1 This article is a sequel to Stevenson, & Oxman, , The Preparations for the Law of the Sea Conference, 68 AJIL 1 (1974)CrossRefGoogle Scholar; The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 69 AJIL 1 (1975);—The 1975 Geneva Session, 69 AJIL 763 (1975); and Oxman, , The Third United Nations Conference on the Law of the Sea: The 1976 New York Session, 71 AJIL 247 (1977)CrossRefGoogle Scholar;—The 1977 New York Sessions, 72 AJIL 57 (1978);—The Seventh Session (1978), 73 AJIL 1 (1979).

2 UN Doc. A/CONF.62/WP.10/Rev.1 (April 28, 1979), reprinted in 18 ILM 686 (1979). For discussions of the regime of straits under the revised ICNT, see the articles by W. Michael Reisman and John Norton Moore, infra at pp. 48 and 77, respectively. Professor Moore’s analysis is consistent with the author’s recollections and previous articles, and should put the matter to rest.

3 The Official Records of the conference (hereinafter cited as Off. Rec.) for the eighth session were not available at the time of preparation of this article. Reports to the Plenary of the Conference, UN DOC. A/CONF.62/91 (Sept. 19, 1979) and Corr.1 (Oct. 15, 1979), includes all of the following: Report of the General Committee as approved by the Conference, UN Doc. A/CONF.62/88 (Aug. 24, 1979) at 3; Report to the Plenary by the Chairman of the First Committee, UN Doc. A/CONF.62/L.43 (Aug. 29, 1979) at 8; Report on Negotiations held by the Chairman and the Coordinators of the Working Group of 21, UN Doc. A/CONF.62/C.1/L.26 (Aug. 21, 1979) at 16 [hereinafter cited as WG21 report] (the chairman and coordinators are respectively the chairman of the First Committee and the chairmen of Negotiating Groups 1 and 2; the Report of the Chairman of the Group of Legal Experts on the Settlement of Disputes Relating to Part XI is included in App. B at 64); Report to the Plenary Conference by the Chairman of the Second Committee, UN Doc. A/CONF.62/L.42 (Aug. 24, 1979) at 70, including a summary of his report on Negotiating Group 6, Conf. Doc. NG6/19 (Aug. 22, 1979); Report of the Chairman of Negotiating Group 7, Conf. Doc. NG7/45 (Aug. 22, 1979) at 116; Report by the Chairman of the Third Committee, UN Doc. A/CONF. 62/L.41 (Aug. 23, 1979) at 75; Report of the President of the Conference on the Work of the Informal Plenary on Final Clauses, UN Doc. A/CONF.62/L.44 (Aug. 27, 1979) at 125; Report by the Chairman of the Group of Legal Experts on Final Clauses, Conf. Doc. FC/16 (Aug. 23, 1979) at 121; Report of the President of the Conference on the Work of the Informal Plenary on the Settlement of Disputes, UN Doc. A/CONF. 62/L.45 (Aug. 29, 1979); Report to the Plenary by the Chairman of the Drafting Committee, UN Doc. A/CONF.62/L.40 (Aug. 22, 1979) at 81. The documents of the eighth session are reproduced in English in Dokumente der dritten Seerechtskonferenz der Vereinten Nationen—Genfer Session 1979 (ed. Platzöder, Munich: Stiftung Wissenschaft und Politik, June 1979, 3 vols., SWP-M2128/I-III),—New Yorker Session 1979 (Oct. 1979, 2 vols., SWP-M2291/I-II).

4 Report of the General Committee, note 3 supra, at 3.

5 UN Doc. A/CONF.62/62 (April 13, 1978), 10 Off. Rec. 6 (1978); see Oxman, The Seventh Session, note 1 supra, at 3–5.

6 Text of para. 11(5) of UN Doc. A/CONF.62/62, note 5 supra, reproduced in 73 AJIL 5 n.14 (1979).

7 UN Doc. A/CONF.62/WP.10 (July 15, 1977) and Add.1 (July 22, 1977), 8 Off. Rec. 1 (1978), reprinted in 16 ILM 1108 (1977).

8 UN Doc. A/CONF.62/62, note 5 supra, pt. II, paras. 10 and 11.

9 UN Doc. A/CONF.62/RCNG/1 and 2, 10 Off. Rec. 13, 126 (1978); see Oxman, , The Seventh Session, note 1 supra, 73 AJIL 1 (1979)Google Scholar passim.

10 ICNT/Rev.1, Arts. 62, 69, and 70. Negotiating Group 4 Reports at 10 Off. Rec. 88-95, 166-67 are discussed by the author in 73 AJIL at pp. 16–18.

11 ICNT/Rev.1, Arts. 296(1) and (3) and 297. Negotiating Group 5 Reports at 10 Off. Rec, 117–23, 168–69 are discussed by the author in 73 AJIL at pp. 18–19.

