions and an Optional Protocol providing for the compulsory jurisdiction of the ICJ in disputes over the interpretation or application of the conventions. The Senate rejected the Optional Protocol.

This concern that the United States maintain control over what actions might be taken against it, internationally, was reinforced during the last months of 1994, during congressional consideration of the Uruguay Round GATT Agreements, the World Trade Organization, and its dispute settlement procedures. As a potential complaining party, the United States wanted a strengthened and expedited process; however, as a potential subject of a complaint, the United States wanted to protect its sovereign control over its own enacted laws and interests. (Browne)

Ninth, UNCLOS provides a plausible cover for foreign navies wishing to build a modern anti-submarine warfare or submarine launched ballistic missile firing location capability to acquire the necessary acoustic, bathymetry, and signal processing systems. This may already be happening in the case of the People's Republic of China.

TREATY STATUS -- OVERSTATED CLAIMS

The greatest single accomplishment touted by the administration in seeking Senate ratification of the treaty and the 1994 agreement has been a guaranteed seat on the influential Council of the International Seabed Authority. While it may be premature to assess whether the Council will live up to its potential, there is no truth to assertions that the United States is guaranteed a seat on that body. The overselling of the treaty is most evident on this issue.

U.S. Pattern of Ingratiation and Deception

The Clinton administration, in a desperate attempt to portray the UNCLOS as being in the national interest and worthy of ratification, has compromised away long-term Council representation in exchange for securing a quick seat prior to Senate consideration. This exercise in "political optics" occurred during the ISA debate over Council representation in the Consumers/Importers Chamber.

The meeting of Group A -- the consumers/ importers group -- was attended by Belgium, Cape Verde, China, France, Germany, Japan, Marshall Islands, the Republic of Korea, Russian Federation, United States and United Kingdom. (UN Document SEA/1494, 1)

The United States, United Kingdom, Russian Federation, Japan, Germany, Belgium, and Italy expressed their interest in nomination to the Council. Belgium, Italy, and Germany withdrew their requests on the understanding that the principle of rotation would provide opportunities for their election to the Council at a later date. The group agreed to nominate Japan, Russian Federation, United Kingdom, and United States to the Council, with Russian Federation and United States for election for a two-year term and Japan and the United Kingdom for a four-year term.

The acceptance by the Russian Federation and the United States of two-year terms was on the understanding that the Assembly would affirm that the Council would include the Eastern European State having the largest economy as well as the State having the largest economy on the date of entry into force of the Convention, should those States seek re-election to the Council. The acceptance was also predicated on the understanding that the principle of rotation would apply to Japan and the United Kingdom after four years. (UN Document SEA/ 1473, 6)

Why did the United States and the Russian Federation accept two-year terms instead of vying for the two four-year appointments? The Russians believed that they had struck a deal whereby the other group members agreed to reelect them after the initial two-year term expired and that Japan and the United Kingdom would face a mandatory rotation. The United States, while confirming the Russian view of the two-year term, stated that the re-election conditions and mandatory rotation of the United Kingdom and Japan did not apply to U.S. acceptance of a two-year term.

WESLEY S. SCHOLZ (United States), speaking as coordinator of group A, said that . . . he had assumed that the group had agreed on the nomination of the United States and Russia for two-year terms and the United Kingdom and Japan for four-year terms, assuming that certain conditions had been met.

The United States had agreed to a two-year term, the United Kingdom and Japan had agreed to four year terms, and the Russian Federation had agreed to a two-year term, on the conditions stipulated in the report to the President. (UN Document SEA/1473. 10)

It is remarkable that an administration that is strongly promoting U.S. accession to the UNCLOS would be willing to volunteer the United States to a diminished role within its key decisionmaking body. The failure of the United States to press for re-election guarantees-as the Russians have-may readily be construed as the act of a desperate delegation attempting to project the appearance of influence at any price in order to deceive the Senate into ratification of the UNCLOS.

