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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

VOL. 2, No. 1

March 15, 1975


      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

      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.


    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


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