12 ICNT/Rev.1, Art. 66. Second Committee Report, para. 13, 10 Off. Rec. 85–86.

13 ICNT/Rev.1, Arts. 1(5), 194(5), 210(5), 211(1), (3), (4) and (7), 212(1), 220(2), (5) and (6), 221, 226, 230, and 235. The last of these was prepared at the eighth session. Third Committee Reports on part XII at 10 Off. Rec. 96–115, 173–97 are discussed by the author in 73 AJIL at pp. 24–27.

14 In his report at the end of the eighth session, the chairman of the Third Committee repeats the conclusion that “the substantive negotiations on Part XII (Protection and Preservation of the Marine Environment) and Part XIV (Development and Transfer of Marine Technology) could be considered as completed.” UN Doc. A/CONF.62/L.41, note 3 supra. The use of the term “substantive negotiations” presumably reflects the fact that these texts will need to be harmonized with relevant First Committee and Second Committee texts and perhaps redrafted in some respects by the Drafting Committee, which may not undertake substantive negotiations. Rules of Procedure, rule 53, UN Doc. A/CONF.62/30/Rev.2.

15 ICNT/Rev.1, Art. 15. See Negotiating Group 7 Report at 10 Off. Rec. 124.

16 Drafting Committee Informal Paper l/Rev.1/Add.2 (Aug. 31, 1979); see Report by the Chairman of the Drafting Committee, UN Doc. A/CONF.62/L.39 (June 15, 1979), 10 Off. Rec. 199, and ICNT/Rev.1 (explanatory memorandum).

17 ICNT/Rev.1, Art. 76.

18 Id., Art. 82(2).

19 WG21 report, note 3 supra.

20 Note 3 supra.

21 Ibid.

22 ICNT/Rev.1, Art. 25, pursuant to a Belgian proposal designed to deal with artillery exercises of the coastal state, added protection for the safety of ships as a permissible basis for costal state suspension of innocent passage. The vagueness of this language proved objectionable. Previous texts provided for coastal state suspension only where “essential for the protection of its security,” based on the rule in the Convention on the Territorial Sea and the Contiguous Zone, 1958, Art. 16, para. 3, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, reprinted in 52 ATIL 834 (1958). As a result of consultations, the addition in the ICNT/Rev.1 would be replaced by adding the words “including weapons exercises” of the coastal state after the reference to “its security.”

23 The main purposes of the amendment are to avoid a possible misreading of the text by making clear that Article 65 was never intended to permit less restrictive limitation or regulation of the exploitation of marine mammals than would be required by the convention if there were no such article, and to direct particular attention to the need for appropriate organizational arrangements for the protection of cetaceans. Article 65 appears in Part V, “Exclusive Economic Zone,” and is incorporated by reference by Article 120 into Part VII, Section 2, “Management and Conservation of the Living Resources of the High Seas.” An examination of the amendment, superimposed on the ICNT text of Article 65 by italicizing the additions and adding square brackets around deletions, might prove illuminating in this context:

The main question raised relates to the words, “In this connexion.”

It should also be noted that the chairman of the Third Committee reported a consensus on the understanding that the term “marine environment” includes marine life. 10 Off. Rec. 97 (1978). ICNT/Rev.1, Article 192 provides, “States have the obligation to protect and preserve the marine environment.”

24 Note 3 supra. The amended text of Articles 74, paragraph 3 and 83, paragraph 3 would read:

25 Annex II, Art. 5, para. 1(e) imposes the same obligation to transfer technology to a developing country applying for a mining contract as the obligation to transfer technology to the Enterprise.

26 U.S. Delegation Report, Resumed Eighth Session of the Third United Nations Conference on the Law of the Sea, New York, July 16–August 24, 1979 (unpublished). Other delegations, of course, might add some items to this list of deep seabed mining issues. The French delegation, for example, is unhappy with the text of the so-called antimonopoly clause (Annex I, Art. 6, para. 3(d)). Nevertheless, the U.S. delegation’s list is indicative of the nature and extent of the remaining problems.

27 Note 3 supra.

28 It deals with Drafting Committee Informal Paper 2/Add.1.

29 See Letter of April 25, 1979 prepared by Group of 77’s Group of Legal Experts on Legislation, UN Doc. A/CONF.62/77; letter of Aug. 23, 1979 from Chairman of Group of 77, UN Doc. A/CONF.62/89; statement by the Vice Chairman of the U.S. delegation in response, UN Doc. A/CONF.62/93 (Oct. 1, 1979); Oxman, The Seventh Session, note 1 supra, at 30–38.

The Ministers of Foreign Affairs of the states members of the Group of 77, meeting in New York a month after the end of the 8th session, adopted on September 29 a resolution in which they:

• 1.

