1 This article is a sequel to Stevenson & Oxman, The Preparations for the Law of the Sea Conference, 68 AJIL 1 (1974); The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 69 AJIL 1 (1975);— The 1975 Geneva Session, 69 AJIL 763 (1975); and Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Session, 71 AJIL 247 (1977);—The 1977 New York Sessions, 72 AJIL 57 (1978);—The Seventh Session (1978), 73 AJIL 1 (1979);—The Eighth Session (1979), 74 AJIL 1 (1980).

2 The procedure is set forth in UN Doc. A/CONF.62/62 (1978), 10 third un conference on the law of the sea, Official Records 6 (1978) [hereinafter cited as OFF. REC], discussed at 73 AJIL 3 - 5 and 74 AJIL 2.

3 UN Doc. A/CONF.62/WP.10/Rev.2 (1980).

4 Following the same procedure. See note 2 supra.

5 UN Doc. A/CONF.62/WP.10/Rev.3, and Add.l and Corrs. 1-6 (1980) [hereinafter referred to in the text as the Draft Convention and in notes as DC(IT)].

6 The report of the President regarding work on the Preparatory Commission is contained in UN Doc. A/CONF.62/L.55 and Corr.l (1980). The resumed ninth session deferred consideration of the matter.

7 The U.S. proposal on the subject is set forth in Conf. Doc. IA/1 (1980).

8 See DC(IT) Arts. 74, 83, 121, and 309.

9 Deep Seabed Hard Mineral Resources Act, Pub. L. No. 96-283, 94 Stat. 553 (1980), reprinted in 19 ILM 1003 (1980).

10 Act on Interim Regulation of Deep Seabed Mining, inforce Aug. 17, 1980, [1980] BGB1.I 1429, reprinted in 19 ILM 1330 (1980).

11 The debate took place on July 28, 1980. UN Doc. A/CONF.62/SR.121 (1980).

12 74 AJIL 46-47.

13 Informal Composite Negotiating Text, 8 OFF. REC, UN Doc. A/CONF.62/WP.10 and Add.l (1977), reprinted in16 ILM 1108 (1977).

14 See 73 AJIL at 32 n . ll regarding the ideological question.

15 ICNT/Rev.l, UN Doc. A/CONF.62/WP.10/Rev.l (1979), reprinted in 18 ILM 686 (1979).

16 This concern even applies to some industrial states like the USSR and France that feel they may not be among the first and largest seabed mining countries.

17 74 AJIL 6-7.

18 DC(IT) Arts. 160(2)(f)(i), 161(7)(d), and 162(2)(n)(i). The same decision-making procedures also apply to the implementation by the Authority of Article 82, paragraph 4 on the distribution of payments to developing states parties in respect of mineral exploitation of die continental shelf seaward of 200 miles.

19 Agreement on this consumer-oriented policy was made possible by including an additional policy that conditions of market access for imports of deep seabed minerals “shall not be more favourable than the most favourable applied to imports from other sources.” While there was discussion of broader prohibitions on subsidies, the technical difficulties encountered were considerable.

20 See Art. 151 of ICNT/Rev.l, Rev.2, and DC(IT).

21 For economic and technical reasons, a limit on nickel production would affect overall production of other metals in the polymetallic nodules (copper, cobalt, and manganese). Rules and regulations can be adopted to ensure that the relevant proportions of production of other metals from nodules are not exceeded. DC(IT) Art. 151, para. 2(f).

22 The projections are derived from “trend lines” based on the most recent 15-year period for which actual nickel consumption data are available. Id., para. 2(b). These trend lines are computed for each plan of work at the time the production authorization is issued for that site, which may not be more than 5 years prior to the start of commercial production under that plan of work.

23 This minimum was called a “floor,” a misunderstood term. It is neither a minimum guaranteed level of seabed production nor a minimum guaranteed market share for seabed production, but rather a minimum limit on the ceiling for seabed production.

24 DC(IT) Art. 151, para. 2(b)(iv).

25 Ibid.. para. 2(e).

26 A maximum of 5 years before commercial production begins is specified.

27 DC(IT) Art. 151, para 2.

28 ICNT Art. 151, para. 1.

29 DC(IT) Art. 151, para. 1.

30 DC(IT) Art. 151, para. 1 specifies that the Authority's participation is “in respect of production in the Area,” rather than “in respect of the production in the Area” as in the ICNT/ Rev.l (emphasis added).

