HACIA VENUS O LUCIFER: PACIFICACION DE LAS PROYECCIONES

Despite the fact that there was considerable opposition in G77 to a second session in 1976 (both because of other commitments and a desire to study the RSNT), the United States had exerted strong pressure at the fourth session on other delegations to agree to a second session in New York the same year. Both the US State Department and the Pentagon considered that without such a session unilateral mining legislation would be passed in the Autumn of 1976 wrecking the prospects of a Convention.123 At the beginning of the session the President of the conference circulated a note in which he set out the main areas on which he felt further negotiation was needed. Each committee was to identify the key issues in its respective part of the RSNT and to develop procedures for dealing with those issues.124 The consideration of the key issues occupied the entire fifth sessio n .125

Little progress was made at the session in resolving key issues. The work of Committee One became highly charged with demands by G77 that all issues on DSBM should be open for negotiation. This conflict spilled over into the work of the other two committees. It was clear that the matters being dealt with by the first committee were testing the political will of many governments and that without some movement towards com prom ise here there would be a diminished chance to achieve a comprehensive Convention. For Australia the concern here was whether these difficulties would threaten the package approach to securing a com prehensive Convention, a key Australian objective.

Committee One

Committee One discussions were dominated by the G77 which argued that as a result of the way in which the Chairman of Committee One had produced the RSNT text at the fourth session (through consultation with an unrepresentative group) the text should not have the status of a Revised SNT.126 The G77 argued that the Seabed Authority should have the power to make all important decisions while the developed states strongly opposed this as a means of limiting access to the area beyond national jurisdiction. The gap here reflected wider philosophic differences over the principle of the common heritage concept with the developing countries seeing the parallel system as one which provided the right of multinational companies to exploit the area. Only the Authority, argued the developing countries, would represent the interests of all mankind.127

These differences emerged in a workshop of the whole Committee where Australia participated, and in general discussion where previously stated positions on the issue of assured access and powers of the Authority were rehearsed and little progress m ade.128 In an endeavour to promote an accommodation US Secretary of State Kissinger in a speech outside the conference made a number of important proposals, none of which appeared to make any real impact on the fears of developing countries that the parallel system of exploitation would meet their interests.129

Generally speaking the Australian delegation continued its conciliatory role in Committee One, working with Canada.130 As the parallel system in the RSNT was very much along the lines that Australia had sought and was broadly acceptable to the developed states A ustralia’s approach was to attempt to convince G77 to adopt a more flexible approach by arguing that the issues were not so much political but rather technical and in that sense required further study.131

W ith the Committee focussing almost exclusively on the system of exploitation132 A ustralia’s interests in the nickel issue did not appear to be pursued by the delegation. W hatever the merits of Australia’s efforts to pursue compromise through stressing the ‘technical’ nature of the issues, Lauterpacht’s call for more ‘detailed study’ seemed to fall on deaf ears in the ‘hot house’ atmosphere of Committee One at the summer New York session. Australia , it appeared, could not do a great deal to affect the situation133 and the main concern of Australia was now the real threat the issue posed to the successful conclusion of the conference.

Committee Two

In contrast to Committee One politics where Australia was somewhat of a spectator the delegation was active in many of the issues in Committee Two. In Committee Two all negotiations were conducted in open ended negotiating groups established by the Chairman and in small groups when it appeared that the negotiating groups had carried issues as far as possible. Three negotiating groups were established to deal with the legal status of the EEZ, questions of landlocked states and a third to deal with issues relating to revenue sharing and the definition o f the outer edge of the m argin.134 A ustralia participated in the first and third groups (to which any state could volunteer) and later in the session in two consultative groups selected by the Chairman on the legal status o f the EEZ and the outer edge of the margin.

As noted above a single negotiating group was established to consider the definition of the margin issue and revenue sharing but in practice a smaller informal group o f margin

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states met on the delimitation issue.135 A consultative group was also established and Australia was involved here.136 The shelf issue occupied most Australian attention in Committee Two. In an endeavour to ‘broaden acceptance’ that the shelf extended to the outer edge of the margin the Margineers group proposed the Irish formula along with a Boundary Commission ‘with the power to certify that the boundary of the continental shelf had been correctly delineated’.137 There was in fact widening support for the principle o f national jurisdiction over the margin as evidenced by the C hairm an’s comments that ‘recognition of the rights invoked by states with continental shelves extending beyond 200 miles is in fact one of the main components of the package deal’.138 However at that stage the Margineers formula was losing ground to the simpler US formula of 60 miles beyond the foot of the slope139 and some Arab and African states continued to insist that the margin should not extend beyond 200 miles.140