  1. Declare that:

  • (a)

    (a) Any unilateral measures, legislation or agreement restricted to a limited number of States on sea-bed mining are unlawful and violate well-established and imperative rules of international law;

  • (b)

    (b) Such unilateral acts will not be recognized by the international community, and that, these acts, being unlawful, will entail international responsibility on the part of States who commit them, and an investor will not have legal security for his investments in activities in pursuance of such acts;

• 2.

  2. Urge all States to refrain from taking any unilateral action on sea-bed mining and appeals to them to bring the Third United Nations Conference on the Law of the Sea to a successful and early conclusion.

UN Docs. A/34/611 (Oct. 23, 1979), A/CONF.62/94 (Oct. 19, 1979).

On December 14, 1979, the U.S. Senate passed, and sent to the House of Representatives, a bill regarding deep seabed mining that would not, however, allow commercial recovery to commence before 1982. S. 493 (amendment No. 540), 96th Cong., 1st Sess. (1979), 125 Cong. Rec. S18554 (1979). In the 95th Congress, deep seabed mining legislation was passed by the House of Representatives but was not voted upon by the Senate before adjournment. H.R. 3350, 95th Cong., 2d Sess. (1978), 124 Cong. Rec. H7341, H7382 (1978).

30 See N.Y. Times, Aug. 10, 1979, §A, at 1. Responses of the U.S. Government to inquiries, based on guidance made available to the author, were generally as follows:

31 See Declarations of Aug. 18, 1979 by the Foreign Ministers of Colombia, Ecuador, Chile and Peru, UN Doc. A/CONF.62/85 (Aug. 22, 1979).

32 Chaired by Mexico, the Group of Coastal States includes most of the delegations of major coastal states except, in general, those that are major maritime powers or members of the Group of Landlocked and Geographically Disadvantaged States. As with similar groups, the criteria for membership are flexible, participation in meetings varies, and no attempt is made to discipline members.

33 UN Docs. A/CONF.62/90, A/CONF.62/SIU18 (provisional) (Aug. 30, 1979), at 3.

34 U N Docs. A/CONF.62/92 (Oct. 1, 1979), A/CONF.62/SR.118 (provisional) (Aug. 30, 1979), at 4.

35 UN Doc. A/CONF.62/SR.118 (provisional) (Aug. 30, 1979), at 5–8.

36 Id. at 6–7.

37 Ibid.

38 Note 3 supra.

39 WG21 report, note 3 supra, App. A, text of Ann. II, Art. 12.

40 The production charge would be 2% per annum, but would rise to 4% in any year in the second period of commercial production in which the return on investment is at least 15%. The contractor would pay either the production charge or an annual fixed fee of $1 million, whichever is greater.

41 WG21 report, note 3 supra, at 22 (added by UN Doc. A/CONF.62/C.1/L.26/Corr.1 (Aug. 22, 1979)).

42 WG21 report, note 3 supra, App. A, amendments to Ann. III, Art. 10.

43 Under ICNT/Rev.1, Annex III, Article 5, the Governing Board of the Enterprise would consist of “15 qualified members” elected by the Assembly of the Authority “based on the principle of equitable geographical representation.”

44 WG21 report, note 3 supra, App. A, Art. 157.

45 Id., Art. 158.

46 Id., Art. 160.

47 Id., amendment to Ann. V, Art. 36.

48 ICNT/Rev.1, Art. 160(2)(f), (j), and (n) and Art. 162(2)(n) and (p).

49 Given the technical and legally binding character of the rules, regulations, and procedures, the author would note his long-held preference for their submission by the Council to governments, coupled with a time limit for disapproval by a specified number of parties, as in the ICAO and 1973 IMCO Conventions, rather than (or perhaps after) submission to the Assembly. An approach such as that taken in the 1973 Marine Pollution Convention, which provides special protection for interested states in the entry into force procedure for technical regulatory changes, could be a basis for helpful protections to supplement those provided by the composition and voting rules of the Council. Convention on International Civil Aviation, 1944, 61 Stat. 1180, TIAS No. 1591, 3 Bevans 944, 15 UNTS 295; International Convention for the Prevention of Pollution from Ships, 1973, IMCO Doc. MP/CONF.WP.35, reprinted in 12 ILM 1319 (1973).

50 WG21 report, note 3 supra, App. A, amendments to Art. 161.

51 Art. 162(2) (j).

52 WG21 report, note 3 supra, App. A, amendment to Art. 162(2) (j).

53 Of course, the substantive provisions regarding approval of contracts that have already been discussed, including Annex II, Article 6, are also relevant to this problem, as are important dispute settlement questions such as the nature of the tribunal and the scope of review.