The Russian representative, recognizing the potential for a serious North/South rift, stated that "the challenge of agreeing on equitable geographical distribution was only part of the problem facing the Assembly. As in the negotiation period for the convention, a majority had agreed on a position that was not workable. Realization of that fact had led to negotiation of the agreement on the implementation of Part XI. The agreement had been hastily drafted, and compromise had been reached only through some sacrifice. The Assembly was now being challenged to put into practice both the convention and the agreement. The Assembly should not pit the South against the North, as there were a number of States actively preparing to exploit the resources of the seabed" (UN Document SEA/1469, 6).

Unfortunately, the potential for polarization among ISA members is high and will likely be exacerbated by future financing problems, lack of significant achievements, resistance by some member states to back radical initiatives, slow development of seabed resources, and a lack of hoped for revenue sharing. These issues need to be fully explored during the future ratification debate.

BOTTOM LINE

While UNCLOS has effectively codified many aspects of traditional law and has successfully incorporated several modern issues, such as environment, fisheries, and coastal zone management, these can be regarded as "nice to have" accomplishments but are by no means essential to the political, economic, or military security of the United States. In fact, one of the principal reasons for the establishment of UNCLOS III was to resolve U.S. conflicts with several Latin American states over territorial sea claims in the Pacific Ocean and the repeated seizure of U.S. tuna boats and their crews. After more than ten years of UNCLOS III, ten years of post-UNCLOS III ratification debate, and two more years of negotiation of the agreement, Nicaragua, Peru, Ecuador, and El Salvador still claim 200-mile territorial seas and refuse to become parties to the convention.

With regard to Nicaragua and Peru, their abstention could be due to their claim to the 200-mile territorial sea, which is not in conformity with the Convention.

The reasons for the absence or non-participation of these states are not clear. Only Turkey explained that it had some difficulties with certain provisions of the Convention. Ecuador and El Salvador may have chosen not to vote because of their claim to the 200-mile territorial sea. (Hayashi, 5-6)

In fact, the Turkish problems with the UNCLOS may eventually lead to a major shooting war between Turkey and Greece. In July 1995, the Turkish Parliament issued a strong warning to Greece not to extend its territorial sea to twelve nautical miles as allowed in the convention. The Parliament, concerned that an extension of Greek territorial sea limits to twelve nautical miles would make 70 percent of the Aegean Sea a "Greek lake," empowered the government to take all measures, including military actions if necessary, to protect the vital interests of Turkey. "The balance in the Aegean was established with the Lausanne Peace Treaty of 1923 at which time the territorial waters of both countries were at three miles" (Jane's 1995, 11). On the other hand, the regulatory, political, technological, economic, and possibly military concessions embedded in the treaty represent a set of potential threats and traps that the United States should not walk blithely into.

Treaty supporters within the United States now include a number of former treaty opponents who appear to have resigned themselves to a "this is the best deal we are likely to achieve" philosophy after the Clinton administration's failure to press hard for real change during the 1993-94 renegotiation. To cite the administration's weak negotiating skill or its failures to argue on behalf of basic U.S. national security interests in international forums makes a poor rationale for ratification of a treaty.

There is a common misperception that existing national security export control mechanisms will act as a safety net to ensure that the treaty will not serve as a conduit for militarily critical technology to be exported to potential adversaries. Unfortunately, the "stovepiped" nature of many government policy actions masks the fact that the Clinton administration has virtually eviscerated the export control process within the U.S. government and has dismantled the international regulatory mechanism as well (Leitner, 1995). There is no longer a reliable safety net to prevent foreign military or intelligence services from using the treaty as a cover to acquire highly strategic state-of-the-art technology that may be used to enhance power projection or regional destabilization activities.

CONTRACTING OUT U.S. FOREIGN POLICY

If there is one overarching characterization that can describe U.S. participation in UNCLOS, it is taking a giant step forward in the continuing delegation of U.S. foreign policy to the United Nations. Recent milestones along this path include U.S. initiatives to multinationalize peacekeeping operations such as that in Bosnia, "humanitarian relief" operations as in Somalia and Rwanda, and actual belligerent military operations like the Gulf war.