In the negotiations on revenue sharing between 200 miles and the edge of the margin discussions ranged on the way contributions were to be assessed, whether all states with a shelf extending beyond 200 miles had to contribute, which states would benefit from the contribution and what authority would be responsible for collecting and distributing them .141 These negotiations took place not only in negotiating group 3142 but also in a wider group of coastal states and land locked and geographically disadvantaged states known as the Group of 21. Australia was not a member of this group (see below). While the delegation now clearly recognized that the margin policy would only be acceptable with a revenue sharing component,143 Australia made clear that Australia’s claim to the margin was not negotiable— only when the margin claim was confirm ed by the conference would Australia consider the question of whether to share revenue. The thinking here was that at that stage there was no political advantage to be gained by removing opposition while other more contentious issues o f greater economic and strategic importance remained before the conference and that opposition would provide coastal states with a lever to obtain the best possible position for coastal states.144 This put Australia at odds with most other broad margin states that indicated that a compromise solution might lie in a system of revenue sharing.145

The juridical status of the EEZ was the most contested issue in Committee Tw o.146 The US made clear that they could not agree to ‘any text which makes it clear that the zone is not high seas. On the contrary, the text must somehow explicitly accord high seas status to the zone but without the recognition that the zone is not high seas with respect to the exercise of coastal state rights provided for in the Treaty’.147 The US exerted heavy pressure on the residual rights issue since both military maneuvers in the economic zone and scientific research would be restricted by denying the high seas status to the economic zone.148 The opposite view was expressed by the more territorialist states who

insisted that the zone be characterized as one of national jurisdiction in which other states enjoy only subordinate rights of navigation, overflight, and communication.149 Australia resisted US pressure to support its views but worked closely with the US to try and find a solution to the problem .150 W hile the US indicated that they could support the amendm ent moved by Australia at the spring New York session, key coastal states indicated that Australia’s amendment was not acceptable and Australia did not introduce it again at the session. Australia worked with other moderate coastal states (Canada, Ireland, New Zealand and Norway) to modify proposals of the more territorialist members of the coastal state group. Australia was still anxious to ensure that the EEZ should be defined in such a way as to make it clear that it was not territorial sea but at the same time pointed out to the US that there was no possibility of having all the residual high seas rights accorded to the international com m unity.151 For Australia it appeared that a consensus could be reached which would state that the EEZ was neither territorial seas nor high seas but which would need to make clearer the extent of the rights of the maritime states in the E E Z .152 However the fifth session had dem onstrated that compromise was still some way off.153 Given that Australia’s amendment proposed at the fourth session had failed to attract support from key members of the Coastal States group it seemed that any attempt to gather support for the amendm ent would be a sensitive exercise if Australia were not to jeopardize relations with its coastal state allies. There was initially no discussion of the RSNT fisheries articles. However the fact that in relation to fisheries there was ‘the virtual absence of attack on Articles 50 and 51 which confer on the coastal state the power to manage the living resources of the E E Z’154 was an encouraging signal that a key Australian goal on fisheries had been largely achieved. The key development on fisheries at the fifth session was the formation of a group of ten coastal states and ten LLGDS states to deal with the issues of whether the LLGDS should have a general right to harvest EEZ resources or whether such right (if conceded) should relate only to what was surplus to the harvesting capacity of the coastal state. Australia was not a member of the the Group known as the Group o f 21 (chaired by F iji’s Satya Nandan).155 Australia participated in a coastal states working group to develop a coastal states position on the basis for negotiation with LLGDS, but generally Australia appeared to play its consistent low profile on the issue.156 The general attitude of Australia here continued to be that while the interests of some of the least developed states would need to be accommodated it was important in working towards the conclusion of a Convention that no action be taken which would prejudice the interests of friendly coastal states. That meant Australia supported coastal states views that right of access by LLGDS be limited to surplus stocks only.

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While the issue of straits and delimitation occupied some time at the session Australia continued to play a fairly peripheral role. A negotiated settlement on straits, however, seemed closer to achievement.157

Committee Three

The Chairman of Committee Three suggested that the key issues facing the Committee were vessel sourced pollution in the territorial sea, MSR in the EEZ and transfer of technology.158 Australia took over the leadership of the ‘special areas’ case from Canada and achieved a result that was probably the best that could be achieved. On the MSR issue the delegation’s concilitory efforts were in the end stymied by the Third Committee Chairman.

D iscussions on the preservation of the marine environm ent were devoted almost exclusively to the question of vessel source pollution in the territorial sea but extended to the question of pollution in the EEZ and related enforcement questions. In total 142 amendments were submitted on the articles in RSNT relevant to this question.159 Debate took place in thirteen informal plenary meetings and at eleven meetings of a negotiating group under Mr. Vallarta of Mexico160 where Australia was a member.