54 While the effect of an existing proposal in Articles 161(1)(a) and (b) of the ICNT/Rev.1 that amounts to a guaranteed seat for the Soviet Union and a Soviet ally among the largest seabed mining countries and consumers is mainly psychological, and by no means unflattering to Western technology, the provision is politically unpopular and might become an issue.

55 While the problem of protecting the confidentiality of commercial information is dealt with in the same provision as problems of misconduct generally, its purpose is at least as much the direct protection of state and private property as protection of the Authority or its internal administration. Dismissal may be an inadequate deterrent, for example, when the employee is planning to leave or has left. The provision does not deal with the allocation of criminal or civil jurisdiction among the states concerned. Short of universal jurisdiction, jurisdiction to try or hear a case against the staff member for unlawful disclosure might exist in the state of his nationality, in the state affected by the violation, or in the state in which the violation occurred. This jurisdictional approach is consistent with that of the ICNT/Rev.1 to questions such as pirate broadcasting and pollution. See Arts. 109, 142, 216, 217, 218, 220, and 221. A violation of the confidentiality requirements of the convention by a staff member might not be an act performed in the exercise of his functions for the purpose of immunity from legal process under Article 181. Even if it were such an act, the substance of the new provision in the WG21 report would seem to preclude a claim of immunity or require its waiver in appropriate cases. Moreover, the WG21 report’s amendment to Annex II, Article 21 makes clear that the Authority would be liable for violation of the confidentiality requirement by the Secretary–General and the staff.

56 ICNT/Rev.1, Art. 188. This clarification might perhaps include harmonization with the special provision on arbitration regarding financial terms of a contract found in Annex II, Article 12, paragraph 15. It should also be noted that Annex II, Article 5, paragraph 2 contains elaborate conciliation and arbitration provisions regarding the miner’s contractual undertaking to make technology available to the Enterprise “on fair and reasonable commercial terms and conditions.” The specificity of the contract, coupled with its required guarantee of “security of tenure” (Art. 156, para. 6 and Ann. II, Art. 15), supply the legal foundation for arbitral protection of contractual expectations against “public law” intrusions. See arbitral award between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and Libya, reprinted in 17 ILM 3 (1978) and discussed generally infra at p. 134.

57 See ICNT/Rev.1, Art. 287.

58 WG21 report, note 3 supra, App. A, Art. 188. The underlying concept is that the selection by the parties of 3 judges from a larger number approximates, or at least accommodates, the views of those favoring arbitration. Submission of the dispute to the special chamber of the Law of the Sea Tribunal would require the assent of both parties, while submission to the ad hoc chamber of the Seabed Disputes Chamber would be mandatory if any party requests it. Only the former could include nationals of the parties. Compare ICNT/Rev.1, Ann. V, Arts. 15 and 17 with the proposed Ann. V, Art. 36 bis in the WG21 report, App. A.

59 ICNT/Rev.1, Art. 190.

60 Art. 59, Statute of the ICJ.

61 This would be true whether or not res judicata and collateral estoppel are technically available. The technical point would be one of offensive use of collateral estoppel by a stranger to the earlier case against the party defeated in the earlier case. This practice recently received the qualified approval of the Supreme Court of the United States, despite the absence of “mutuality” (i.e., the party asserting collateral estoppel would not have been bound or estopped by the earlier judgment). Parklane Hosiery Co. v. Shore, 99 S.Ct. 645 (1979). As to the offensive use of collateral estoppel on a question of law, it might be observed that the jurisprudence of common law jurisdictions would tend to be colored by the doctrine of stare decisis, while the jurisprudence of many administrative courts in civil law jurisdictions (among others) in analogous situations would tend to be colored by their power to address questions of validity of regulations directly.

62 These are discussed by the author in 73 AJIL (1979) at pp. 19–22.

63 Conf. Doc. NG6/1 (1978), reproduced in part in 73 AJIL 19 n.59.

64 C.2/Informal Meeting/14 (1978), reproduced in part in 73 AJIL 20 n.61.

65 Conf. Doc. NG6/2 (1978).

66 So stylized was the relationship between the opposing sides that for a considerable period, to symbolize its emergence from the center of the table rather than from any delegation, and perhaps to suggest a customary affection for tea among the original chefs, the proposal was called the “biscuit.”

67 ICNT/Rev.1, Art. 76, para. 3 and note 1.

68 Emphasis added.

69 UN Doc. A/CONF.62/C.2/L.98 and Adds. 1 & 2; R. Platzöder, note 3 supra, 3 Genfer Session 1978, at 871 (Add. 1 maps not reproduced).

