After ten years of intermittent discussion the Law of the Sea Conference finally came to a close last December when a Convention was signed by 117 states at an official ceremony at Montego Bay, Jamaica. Several key states, however — most notably the United States, Britain. West Germany and Japan — have refused to sign on the grounds that the proposed International Seabed Authority limits the freedom of their mining companies to exploit the resources of the seabed. The creation of an international organisation to manage seabed mining threatened the existence of the Conference throughout the last ten years and even now poses a threat to the workings of the new Law of the Sea. In fact the central issues which predominated during the conference were the thorny ones of ownership and control of resources. It could be said, however, that the aim of the United Nations Law of the Sea Conference was to establish the rules of the game for the use and abuse of the oceans. This proved necessary since there was an increase in the recoverable economic value of the seabed combined with a polarisation of interests between the industrialised states of the north and the developing states of the south — a factor promoted by the increase in the number of new sovereign states since the post-1945 de-colonisation. The interests of the south are articulated by the Group of 77, which in 1980 comprised 117 states. This coalition is determined to ensure that there will be no new colonialism in relation to the wealth of the seabed.
The Third United Nations Conference on the Law of the Sea (UNCLOS) started in 1973. UNCLOS was divided into three main committees — for deep sea mining; traditional law of the sea problems such as navigation, continental shelf and fisheries; and marine research and pollution. These issues were not without controversy since disputes exist over national boundaries, rights within national boundaries, those over rights in the ocean beyond national jurisdiction and those arising from non-ocean sources. Around the world there are numerous contested zones, islands, archipelagos, not to mention rights over navigation. There are more than 100 strategically important straits such as the Malacca strait between Malaysia and Indonesia, through which the bulk of Japan’s oil supplies pass. There are disputes over fishing where the interests of the maritime states — the Soviet Union and Japan for example — with large distant water fishing fleets collide with those of the coastal states with large fishing grounds off their shores.
The establishment of an Exclusive Economic Zone — EEZ — would allow states to claim exclusive rights to the seabed out to 200 miles from the shore. There are, however, numerous islands whose ownership is hotly contested, the Falklands for instance. Although islands are defined as naturally formed areas of land surrounded by water at high tide and therefore entitled to an EEZ, this does not prevent states from demanding EEZ rights for rocks which cannot sustain human habitation or economic life on their own. The reason for this is simple: states commanding rocks in resource-rich areas can use them to claim the contiguous resources. In this respect the dispute between Britain. Ireland and Denmark over Rockall, a tiny rock about 400km west of the Hebrides, came into focus since it commands an area of 201,250kms of the continental shelf with potential oil reserves. It is not surprising then that Britain has consistently argued that existing international law makes no distinction between different types of island and that to do so is likely to result in ambiguities. The resolution of this particular squabble — ownership and whether such rocks are entitled to an EEZ — will set an important precedent as there are similar disputed “rocks" in the Pacific and Caribbean.
The Falklands war was not unrelated to the question of EEZs since the continental shelf contains oil reserves and the seas are rich in fish stocks. It is for this reason that seemingly insignificant islands as the Falklands Dependencies, South Georgia and the South Sandwich Islands, assume strategic significance as they can be used to stake claims to the resources in the surrounding seas and on the seabed. Furthermore such islands are useful as a staging post to the Antarctic, another area potentially rich in untapped resources. Shortly after the Argentinian invasion of the Falklands Lord Shakleton was moved to remark:
What is at stake and what undoubtedly is in the minds of the Argentinians is not just the Falkland Islands but their claim to Antarctic territory. (3 April 1982 Hansard (Lords) vol. 448 col. 1585.)
Two supposedly allied NATO states, Greece and Turkey, were at one time more likely to go to war with one another than with the Soviet Union over the resources of the Aegean Sea. According to Barry Buzan, “The conflict of interest between Greece and Turkey arose, like many others, after discovery of oil by an American exploration company” (Adelphi Papers No. 143, A Sea of Troubles? Sources of Dispute in the New Ocean REGIME).
In the Far East. Japan, in addition to the long-running dispute with the Soviet Union over the Kurile Islands, contests the ownership of the Senkaku Islands in the East China Sea with both China and Taiwan. The significance of potentially large off-shore oil is not lost on states dependent on oil imports such as South Korea, Japan and Taiwan. Moreover, the continental shelf and economic zone boundaries cannot be drawn until this dispute is resolved.
The Barents Sea and the conflict of interests between the Soviet Union and Norway is. perhaps, typical of many of the problems associated with delimitation. The contested area constitutes roughly 153,000 square kilometres of the continental shelf between Novaya Zemlaya and Spitsbergen. For the Norewegians substantial fish and seabed resources, principally oil, depend on how the boundary is drawn. This is particularly important for the Norwegians since oil is vital for their economy. The existence of indigenous oil reserves, as in the North Sea and possibly in the Barents Sea, allows Norway to avoid the vulnerabilities associated with dependence on Middle Eastern oil. It is for this reason that Norway is concerned about the activities of a Russian oil drilling ship, the Valentin Shashin (Guardian, 2 May 1983). Energy supplies, even for resource-rich Russia, may become critical in the next decade since Soviet oil and gas supplies may be insufficient to meet both domestic and growing Eastern European demands. Despite the disputed zone the Norwegians have recently signed a deal with the Russians which will, according to the Guardian (27 April 1983) permit the Norwegian Petroleum Consultants to evaluate exploration costs to decide where to drill and to frame the timetable of the operation. Offshore oil exploration is an area in which the Russians lack the technological expertise of Western states and are, therefore, heavily dependent on Western assistance. In fact, “the Norwegian offshore industry is keen to get in on the act, and the yards have been pressing the Government to be allowed to sell to the Soviets” (Guardian, 17 June 1983). Furthermore, the British and the French are keen to sell the Russians oil-exploration-related technology even though the American government would rather they did not. However, “this is not in the interests of West European industry and commerce” (Guardian, 27 April 1983).