31 ICNT/Rev.l Art. 155, para. 6.

32 DC(IT) Art. 155, para. 4.

33 DC(IT) Art. 317. It is assumed that the United States would denounce the Convention if a new system of exploration and exploitation that the United States had not ratified were to enter into force.

34 DC(IT) Art. 155, para 5.

35 ICNT/Rev.l and DC(IT) Art. 161, para. 1.

36 Ibid. The general expectation is that the six non-Communist seats in categories (a) and (b) will be filled by the United States, Japan, and four Western European countries (probably including the Federal Republic of Germany, France, and the United Kingdom). Noting the possibility that category (c) may include major Western exporters (such as Canada), Sweden and some other Western countries that may not qualify for these categories believe they are at a disadvantage in seeking election to the Council if the criterion is not equitable geographic distribution from among all those elected outside any particular category, but equitable geographical distribution of seats in the Council “as a whole.” Because of their proportionately large contributions to financing the Enterprise, they believe they should have a better chance of being represented on the Council than the traditional allocation of seats among UN regional groups is likely to yield. While sympathetic to such arguments, the United States and other delegations were forced to assume that any effort to require more Western seats on the Council would stimulate demands for a general expansion to add “proportional” numbers of other seats. Undesirable even in principle, the expansion could unacceptably dilute the protection afforded major seabed mining states by various voting provisions. Accordingly, they opposed the change. Needless to say, the problem was presented as if the term “equitable geographical distribution” were to be applied without regard to the particular context of this Convention. It also proceeded on the assumption that a particularly important role is not envisaged in the administration of the Enterprise for technologically advanced Western consumer countries lacking substantial independent seabed mining or land-based producer interests. In reality, at least one of the assumptions is likely to be inaccurate.

37 DC(IT) Art. 161, para. 2(c).

38 This approach was incorporated in principle in the WG21 report issued at the end of the eighth session. Report on negotiations held by the Chairman and the Co-ordinators of the Working Group of 21, UN Doc. A/CONF.62/91, at 16 (1979) (setting forth UN Doc. A/CONF.62/C.1/L.26 (1979).

39 The African ideological position might have been less rigid had the African land-based producers devoted more attention to their voting power.

40 Abortive attempts were made by some delegates to break the impasse by finding alternative means to deal with the Soviet problem, such as blocking power for a unanimous regional group. Developing countries rejected any such veto for a single regional group in light of their opposition in principle to approaches analogous to the right of veto in the UN Security Council.

41 DC(IT) Art. 161, para. 7.

42 Ann. III, Art. 17, para. 1. It is in this manner that the detailed requirements for exploration and exploitation not set forth in the Convention itself (or in its annexes) are elaborated and changed. A detailed list of some of these, and relevant criteria, is contained in Annex III, Art. 17. Agreement on the consensus rule was accompanied by agreement that the list is not exhaustive. The words “inter alia” were added to the chapeau. The Draft Convention also adds general subject matter criteria for, and unifies the provisions on approval of, rules, regulations, and procedures. DC(IT) Arts. 160, para. 2(f) and 162, para. 2(n).

43 DC(IT) Art. 161, para. 7(d), (f), and (g).

44 Art. 161, para. 7(e). When it is apparent that there will be a formal objection to a proposal, provision is made for ad hoc conciliation committees composed of Council members that are to endeavor to work out a proposal that can be adopted by consensus. Ibid.

45 Except perhaps indirectly through the bargaining process.

46 DC(IT) Art. 308, para. 4.

47 Note 38 supra.

48 DC(IT) Art. 165, para. 2(b). Annex HI, Article 6(3) requires approval of plans of work that “conform to the uniform and non-discriminatory requirements established by the rules, regulations and procedures of the Authority, unless“: (1) a previous miner has received or is being considered for a plan of work for part of the area applied for; (2) part of the area applied for has been disapproved by the Council for mining because of serious environmental risks; or (3) the sponsoring state would thereby exceed the antimonopoly limits.

49 DC(IT) Art. 163, para. 11.

50 DC(IT) Art. 162, para. 2(j)(i).

51 DC(IT) Art. 162, para. 2(j)(ii).

52 In the absence of agreement to the contrary, and unless others are prescribed by the rules, regulations, and procedures of the Authority, the UNCITRAL rules apply.