The debates on vessel sourced pollution in the territorial sea remained largely unchanged and ‘tended to assume the character of a debate on the extent o f a coastal state’s sovereignty in the territorial sea rather than that of a search for formulae which would control pollution without hampering innocent passage’.161 The debate continued to revolve around the maritime states view that coastal states should not have powers to make laws and regulations which differed from international rules and standards with respect to matters of design construction, manning and equipment. Other states, such as Canada and the United States, felt that coastal state sovereignty would be eroded if their right to make national laws was curtailed.162 Again the debate on the vessel sourced pollution was similar: the maritime powers arguing that RSNT articles were adequate and that national laws and regulations should conform to international rules and standards and the extreme territorialist states in favour of unlimited powers for coastal states to control pollution in the EEZ.163 No consensus emerged between the groups.164

Australia did not directly enter these discussions mainly because it took the initiative in the area of major concern to Australia in the third committee— protection of the environment in areas where there were special environmental or other conditions. As previously noted the RSNT did not satisfy Australia’s interest here in that it allowed the coastal state to apply to special areas which it might wish to designate within the EEZ

only those internationally agreed rules and standards. While those rules prohibited discharges within special areas they did not cover ‘rules such as traffic separation schemes, compulsory pilotage or under-keel clearances’ which Australia ‘might want...to introduce for protection of the Great Barrier R e e f .165 Australia took over the leadership on this issue from Canada at the fifth session166 and proposed a number of amendments of article 21(5) of the RSNT167 but these were criticized by the maritime pow ers.168 Redrafts were attem pted by the A ustralian delegation to take account o f their objections.169 Australia’s arguments for coastal state flexibility was supported by certain states concerned about passing tanker traffic— Egypt, Malaysia, India, China— as well as by the more territorialist states such as Kenya and Ecuador. However, the Netherlands and Germany argued that the role of the ‘competent international organisation’ be strengthened and were supported by Turkey, Japan, Bulgaria, A rgentina, U nited Kingdom and Liberia.170

The text which was read into the official records171 achieved ‘near consensus’172 but gave the international organisation a ‘much expanded role’.173 For that reason it did not completely meet A ustralia’s initial preference for no international veto over the establishm ent of special areas. A ustralia wanted simply, ‘consultation(s) with appropriate organisations’ with recourse to dispute settlement procedures174 but in the end even Australian proposals were including a veto elem ent.175 W hile Australian reaction within and outside the conference was positive towards the new text176 it was clear opposition from the maritime states (that feared that economic zones may be turned into ‘special areas’ unless the question was regulated at the international level)177 resulted in less coastal state flexibility than Australia wanted.178

On other marine environment issues Australia was active in resisting moves by maritime powers to weaken port state enforcement powers179 and pushed for stronger coastal state enforcement powers by authorising the diversion of a polluting vessel providing it did not arrest or unduly delay such vessels.180 By the end of the session the marine environment text looked reasonably stable with the Chairman of committee three reporting that the basic concepts in the RSNT had received wide support.181 It thus appeared unlikely that Australia would push for amendments that would have the effect of altering the balance in the text.

On MSR issues the delegation’s role was very much that of the consensus builder, with Australia’s Keith Brennan in particular making vigorous efforts to seek to build common ground.The main discussion revolved around Article 60 o f the RSNT— w hether the consent of the coastal state should be required before research could be undertaken in its E E Z :182 ‘Researching states m aintained firmly that research other than research

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concerning resources should not be subject to the consent of the coastal state. D eveloping countries not only resisted this stand but sought a strengthening of the Revised SNT in favour of a consent regime...Discussion of these issues...appeared to produce a divergence rather than a convergence of views’.183

The US defence department was particularly concerned that without a clear statement that the exclusive economic zone was part of the high seas an extensive definition of coastal states rights on research, when combined with the already extensive definition of such rights over living and non-living resources would produce the functional equivalent of territorial seas, thus affecting military research and military navigation rights in the EEZ. Secretary of State Kissinger in fact privately told delegations from groups seeking such controls that the US would not ratify a treaty which contained the RSNT articles on M S R .184 Australia was directly involved in the search for a compromise in numerous fora— inform al plenary m eetings,185 in a group of between 30 and 50 delegations ( ‘Friends of the Chairman’ group), in a ‘special group of heads of delegations’ created by the Chairm an186 and finally in private meetings convened by Australia with moderate coastal states. The negotiations focussed on trying to define those situations where the coastal state could exercise controls over researching states in the EEZ or on the shelf. Late in the negotiations the Chairman (Yankov from Bulgaria) presented what he called his ‘test proposal’ as an amalgamation of the main texts considered by the group.187 His proposal reproduced article 60(i) of the RSNT but sought to place greater restrictions on