70 Objections to this approach by some broad-margin states seem to contradict the underlying interpretation of the article as a whole. It may be desirable, but it should be unnecessary to insist on, the introduction of a term such as “oceanic crust” for the first time and solely in connection with ridges. Conversely, insistence on exclusion of such a term is difficult to understand. Language similar to that used by the chairman of the committee in his footnote might be suitable. Nevertheless, legal and geological experts were drawn into complex discussions and drafting exercises about ridges of continental formation, plateaux, oceanic crust, and so on. See Report of Negotiating Group 6, note 3 supra. To this observer, at times it seemed a final, sentimental replay of discussions regarding the nature of the continental margin that dominated earlier stages of the conference.

71 The text of the informal Canadian paper on the organization and functions of the commission appears in 73 AJIL 20 n.62. Informal consultations were held on the basis of this paper; agreement seems imminent.

72 It might be noted that the “rule of thumb” regarding the location of the foot of the continental slope (the point of maximum change in gradient at its base) applies only “in the absence of evidence to the contrary.” More important, as noted before, the Irish formula deals with the location of the outer edge of the continental margin. It provides no justification for placing that outer edge in an area that is beyond the continental margin itself, that is, beyond the shelf, slope, and rise. These and other factors would presumably be considered by the commission in reviewing the submissions of the coastal state.

73 See Report of Negotiating Group 6, note 3 supra, item (d).

74 Bracketed words added.

75 The conference has become increasingly sensitive to permitting generalized extensions of the continental shelf to vast distances from the coast. It seems (with exceptions, of course) to feel occasional remorse about the extent of the limits already reached. In particular, proposals that would breach both cut-offs (350 nautical miles from the coast or 100 nautical miles seaward of the 2500-meter isobath) seem to arouse concern.

76 See Stevenson & Oxman, The 1975 Geneva Session, note 1 supra, at p. 782 & n.43; Oxman, The 1977 New York Session, note 1 supra, at pp. 80–81.

77 ICNT/Rev.1, Art. 82, para. 2.

78 ICNT/Rev.1, Art. 82, para. 3.

79 Before leaving the seabeds, it might be noted that in case the conference is in need of additional complexity and controversy, it can find it in new excursions into the arcane interstices of the law of salvage. Two proposals have been made that seem reasonably likely, once their texts are carefully scrutinized, to drive museum directors, anthropologists, archeologists, collectors, shipowners, ship charterers, cargo owners, artists, and adventurers to distraction. Their description in the Report of the Second Committee, note 3 supra, at 73, is repeated here without further comment:

80 These negotiations were discussed by the author in 72 AJIL (1978), at pp. 75–78.

81 See 73 AJIL at pp. 27–30.

82 Note 3 supra.

83 Art. 246. The other grounds for discretionary refusal of consent under paragraph 4 are:

• (1)

  (1) The project involves the use of explosives or the introduction of harmful substances into the marine environment.

• (2)

  (2) Information submitted to the coastal state regarding the nature and objectives of the project is “inaccurate.” (This is the basic control over the bona fides of the project description.)

• (3)

  (3) The researching state has outstanding obligations to the coastal state from a prior research project. (The obligation is, of course, not “outstanding” for these purposes if by its nature it cannot be fulfilled until after completion of the research cruise [e.g., preparation of reports] and good faith efforts are being made for its timely fulfillment.)

• (4)

  (4) The project involves drilling into the continental shelf. (This simply repeats the requirement of consent for drilling in Article 81.)

• (5)

  (5) The project involves the construction, operation, or use of artificial islands, installations, and structures as referred to in Articles 60 and 80. (This cross-references the requirements for consent under those articles.)

84 ICNT/Rev. 1, Article 248 describes in detail the information to be included.

85 Id., Art. 249.

86 Convention on the Continental Shelf, 1958, Art. 5, para. 8, 15 UST 471, TIAS No. 5578, 499 UNTS 311, reprinted in 52 AJIL 858 (1958).

87 See 72 AJIL (1978), at pp. 76–77.

88 Ibid.

89 Report of the Chairman of the Third Committee, note 3 supra, Annex, Art. 246 bis.

90 See 73 AJIL (1979), at p. 22.

91 ICNT/Rev.1, Art. 78, para. 2.

92 Note 86 supra.

93 See note 83 supra.

94 ICNT/Rev.1, Annex II, Article 2 refers to the “broad areas in which prospecting is to take place.”

95 Compare Arts. 2 and 3 of Ann. II.

96 This is generally the nature of the distinction made in Annex II and the national mining systems on which it is based.

97 Report of the Chairman of the Third Committee, note 3 supra, Annex, Art. 246 bis.

98 See ICNT/Rev.1, Art. 249, paras. 1(e) and 2.

99 Report of the Chairman of the Third Committee, note 3 supra, Annex, Art. 249. Neither the ICNT nor the new text alters the obligations under sections 1 and 2 of part XIII, including Article 244.