In addition to the availability of oil and gas the Russians have a keen military interest in the Barents Sea and the Norwegian Sea. The Russian Northern Fleet has bases at Pechanga, Murmansk and Severomorsk, all of which are situated on the Kola Peninsula in the Leningrad Military District. Moreover, one of the two Soviet ballistic missile submarine bases is at Polyarny at the Eastern end of the peninsula. However, as the British and Norwegians discovered, increased commercial traffic and oil exploration do not mix — as they had to transfer their joint manoeuvres from the North Sea to the Shetlands. UNCLOS allows for the concept of “innocent passage” whereby ships are entitled to passage provided it is not prejudicial to the “peace", "good order" or “security" of the coastal states. Warships and submarines, however, pose problems but all attempts to restrain their passage have been opposed by the major maritime states.
Perhaps the greatest controversy facing the Conference relates to deep sea mining. The resources at stake are large deposits of potato-shaped polymetallic nodules — “manganese nodules". They contain traces of vital “strategic metals" such as cobalt, nickel, copper and manganese. On average each nodule contains 30 per cent manganese, 1 per cent nickel and ¼ per cent cobalt. Cobalt, for instance, is an indispensable element in the manufacture of small high-powered magnets necessary for weapons guidance systems. In a uranium enrichment plant employing the gaseous diffusion method nickel plated steel is used since it is able to withstand the highly corrosive uranium hexathoride gas. However,
The nodules themselves have lost glamour to deposits of polymetallic sulphides containing copper and other metals in much higher concentrations, first encountered at volcanic vents in the Pacific rift near the Galapagos Islands and off the coasts of Oregon and Washington. Similar deposits are certain to be found elsewhere along the 40,000 mile world-gridling submarine rifted ridge. (“The Law of the Sea. Elisabeth M. Borgese, Scientific American, March 1983, Vol. 248. No. 3. p. 33.)
Hitherto such metals were only available from relatively few states which were either politically unstable or unfriendly to the West. Since the EEC’s import dependence for materials such as manganese is 99 per cent and copper 91 per cent, “The European Community's industrialised countries are keen to see that seabed mining for cobalt, copper, manganese and nickel begins as soon as possible and with as little restraint as possible” (Guardian, 23 November 1982). Japan is 95 per cent dependent on imports of manganese and 98 per cent on nickel. It is, therefore, not too difficult to appreciate the interests of Western states in the possibility of achieving independence in relation to the supply of industrial materials. This chiefly explains their opposition to the deep sea mining provisions of the Law of the Sea Convention. Britain and the US vigorously oppose the insistence of the developing states that an International Seabed Authority should regulate the market, transfer technology and ensure that the benefits accrue to the developing states. In short, the key problem is who will be permitted to exploit seabed nodules?
The Group of 77 argued that since the new resources of minerals threatened the economics of those states in the developing world dependent on the export of one or two minerals such states should be compensated for the loss of export earnings. Moreover, it urged that an ISA should have stronger powers; for example, to regulate production and to carry out mining operations and related activity in the name of the Authority. The United States however, largely at the behest of its multinational mining companies, opposed the treaty on the grounds that such an Authority would limit their commercial freedom, specifically by obliging them to pay taxes on earnings from mining to such an authority as well as to supply it with technology. Although the Group of 77 insisted that the establishment of an ISA is an integral component of a New International Economic Order and sees the ISA as very much a test case for future resource redistribution, the Group has been unable to maintain its unity. It has been dominated by coastal states, especially those with large coastlines and significant offshore resources. This has been achieved at the expense of the “geographically disadvantaged states” — landlocked states and those without large coastlines or significant offshore resources. Even though the industrialised states oppose the content of the ISA proposals, not all are in favour of unhindered access and exploitation since this would work to the unilateral advantage of American mining companies. Britain, West Germany and Italy share the American view, but Ireland, Denmark and Greece “recognise the advantages the treaty could provide for countries lacking the industrial base for seabed mining” (Guardian. 23 November 1982).
At the signing ceremony of the Convention the US representative, Thomas Clingan, stated unequivocally that:
The US has an extreme national interest in having access to strategic metals from the oceans . . . the Treaty just doesn’t meet our interests in terms of deep sea-bed mining provisions. (International Herald Tribune, 8 December 1982.)
And that, in the end, is what the Law of the Sea Conference is concerned with: the pursuit of the “national interest" — the owning minority. The resources of the seabed beyond the 200-mile EEZs are designated “the common heritage of mankind”; nothing could be further from the truth.
John Walker
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