Ironically, this "contracting out" of U.S. foreign policy is quietly taking place against the backdrop of a growing domestic debate on whether to repeal the War Powers Act, which places strict limits on the president's ability to use military force in support of foreign policy objectives. Would the lifting of War Powers Act restrictions lead the president to commit U.S. forces to ever more complicated and dangerous UN-sponsored military operations? Would the potential military commitments hidden in UNCLOS have a greater likelihood of developing? Will the United States eventually find itself in the position of "world policeman," being assigned roles and missions dictated by others?

Many of those in favor of repealing the War Powers Act argue that meddlesome congressional oversight and second-guessing of presidential prerogatives are burdensome constraints. Imagine the second-guessing and interest group politics imposed by 170 nations and their bloated bureaucracy of international civil servants as the "contracting out" of U.S. foreign policy continues.

The International Seabed Authority and UNCLOS represent the surrender, with little or no compensation, of a variety of tangible U.S. security and sovereignty equities over a geographic area encompassing 70 percent of the earth's surface. The administration is attempting to bind this nation to a treaty and a bureaucratic organization whose basic operating principles are inimical to U.S. interests and that, to date, is officially recognized only by third world and landlocked states.

The United States has once again approached a negotiation by "giving or offering a concrete, positive, material advantage in exchange for hypothetical concession of a negative activity; a tangible asset is sacrificed for a promise not to make trouble in the future; something measurable and manifest is traded for the promise of something unmeasurable and unverifiable" (Revel 1983, 249).

This negotiating principle is part of a wider technique: prior concession. It consists of ceding in advance, even before negotiations begin, what should be the subject of the negotiations and which the West should propose at the end of the talks, not at the start. and then only in exchange for a carefully weighed and at least equivalent counterconcession. (Revel 1983, 249)

It is disturbing to note the extremes to which the Clinton administration may be willing to go in order to secure ratification of this treaty. A persistent rumor has been circulating among Law of the Sea watchers for the past two years that significant political pressure was applied to the Lockheed Corporation to force it to silence its opposition to the treaty and the 1994 agreement. As the story goes, at a 1994 interagency meeting where irritation was expressed over vocal treaty opponents, a naval officer volunteered to "take care" of Lockheed. At that time, Lockheed was at a very delicate stage of its controversial merger with Martin-Marietta and extremely sensitive to external factors that could raise government objections to the merger. Reportedly, Lockheed personnel, summoned by senior management, were ordered to cease public criticism of the treaty. Congressional review could uncover the truth behind the rumor and expose the parties involved.

As stated earlier, of the many precedents embodied in the existence of the ISA, the creation of an international bureaucracy with powers to tax, regulate, and enforce its will are perhaps the most dramatic and, in the long term, the most dangerous. The granting of what are essentially sovereign powers is unprecedented and unfortunately fits within a larger pattern of UN behavior-that being, to free itself from the political domination of the five permanent members of the Security Council as well as to insulate itself from the uncertainties and political limitations accompanying the traditional state-sponsored financing of UN operations.

Secretary General Boutros-Boutros Ghali recently proposed to establish a "world tax" on airline tickets and currency exchanges as an independent means of financing the UN. "Faced with $2.3 billion in arrears from member nations that failed to pay their assessments -- including $1.2 billion owed by the United States -- UN officials and others have long sought an independent means to raise money for the organization's annual budget of roughly $3 billion" (Barber 1996). Disclosure of this plan provoked an immediate negative response in the U.S. Senate when majority leader Bob Dole stated that, "the United Nations continues its out-of-control pursuit of power" and along with colleagues called for an immediate investigation (Barber 1996).