100 Report of the Chairman of the Third Committee, note 3 supra, Annex, Art. 264.

101 Id., Art. 253.

102 Id., Art. 255.

103 Id., Art. 242.

104 The relevant ICNT/Rev.1 provisions, Article 74, paragraph 1 (economic zone) and Article 83, paragraph 1 (continental shelf), use the same language. Different language is used in ICNT/Rev.1, Article 15 regarding delimitation of the territorial sea: this provision, now agreed, is substantially the same as the provision in Article 12 of the Convention on the Territorial Sea and the Contiguous Zone, note 22 supra. While the ICNT retains the concept of the contiguous zone in Article 33, it does not contain a delimitation provision that mentions the contiguous zone. Compare Art. 24, Convention on the Territorial Sea and the Contiguous Zone.

105 ICNT/Rev.1, Arts. 57 and 76, respectively.

106 They apparently seek to place the burden of proof on the state opposing the application of equidistance. While they rely heavily on Article 6 of the 1958 Convention on the Continental Shelf (note 86 supra) in this regard, it is doubtful that that provision has this effect, since equidistance applies only “[i]n the absence of agreement, and unless another boundary line is justified by special circumstances.”

107 North Sea Continental Shelf cases, [1969] ICJ Rep 3.

108 Id., Judgment, para. 101, at 54.

109 Note’3 supra.

110 The chairman of Negotiating Group 7 also refers to the fact that the idea of the “equality of states” has been introduced in private discussion. Proceeding on the assumption that this idea is suggested in connection with the existing ICNT text on delimitation, several questions were nevertheless posed regarding the meaning of such a reference. Clearly, it cannot mean that every state receives an economic zone or continental shelf that is equal in size or value to the economic zone or continental shelf of its neighbors. Coming, as it does, from equidistance advocates, it cannot mean that delimitation is to be effected on a basis other than the geography of the area in question. Sovereign equality of states and equidistance have nothing to do with each other. It would therefore seem, at least to this author, that the underlying purpose must be to stress once again the notion that delimitation is to be effected on the basis of principles of law, and not the relative military or economic power of the states concerned. If this is the case, such a change would not seem to be worth stimulating demands for reservations among supporters of the existing text.

111 Informal Single Negotiating Text, UN Doc. A/CONF.62/WP.8 (May 7, 1975), Arts. 61 and 70, reprinted in 14 ILM 682 (1975). North Sea Continental Shelf cases, note 107 supra, Judgment, para. 101, at 53. The reference to the use of the median or equidistance line was added in the ISNT to the language used by the Court at that point.

112 The text of ICNT/Rev.1, Article 121 has remained the same since the original Single Negotiating Text. Opposition to the delimitation texts intensified after the requirement that the median or equidistance line should be applied provisionally was deleted in the Revised Single Negotiating Text (RSNT). Since the reason was that “the Conference may not adopt a compulsory jurisdictional procedure for the settlement of delimitation disputes” (RSNT, part II, Introductory Note, para. 12), it is not clear what role positions regarding dispute settlement played in this reaction.

113 Alternative texts and notes prepared by the Secretariat in 1976 tended to focus discussion. 6 Off. Rec. 125 (1976).

114 Conf. Doc. FC/2 (July 27, 1979).

115 The Chairman of the Group of Legal Experts has submitted a text on these. Conf. Doc. FC/16 (Aug. 23, 1979).

116 Conf. Doc. FC/1 (July 23, 1979).

117 ICNT/Rev.1, Art. 301.

118 UN Doc. A/CONF.62/WP.10/Rev.1, at 139–40 (English).

119 Conf. Doc. FC/1, note 116 supra.

120 UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

121 Conf. Doc. FC/4 (Aug. 1, 1979) contains the president’s summary of the debate on amendment and revision.

122 One interesting idea would avoid the difficulty of identifying substantive groups by precluding entry into force of an amendment if a state previously declared that its substantial interests were directly affected and that it could not ratify the amendment. Any party could invoke the dispute settlement procedures of the convention to challenge the conclusion of the state that its substantial interests were directly affected. Conf. Doc. GLE/FC/10 (Aug. 23, 1979).

123 See Vienna Convention on the Law of Treaties, note 120 supra, Art. 30, para. 4(b) and Art. 40, para. 4.

124 See text accompanying note 119 supra.

125 Conf. Doc. FC/6 (Aug. 7, 1979) contains the president’s summary of the debate on reservations.

126 Vienna Convention on the Law of Treaties, note 120 supra, Art. 19.

Reservations to the constituent instrument of an international organization require the acceptance of the competent organ of that organization. Id., Art. 20. How much of parts XI (deep seabeds), XV (settlement of disputes), and related annexes are covered by this rule? In the case of the Seabed Authority, what is the competent organ?

127 In some instances, the positive benefit of promoting widespread ratification outweighs the substantive cost of permitting a particular reservation. As already noted, this category may include the substantive provisions regarding delimitation of the economic zone and continental shelf between states with opposite or adjacent coasts.