53 Annex II of the ICNT/Rev.l became Annex III of the ICNT/Rev.2 and the DC(IT) as amended.

54 DC(IT) Ann. III, Art. 4, para. 2.

55 Ibid.

56 Id.,para. 3.

57 A more interesting question perhaps is the influence the ideas contained in this new article and its implementing regulations may have in the future on the application of the concept of “genuine link” not only to ships but in general, and the relevance to other efforts to find fair and effective jurisdictional techniques for dealing with multinational corporations.

58 See note 53 supra.

59 DC(IT) Ann. III , Art. 5, para. 7.

60 See ICNT/Rev. 1 Ann. II, Art. 5, para. 1(b). Since the technology is by definition not generally available on the open market, compensation for the value inherent in its restricted availability would certainly seem relevant in determining fair and reasonable commercial terms and conditions. A miner does not lose or give away his exclusive use of technology; he sells it for fair value.

61 DC(IT) Ann. III, Art. 5, para. 3(c).

62 Id., para. 3(e).

63 Ibid.

64 See note 53 supra.

65 ICNT/Rev. 1 Ann. II, Art. 7, para. 4.

66 See note 48 supra.

67 DC(IT) Ann. III , Art. 7, para. 6.

68 DC(IT) Ann. III , Art. 7, para. 4.

69 See note 53 supra.

70 DC(IT) Ann. III , Art. 11. A contract may be revised “only with the consent of the parties.” Suspension or termination of a contract is permitted only in case of “serious, persistent and wilful violations” after the contractor is afforded “a reasonable opportunity to exhaust the judicial remedies available to him,” or in cases of failure to comply with a final binding dispute settlement decision applicable to the contractor. DC(IT) Art. 153, para. 6; Ann. III, Arts. 18 and 19. Annex III, Article 18 was revised to make clear that monetary penalties are an alternative to suspension or termination of a contract in all cases of contract violation.

71 Annex III of the ICNT/Rev.l became Annex IV of the ICNT/Rev.2 and the DC(IT) as amended.

72 DC(IT) Ann. IV, Art. 10, para. 3.

73 See note 71 supra.

74 DC(IT) Ann. IV, Art. 11, para. 3(g). This provision is modeled after similar provisions included in recent international commodity agreements and the Common Fund in response to the revision of the Articles of Agreement of the International Monetary Fund. Sec Art. 1, para. 9 of the Agreement Establishing the Common Fund for Commodities, UN Doc. TD/IPC/ CF/CONF/24 (1980); Art. XXX(f) of the Articles of Agreement of the International Monetary Fund, as amended by Resolution 31-4 of the Board of Governors, effective April 1, 1978, UN Doc. IMF(091)A7. A number of other improvements were made in the text on financing the Enterprise. While the basic provision that the Enterprise will initially be afforded the funds necessary to explore and exploit one mine site through interest-free loans and loan guarantees from states parties is retained, the text now specifies that the draft rules, regulations, and procedures prepared by the Preparatory Commission shall include the precise overall amount and anv criteria and factors for its adjustment. Id., para. 3(a). Thus, states will have a better idea of their precise obligations without its being necessary to deal with the question (including the problem of inflation) in the Convention. In addition, the financial obligations of any one state cannot exceed its percentage under the UN scale of assessments at the time, which has a maxi mum of 25% (the U.S. share). Voluntary measures to deal with any shortfall caused by the failure of all UN members to ratify can be adopted only by consensus in the Assembly. Id., para. 3(b) and (c). While states need to supply promissory notes for the full amount of their share of the total interest-free loans at the outset, the Enterprise will call up the funds under the notes gradually in accordance with a schedule reflecting its requirements. Id., para. 3(d). Provision is made for preparing a schedule for repayment of the interest-free loans. Id., para. 3(f).

75 ICNT/Rev. 1 Ann. III , Art. 12, para. 5.

76 DC(IT) Ann. IV, Art. 13, para. 7.

77 Id., para. 5.

78 Questions also arise regarding the immunities of the Authority from taxation. These were resolved (DC(IT) Art. 183) by using the language of the Common Fund Agreement as a model. See Art. 48, paras. 1-3 of the Agreement Establishing the Common Fund, supra note 74.

