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2 Ocean L. Memo 1 (1975)

handle is hein.journals/ocoaslme2 and id is 1 raw text is: Ocean Law Memo PREPARED BY THE OCEAN RESOURCES LAW PROGRAM, UNIVERSITY OF OREGON LAW SCHOOL, EUGENE, OREGON 97403, AS AN ADVISORY SERVICE OF THE SEA GRANT COLLEGE PROGRAM. VOL. 2, No. 1 March 15, 1975 THE THIRD LAW OF THE SEA CONFERENCE: A PESSIMISTIC PREVIEW OF THE UPCOMING GENEVA SESSION On March 17, the Third U.N. Law of the Sea Conference (LOS 3) will re-convene for a second session in Geneva. It will continue the elusive quest for a set of treaty rules on uses of the ocean and seabed. Last summer's ten-week Caracas session can, in terms of the Conference's law-making goals, be viewed as a failure: No new treaty laws resulted. The crucial question regarding the upcoming Geneva session is, therefore, not WHAT new ocean laws will be created there, but WHETHER the meet- ing will arrive at any agreed rules at all. Only an incurable optimist would, at this moment, predict that a Law of the Sea treaty will come out of the eight-week Geneva session. In fact, the subsequent session tentatively scheduled for later in 1975 in Caracas, originally viewed as merely a treaty-signing session, has begun taking on more substantive proportions in the minds of LOS 3 participants. Some even look to further periodic LOS 3 meetings into the indefinite future. Whether any progress will be made in Geneva turns on an assessment of the reasons why the Caracas meeting failed to make law. These reasons are undoubtedly complicated, and close observers are divided on the question. It could be, as suggested by some, that many nations do not want agreement; they perhaps find it in their own interests to stall the Conference while favorable customary international law develops outside the meeting halls. Another explanation might be that the Conference is overcome by sheer numbers and complexity: Is it really possible for 140 nations to agree on 92 important agenda items? Closely related to this possible reason for the Caracas failure may have been the insistence by the United States and the Soviet Union that the LOS 3 treaty be negotiated as a package deal, which allows for possible tradeoffs across the whole 'gamut of issues but which also mandates an almost hopelessly complex LOS 3 task. Certainly one reason for the lack of progress so far was the common knowledge in Caracas that at least one further meeting of the Conference would be held in 1975; Parkinson's Law and the poker rule that cards should be played close to the vest together ensured that the compromises necessary for success would wait at least one more Confer- ence session. Or, the true optimists say, Caracas was a necessary educational session, where many nations learned for the first time about the ocean-law issues and their own stakes in the resolution of those issues. Now that they have been to school for ten weeks, and along the way picked up some lessons on the mechanics of international politicking, Geneva will see real progress and agreement. Maybe. If this last excuse is the real and only one, then Geneva will succeed and the treaty or treaties negotiated there will set the legal stage for man's ocean activities for decades to come. If, though, the other reasons are correct, the ocean is in for decades of trouble. It is not- even quite that simple, however. There are, after all, 92 items on the Conference agenda and agreement on some of these items by some nations might be obtained in Geneva, with the Conference continuing for subsequent sessions on other items. Or, failing agreement on some items, the Conference may by consensus resort to a declaration of general principles in lieu of agreement on those items. The possibilities, if not endless, are legion. PREDICTIONS In the circumstances, only a fool would attempt to forecast the outcome of the Geneva LOS 3 meet- ing. But, if for no other reason than to prove the point, here are a few predictions on a sampl- ing of LOS 3 concerns: Navigation and Straits. If there is any agree- ment in Geneva it will be that each coastal nation may claim a territorial sea twelve miles wide. However, the U.S. maintained in Caracas that it would not agree to twelve miles unless the treaty also allowed unimpeded vessel passage through the 100-plus international straits that would thereby be blanketed with one or more nations' territorial seas. There is so far every indication that the U.S. will continue this part of its package deal approach in Geneva. Since the rest of the world pretty much acknowledges 12-mile territorial seas anyhow, they are not likely to agree to-unimpeded straits transit in return for the U.S. blessing--or, for that matter, in return for much of anything else. Unless the U.S. gets its way, any agreement on a 12-mile territorial sea will be without U.S. participation. Fishin . In two or three years the United States and most other coastal nations will have 200-mile fishing zones, but not necessarily as a direct result of the Geneva meeting or any other LOS 3 session. While it is true that nearly all LOS 3 participants approve, in one way or another, broad (typically: no more than 200 miles) offshore economic zones of one sort or 10/c

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