128 Conf. Doc. FC/7 (Aug. 9, 1979) contains the president’s summary of the debate on relation to other conventions. See ICNT/Rev.1, Arts. 35(c), 51(1), 74(5), 83(4), 282, and 283 in this connection.

129 Virtually all of the provisions of the 1958 conventions are either repeated, modified, or replaced by the provisions of the ICNT/Rev.1.

130 This matter will be discussed further in connection with the question of jus cogens.

131 See Conf. Doc. GLE/FC/9 (Aug. 20, 1979).

132 Convention on International Civil Aviation, 1944, note 49 supra.

133 See Conf. Doc. FC/7, note 128 supra. Two provisions of the ICNT/Rev.1 are directed to this kind of problem. Article 58 preserves within the economic zone “the freedoms referred to in article 87 of navigation and overflight.” Article 87 is the provision enumerating the freedoms of the high seas. Article 86, dealing with the application of the high seas provisions, is not a definition, and expressly states that it “does not entail any abridgement of the freedoms enjoyed by all states in the exclusive economic zone in accordance with article 58.” The ICAO question was one of those that led to the adoption of the quoted terms. The author notes this point in 72 AJIL at p. 69 and note 45 thereof in explaining them, referring generally to “insufficiently informed oral remarks of employees of certain nonmaritime specialized agencies” as one of the reasons for the clarification of the text regarding freedom of navigation and overflight in the economic zone.

134 Conf. Docs. FC/9 (Aug. 14, 1979) and FC/11 (Aug. 16, 1979) contain the president’s summary of the debates on entry into force.

135 Conf. Docs. FC/8 (Aug. 13, 1979) and FC/8/Add.1 (Aug. 10, 1979) contain a Secretariat study of instruments establishing preparatory bodies. It will be considered at the start of the next session.

136 The1 Secretariat recirculated its study of provisional application, UN Doc. A/AC. 138/88 (June 12, 1973).

137 During the discussion of ratification in the Group of Legal Experts on Final Clauses, it was pointed out that signature alone would not bind a state to the provisions of the treaty, and that the principle of Article 18 of the Vienna Convention on the Law of Treaties (note 120 supra) would not have either this effect or the effect of impairing the rights and obligations of states under the existing international law of the sea and treaties.

138 Conf. Doc. FC/13 contains the president’s summary of the debate on denunciation.

139 See Vienna Convention on the Law of Treaties, note 120 supra, Art. 43.

140 Doc. 1210, P/20, 1 UNCIO Docs. 612, 615–17, 619–20 (1945).

141 Vienna Convention on the Law of Treaties, note 120 supra, Arts. 53 and 64.

142 It can be argued that even Article 103 of the UN Charter as such binds only UN members.

143 See North Sea Continental Shelf cases, [1969] ICJ Rep. 28–42, paras. 37–72.

144 Conf. Doc. FC/14 (Aug. 29, 1979) proposes the following text:

145 It should be noted that an interpretation of the common heritage principle that takes adequate account of the world’s needs for raw materials at reasonable prices and the interests of developing countries in deriving financial benefits from deep seabed mining might well preclude restrictive commodity agreements affecting the supply, marketing, or prices of any metal mined from the deep seabeds.

146 See Conf. Doc. FC/4 (Aug. 1, 1979).

147 Conf. Docs. FC/13 (Aug. 20, 1979) and FC/17 (Aug. 23, 1979) contain the president’s summary of the debates on participation in the convention.

148 Conf. Doc. FC/5 (Aug. 3, 1979), repeating the text in UN Doc. A/CONF.62/ L.32 (Sept. 14, 1978).

Utilization and conservation of living resources, some aspects of the proposed deep seabed mining regime, protection of the marine environment, and potentially transport and energy have been mentioned as matters within the competence of the EEC for these purposes. Koers, Participation of the European Economic Community in a New Law of the Sea Contention, 73 AJIL 426 (1979). With respect to the Seabed Authority, Koers notes that EEC participation “in the Assembly (and other organs) will, of course, require special voting arrangements.” Id. at 434. Were this a reference to the Council, it would certainly be an understatement. Current approaches would give each Council member one vote and rely on the number of votes necessary to prevent action as the basis for protecting seabed mining and consumer interests. The “blocking” numbers discussed proceed on the assumption that seabed mining and consumer states that are members of the EEC would qualify and vote separately.

An informal proposal by the USSR (Conf. Doc. FC/3 (July 30, 1979)) takes a more general approach to the question of international organizations with competence in matters dealt with by the convention. It provides:

• 1.