79 DC(IT) Ann. IV, Art. 13, para. 4(d).

80 Id., para. 4(a).

81 ICNT/Rev.l, Ann. II, Art. 6, paras. 3(d) and 4.

82 The scope of the clause was clarified to apply only to plans of work actually held by a state, not those that were approved but are no longer held by it, and only to nonreserved sites. DC(IT) Ann. III , Art. 6, para. 3(c). The “antidensity” clause was reformulated as 30% of a circular area of 400,000 square kilometers surrounding the center of the proposed site. Ibid. The percentage of the total unreserved area of the seabed that can be held was reduced from 3% to 2%. Ibid. A reference was added to avoiding “discrimination against any State or system” in cases of selection among applications for production authorizations. Id., Art. 7, para. 5. A new clause permits the Authority to adopt rules, regulations, and procedures to deal with cases where selection among competing applicants is necessary after the end of the period during which the interim production limitation is in effect (presumably because of limits in a commodity agreement to which the Authority is party). Id., Art. 6, para. 5. A consensus in the Council is of course required for adoption of such rules, regulations, and procedures. DC(IT) Arts. 161, para. 7(d), and 162, para. 2(n)(ii).

83 See 74 AJIL at 7.

84 See discussion in id. at 19-22; DC(IT) Art. 76.

85 DC(IT) Art. 76, para. 3.

86 Id., para. 6. An interesting question regarding these texts is when, if ever, a submarine ridge that is not a natural component of the continental margin is nevertheless part of the continental margin despite the exclusion from the continental margin of the “deep ocean floor with its oceanic ridges.” It is possible that lying beneath the seeming contradiction there may be some subtle questions regarding the nature of evidence required and the extent of the risk, particularly if sedimentary rock that may have broken off from the continental margin is discovered to have collected within ridge formations or is presently “hidden” by a basaltic layer. Thus, uncertainty as to whether a particular “submarine ridge” is an “oceanic” ridge of “the deep ocean floor,” or whether a particular sedimentary formation is part of the continental margin, would not have potentially sweeping consequences of extending jurisdiction the length of the ridge under the 2500-meter-plus-100-mile test, but might result “at worst” in extending jurisdiction from 200 miles to 350 miles, a lesser but nevertheless serious result.

87 As a neighbor of the Soviet Union (the main proponent of an amendment on ridges), the United States ensured that there was in fact common understanding between the delegations regarding the effect of this language in relevant areas before supporting it. The proposed paragraph 5 bis (now Article 76, paragraph 6) reads as follows: Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. The U.S. Representative, Ambassador Richardson, made the following statement on the record in Plenary on April 3, 1980: Our support for the proposal regarding the continental shelf contained in Ambassador Aguilar's report rests on the understanding that it is recognized—and to the best of our knowledge there is no contrary interpretation—that features such as the Chukchi plateau situated to the north of Alaska and its component elevations cannot be considered a ridge and are covered by the last sentence of the proposed paragraph 5 bis. Interested delegations were notified in advance that the statement would be made. There was no dissent as to its substance.

88 See Conf. Doc. C.2/Informal Meeting/65 (1980).

89 The technique of a consensus statement of understanding was used because some delegations were reluctant to reopen discussion of the text of the Convention on the limits of the continental shelf.

90 DC(IT) Ann. II.

91 DC(IT) Art. 76, para. 8.

92 DC(IT) Ann. II, Art. 2.

93 Id., Art. 4.

94 Id., Arts. 5 and 6.

95 DC(IT) Art. 76, para. 8.

96 Id., para. 9.

97 Commission On Marine Science, Engineering And Resources, Our Nation And The Sea: A Plan For National Action, and 3 Panel Reports (1969).

98 DC(IT) Ann. H, Art. 8.

99 Id., Art. 2.

100 If requested, the Commission may aid the coastal state in preparing its data for submission. Id., Art. 3(b). In any event, a representative of the coastal state making the submission may participate in relevant proceedings without the right to vote. Id., Art. 5.

101 See 74 AJIL at 23 for a discussion of the problem and the alternative proposal by the U.S. delegation. See also note 18 supra.

102 The President's explanatory memorandum to the ICNT/Rev.2, paragraph 10 states that the Chairman of the Second Committee expressed reservations regarding the incorporation of the new provisions into the ICNT/Rev.2.

103 The criteria for incorporation of a revised text set forth in Doc. A/CON F.62/62 are discussed by the author in 73 AJIL at 4 - 5 and 74 AJIL at 2.