Unfortunately, the Law of the Sea Treaty goes far beyond the Ghali plan and may indeed be viewed as a harbinger of future UN efforts to spin-off or reformulate its activities in such a way as to insulate itself from, and possibly become ascendant to, the sovereign character of nation-states. Unless the United States is willing to insist on further renegotiation of the treaty to protect these and other vital interests, the Senate will have little alternative other than rejection and refusal to ratify. Rejection by the Senate appears to be the only action capable of serving as the catalyst to bring all parties back to the table.

NOTES

1. Of the seventeen countries abstaining, all but Belgium, Italy, Luxembourg, Spain, the Federal Republic of Germany, and the United Kingdom signed the treaty in December 1982.

2. For example, the U.S. Coast Guard (USCG) enforces U.S. federal law on the high seas, interdicts smugglers moving drugs and illegal migrants, enforces fisheries regulations and U S. law, and protects U.S. interests in the exclusive economic zone claimed by the United States. Further. the USCG has cutters involved in detection, monitoring interdiction and operational support of third-country drug operations, and conducts joint counter narcotics training and patrols with several countries. The USCG has agreements with Japan and Hong Kong and experience in sea lines of communication (SLOC) through cooperation with the U.S. Navy.

3. The Antarctic Treaty internationalized and demilitarized the Antarctic continent and provided for its cooperative exploration and future use. Several countries have claimed sovereignty over areas of Antarctica, claims that the United States and the former Soviet Union did not recognize. Rivalry backed by the threat or use of military force for control of exploitable economic resources is still only a theoretical possibility, and one that still looms small given past scientific cooperation and the continent's isolation. Resource exploitation could in the near term raise environmental protection concerns, about which naval forces operating under a UN aegis could be called on to respond because of the Antarctic Treaty and the continent's location and isolation. For a text of the Antarctic Treaty, see United States (1982).

4. With the approval of the United States regarding the security plan (U.S. approval is required for fuel and byproducts of U.S. origin, and U.S. warships, planes, and military intelligence satellites monitored the voyage), the first of forty-five shipments over the next seven years left France in November 1992. The ship carrying the plutonium casks, Aka~suki Maru, was escorted by the Japanese Maritime Safety Agency's new 6,500-ton escort ship, Slu'kish~'ma. Singapore, Malaysia, and Indonesia have expressed concerns about an unspecified "mishap" involving the shipments, arguing that the fissile material should not be transported through busy waterways or near densely populated areas. To date, Argentina, Brazil, Chile, Hong Kong, Indonesia, Malaysia, the Philippines, Singapore, South Africa, Uruguay, and, in a way that has caught the attention of the Japanese media, the Republic of Nauru have told Japan to keep the shipments out of their territorial waters. The United States has ruled out its passage through the Panama Canal. Others, such as the members of the South Pacific Forum, have urged that the shipments be stopped. See also Associated Press, Sanger, and Offley.

REFERENCES

Associated Press. 1992. "Worries About Plutonium Ship." 21 September.

Barber, Ben. "Dole Bill Threatens Funding for UN." Washington Times. 18 January, 1.

Browne, Marjorie Ann. 1995. The Law of the Sea Convention and U.S. Policy. Congressional Research Service. IB95010. January.

----- 1983. The Law of the Sea Conference: A U.S. Perspective. Congressional Research Service. IB81153. March.

Hayashi, Moritaka. 1995. "Prospects for a Universal Acceptance of the Part XI Agreement." Remarks to Symposium on Implementing the United Nations Convention on the Law of the Sea. Georgetown University Law School. 27 January, 5 6.

Hoyle, Brian J. 1994. Testimony Before the U. S. House of Representatives, Committee on Merchant Marine and Fisheries, Subcommittee on Oceanography, Gulf of Mexico and the Outer Continental Shelf. 26 April.

Justus, John R. 1995. Ocean Mining. Congressional Research Service. IB74024. August.

Kissinger, Henry. 1976. "The Law of the Sea Treaty: A Test of International Cooperation." Address before the Foreign Policy Association, UN Association, et. al. 8 April. Department of State Bulletin 1922. 26 April, 540-41.

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© 1998 World Affairs

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