  1. If an international organization established by States conducts activities in one or several spheres regulated by the provisions of this Convention, references to States in the corresponding provisions of the Convention shall be deemed to apply to such an organization, on condition that it declares its acceptance of the rights and duties provided for in this Convention.

• 2.

  2. States Parties to this Convention which are members of such an organization shall take all appropriate steps to ensure that the organization makes a declaration in accordance with the preceding paragraph.

Compare Art. 22, Convention on International Liability for Damage Caused by Space Objects, 1972, 24 UST 2389, TIAS No. 7762.

149 Conf. Doc. FC/lt) (Aug. 15, 1979).

150 Statement and Informal Proposal of the Federated States of Micronesia (Aug. 23, 1979).

151 Conf. Doc. FC/12 (Aug. 16, 1979).

152 Ibid.

153 Ruling on Participation of Member States of European Atomic Energy Community in Convention Relating to Physical Protection of Nuclear Materials in Absence of Concurrent Participation of the Community, 21 O.J. Eur. Comm. (No. C 302) para. 35 (1978), 18 ILM 85, 101 (1979).

154 Outside the Mariana Islands.

155 Conf. Doc. FC/11 (Aug. 16, 1979) contains the president’s summary of the debate on the transitional provision.

156 The transitional provision was removed from the treaty articles in the RSNT. It was Article 136 of the SNT.

157 The basic juridical provisions refer, necessarily, to states. “Among the relevant provisions cited were articles 2, 3, 17, 21, 24, 25, 33, 38, 41, 42, 47, 49, 53, 54, 56, 60, 61, 62, 70, 73, 74, 76, 77, 83, 87, 90, 91, 94, 105, 106, 107, 125, 130, 153, 156, 159, 161, 192, 193, 194, 211, 217, 218, 220, 226, 228, 234, 235, 245, 246, 279 and 287 of the ICNT/Rev.1.” President’s Note, Informal Plenary on Final Clauses, Conf. Doc. FC/17 (Aug. 23, 1979), para. 2.

158 Conf. Doc. FC/12 (Aug. 16, 1979).

159 The application to continental shelf resources of the relevant restraints of international law on the occupying power is not contested. See U.S. Dept. of State, Memorandum of Law on Israel’s Right to Develop Oil Fields in Sinai and the Gulf of Suez (Oct. 1, 1976), 16 ILM 733 (1977). Israel’s response, while differing on the effect of the relevant rules, states: “The duty of an occupant is inter alia to maintain economic prosperity of occupied territory.” While “reasonable exploitation” is in its view permitted, “waste or excessive extraction” are not. Ministry of Foreign Affairs Memorandum of the Law on the Right to Develop New Oil Fields in the Sinai (Aug. 1, 1977), 17 ILM 432, 443 (1978).

160 Some of the problems are discussed in 69 AJIL (1975) at pp. 786–87 (regarding SNT Art. 136).

161 The last preambular paragraph of the ICNT/Rev.1 affirms that “the rules of customary international law continue to govern matters not expressly regulated by the provisions of this Convention.”

162 ICNT/Rev.1, Art. 298, para. 1(a).

163 This theme was resoundingly pressed by three distinguished Nova Scotia lawyers, Professors Gold, Flemming, and Johnston, at the 13th Annual Meeting of the Law of the Sea Institute in Mexico City in October 1979. Their remarks will be published in the Proceedings. These lawyers—albeit unwittingly—have posed fundamental questions about the willingness of informed members of the Canadian public to support the integrity of the Canadian side of the massive and revolutionary bargains on both freedom of navigation and coastal state pollution controls struck with the rest of the world. The broader question is the conclusion states will draw about the possibilities for serious negotiation in the future.

164 The procedural and substantive implications of the “package deal” approach to the negotiations are the subject of an illuminating essay by the leader of the French delegation, Guy Ladreit de Lacharrière, in Aspects juridiques de la négotiation sur un “package deal” à la Conférence des Nations Unies sur le droit de la mer, in Essays in Honor of Erik Castrén (Publications of the Finnish Branch of the International Law Association No. 2, Helsinki 1979).

165 Note 14 supra.

166 Appended to the Rules of Procedure, reprinted in 73 AJIL 3 n.11 (1979).

167 In a main committee, a determination that all efforts at consensus have been exhausted can be made, and an amendment can be adopted, by a majority of those present and voting; the “cooling-off period” during which a vote can be deferred is 5 days. Rules of Procedure, note 14 supra, rule 55. In Plenary, the requisite majority is two-thirds of those present and voting, provided that majority includes at least a majority of the states participating in that session of the conference (something on the order of 75 affirmative votes at a minimum); the “cooling-off period” is 10 days. Rules 37 and 39.

168 The conference has provided for negotiations in Plenary in which the president would have the chairmen of the 3 main committees associated with him on the podium. UN Doc. A/CONF.62/62, note 5 supra, para. II(14).