104 ICNT/Rev.2 and DC(IT) Art. 74, para. 3, and Art. 83, para. 3. See 74 AJIL at 5.

105 DC(IT) Art. 309 and n.l.

106 DC(IT) Art. 121, para. 2.

107 Id., para. 3.

108 ICNT/Rev.2 and DC(IT) Art. 298, para. 1(a).

109 Ibid. While the exclusion for land territory disputes is drafted so that it does not literally apply to adjudication or arbitration under the Convention when a state does not elect to reject such procedures, it would seem that this is a mere drafting point. In any event, the same result seems implicit in the fact that the jurisdiction of a judicial or arbitral tribunal under the Convention is limited to the interpretation or application of the Convention. The Convention does not deal with questions of sovereignty or other rights over continental or insular land territory—questions that can hardly be regarded as incidental or ancillary.

110 DC(IT) Art. 65 is the same as the draft text in 74 AJIL at 5 n.23 except that the words, “In this connexion,” have been deleted from the start of the second sentence.

111 DC(IT) Art. 25, para. 3 adds the words “including weapons exercises.” See 74 AJIL at 4 - 5 and n.22.

112 Conf. Doc. C.2/Informal Meeting/43/Rev. 1 (1979). See 74 AJIL at 23 n.79.

113 Discussed infra at p. 242.

114 The proposed amendments are as follows. Article 42(l)(b): change “applicable” to “generally accepted” international regulations (as, for example, in Art. 39(2)(b)). The English Language Group of the Drafting Committee has already included this in its recommendation on harmonization of these terms in various articles. Conf. Doc. ELGDC/4 (1980). Article 42(l)(b): delete the word “oily” in the phrase “oil, oily wastes and other noxious substances.” Article 221: make clear that the international law right of intervention following upon a maritime casualty is preserved not only beyond the territorial sea but within the territorial sea in straits. The main problem here was to find a way to draft around the position of a few coastal states that the right of intervention is inherent in their sovereignty in the territorial sea, and thus ought not to be mentioned in connection with a provision dealing with other areas. Article 233: make clear that the exclusion of sections 5, 6, and 7 of the pollution text from application to “the legal regime of straits used for international navigation” refers to passage, not to activities other than passage, which would conform it to the general principle stated in Article 34, paragraph 1 and the rule in Article 38, paragraph 3.

115 See DC(IT) Art. 63, para. 2.

116 A compromise effort to redraft Article 63, paragraph 2 to bring it into closer conformity with Article 117 (which applies to all conservation problems beyond the economic zone) encountered belated opposition, but may be considered again.

117 See 74 AJIL at 24-29.

118 UN Doc. A/CONF.62/91, at 75 (1979), setting forth UN Doc. A/CONF.62/L.41 (1979).

119 Id., Art. 24b bis.

120 DC(IT) Art. 246, para. 6.

121 DC(IT) Art. 297, para. 2(a).

122 Id., para. 2(b). Furthermore, the text makes clear that the phrase “in normal circumstances” refers to the state of relations between the researching state and the coastal state by adding language stating that the absence of diplomatic relations between them does not necessarily mean that circumstances are not normal. A crucial change was made in paragraph 2 of Article 249, which now states that (1) only with respect to those research activities specified in paragraph 5 of Article 246 may the coastal states impose obligations additional to those contained in its paragraph 1; and (2) limitations on international release of research findings apply only to results of direct significance for exploration and exploitation and these limitations must be reasonable. Finally, the broadly stated obligation in Article 249 to assist coastal states in assessing research results has been appropriately clarified by allowing a choice of methods. This would be a one-time obligation for each research project, not a continuing one.

123 DC(IT) Art. 253.

124 DC(IT) Art. 297, para. 2.

125 See ICNT/Rev.l Art. 247.

126 See DC(IT) Art. 247.

127 Id., Art. 252.

128 DC(IT) Art. 300.

129 Conf. Doc. GP/2 and Rev.l (1980). An innocuous reference to “all relevant circumstances,” which surely have to be considered in determining the existence of abuse, nevertheless had to be removed because of objections from delegations that prefer to emphasize equidistance rather than relevant circumstances in the Convention's articles on delimitation of the economic zone or continental shelf between states with opposite or adjacent coasts. There was an air of arrière pensée in this skirmish, perhaps related to the possibility that in the end the Convention may contain no articles at all on delimitation between neighboring states, or that reservations will be permitted to those articles. Article 300 contains a slight drafting problem that arose in repeated translation between Spanish and English. It requires good faith discharge of obligations entered into “in conformity with this Convention.” That language is intended to refer to obligations under the Convention itself.

130 DC(IT) Art. 301.

131 The President was not successful in his attempt to persuade the conference to insert the word “act” here in order to correct what he felt was an error in the wording of the Charter itself.

