Article by Paul Laurence Saffo
Twenty years ago, the technological capability for deep ocean minerals exploitation appeared so remote that the International Law Commission (ILC) decided to omit study of the question in preparatory work for its 1958 conference. Within a decade of that conference, however, the imminence of manganese nodule mining had clearly become a growing source of concern in the international community. This concern was crystallized in the Malta Note Verbale to the United Nations on August 17, 1967 proposing a declaration and treaty to reserve for peaceful purposes the use of the seabed beyond the limits of national jurisdiction and to limit the exploitation of its resources in the interests of mankind. The Malta Proposal had a catalytic effect, which resulted in a flurry of General Assembly activity leading to the convention of the third United Nations Conference on the Law of the Sea (UNCLOS III), the second omnibus sea conference in as many decades. As UNCLOS III enters its seventh session, the seabed mining issue continues to occupy a central position in the ongoing reassessment of the law of the sea.
It is significant that, for all its destabilizing effects on the existing legal regime, deep ocean mining remains largely a paper technology, untested at either production depths or production scale. This initially reflected the remarkable fact that an attempt was being made to anticipate the legal consequences of ongoing technological innovation. Unfortunately, technology has advanced steadily while the international legal regime has not. Events occurring in 1974 clearly indicated that deep ocean mining was both technologically feasible and economically attractive. Since that date, initiation of the final preproduction phase of deep ocean mining has been stalled by the uncertain status of the international law applicable to the seabed regime.
There exists a consensus among third world and developed nations that a comprehensive agreement at UNCLOS III would prove to be the most satisfactory means of establishing this determinate seabed regime. Despite this consensus, however, progress towards agreement in Committee I has been agonizingly slow. The deep seabed regime has been under negotiation for over nine years, longer than any other issue at the conference, and yet it remains the area in which the least amount of agreement currently exists. If agreement cannot be realized within the next two sessions, it is probable that rising contention within Committee I, the pressure of interconference dynamics, and the press of events will place comprehensive agreement irretrievably beyond the grasp of UNCLOS III.
It is doubtful that Committee I will be able to reach an agreement within this two year time frame since a fundamental divergence of views exists over the few issues remaining. Dispute centers around the degree to which a proposed International Seabed Authority (ISA) should be able to exert control over the mining activities of the multinational mining "entities." The Group of 77 (a group of some 119 developing countries) would like to maximize this control and, once the Enterprise (the organ through which the ISA would carry out its activities) has developed mining capabilities of its own by technology transfer, phase out multinational activity entirely—in effect, giving the ISA a monopoly in exploiting seabed resources. The developed nations, on the other hand, would generally prefer a restricted Authority that would act principally as an international claims registry, permitting the multinationals to operate with a minimum of administrative encumbrances.
These positions reflect a substrate of even more basic considerations. It is sensed by both sides that what is agreed upon in Committee I will become a paradigm for future legal agreement on such important issues as technology transfer and the uses of outer space. In the final analysis, however, the crux of the issue in the Committee I negotiations involves no less than a conflict between developed and developing nations over the direction of the future global economic and political order.
The stage then is set for stalemate in Committee I. The stakes, both immediate and long-term, appear to be very high. Further, both sides are negotiating from positions of nearly equal strength. The Group of 77 has the votes to establish a powerful seabed authority, while the developed nations control the technology and capital necessary to get on with the job. To date, a compromise between international control without technology and technology without international control has proved unpalatable to both sides. Unless it becomes clear to both groups that one side enjoys a stronger position, it is unlikely that the deadlock in Committee I will be broken before UNCLOS III is concluded.
In the absence of an agreement emerging from Committee I, customary international law will govern nodule recovery operations. Legal uncertainties presently discouraging initiation of the final preproduction phases will initially be minimized by the introduction of specific domestic legislation such as the United States' Deep Seabed Hard Minerals Bill. Over a longer time frame, these legal uncertainties will be resolved by states' practice and through internationalization of domestic legislation by reciprocatory clauses and treaty agreements.
This makes it critical to ascertain the present status of the international customary law applicable to deep ocean mining, for this will determine the initial conditions under which mining operations will begin. There is no question that such law exists. Equally certain, however, is that this customary law "has always been basically uncertain, in conception as in practice, but since there [has been] little mining in fact, the law and its uncertainties [have been] largely hypothetical."
A number of writers have expressed the opinion that customary law is presently in a state of flux. If this analysis is correct, then what has been the agent of change? Has UNCLOS III had, as J. Alan Beesley suggests, the effect of "developing new concepts and eroding the 'old international law'"? In the absence of a formal agreement, it is hard to argue that the work done in Committee I can perceptibly alter international customary law. Of the other possible factors, there is no evidence of decisive states' practice, and there have been no international judicial decisions involving the area of the seabed beyond national jurisdiction. There exists only one forum in which activity has occurred that might be capable of generating the postulated change in the customary regime. That forum is the United Nations General Assembly, and the potential vectors are the twenty-one General Assembly resolutions that have touched law of the sea issues since 1967.
This article will focus on a consideration of whether these General Assembly resolutions have in fact effected a change in the status of customary laws governing the seabed as of 1967. Finally, it will consider whether this change has had the effect of unifying the extant customary rules or of simply introducing further uncertainties.
About the Author
Paul Laurence Saffo. A.B., Harvard University; LL.B. (Cantab.).
Citation
53 Tul. L. Rev. 492 (1979)