132 ICNT/Rev.l and DC(IT) Arts. 39, para. 1(b) and 54.

133 ICNT/Rev.l and DC(IT) Art. 19, para. 2(a).

134 ICNT/Rev.l and DC(IT) Arts. 58, para. 2 and 88.

135 ICNT/Rev.l and DC(IT) Art. 141.

136 In light of the general application of the new clause to the overall behavior of states at sea, it was considered more appropriate to use the Charter word “inconsistent” (with the principles of international law embodied in the Charter) than the term “in violation” (of those principles) which is used in the specific operational context of particular ships in innocent passage or particular ships or aircraft in transit passage or archipelagic sea lanes passage. Compare DC(IT) Arts. 19, para. 2(a) and 39, para. 1(b) with Art. 301.

137 Conf. Doc. GP/3 (1980).

138 Treaty Establishing the European Economic Community, in force Jan. 1, 1958, 298 UNTS 11, Art. 223, para. 1(a).

139 DC(IT) Art. 302.

140 Preservation of the right to “resort to” dispute settlement procedures specifically refers to a jurisdictional issue such as might arise under one of the optional exceptions to third-party settlement in DC(IT) Art. 298. These words limit the application of this “no prejudice” clause to the right to bring the action. The “no prejudice” clause does not apply to the gathering of evidence in the exercise of that right; one of the reasons for the article is to protect a state from any requirement to produce security information in evidence.

141 Developing country jurists, of course, were quick to point out that these textual safeguards did not and logically could not have the effect of requiring or coercing a state to reveal secret information to foreign nationals or others in order to show its good faith, or of punishing it for failure to do so. They nevertheless felt that the result was an important political restraint on abuse, in particular in applying the exclusion to the obligation to transfer deep seabed mining technology. The President was referring to this good faith requirement in his report when he said that the exclusion does not detract from the transfer of technology obligations. UN Doc. A/CONF.62/L.58 (1980).

142 Art. 149 of the DC(IT) and its predecessor texts.

143 Even so, Article 149 reveals that the “internationalists” obtained a reference to the “benefit of mankind as a whole” but no role for the Sea-Bed Authority, while the various “States of origin” obtained an exhortation that “particular regard” be paid to their “preferential rights” but that fell short of confirming any particular right or proprietary interest.

144 See note 112 supra.

145 145 Conf. Doc. GP/4 (1980).

146 Particularly for a state that might not extend its territorial sea to 12 miles.

147 Art. 33 of the DC(IT) and its antecedents.

148 The rights of the coastal state in the contiguous zone do not apply as such to archaeological objects found there. These rights are limited to exercising the control in the zone necessary to prevent and punish infringement within its territory or territorial sea of its customs, fiscal, immigration, or sanitary regulations. Ibid.

149 There would then arguably be less doctrinal basis for preventing a gradual expansion of the legislative competences of the coastal state in the zone with respect to matters not included within its economic zone and continental shelf rights, and thus inevitably in the direction of a territorial sea.

150 L. Fuller, Legal Fictions (1967), contains a classic analysis of the subject of legal fictions that was being read at the time this conceit was formed. Appearing as it does in a public law convention of organic character, the conceit ought (for better or worse) to be treated as a true fiction—a rule of law—rather than as a rule of evidence.

151 DC(IT) Art. 303.

152 The term “archaeological objects and objects of historical origin” is not defined. It is a reformulation of the term “objects of an archaeological and historical nature” that appears in the deep seabed mining text (Art. 149). The provision is not intended to apply to modern objects whatever their historical interest. Retention of the adjective “historical” was insisted upon by Tunisian delegates, who felt that it was necessary to cover Byzantine relics that might be excluded by some interpretations of the word “archaeological.” Hence, the term historical “origin,” lacking at best in elegance, when used with the term “archaeological objects” in an article that expressly does not affect the law of salvage, does at least suggest the idea of objects that are many hundreds of years old. The article contains no express time limit. As time marches on, so does our sense of what is old. Nevertheless, given the purpose for using the term “historical,” it may be that if a rule of thumb is useful for deciding what is unquestionably covered by this article, the most appropriate of the years conventionally chosen to represent the start of the modern era would be 1453: the fall of Constantinople and the final collapse of the remnants of the Byzantine Empire. Everything older would clearly be regarded as archaeological or historical. A slight adjustment to 1492 for applying the article to objects indigenous to the Americas, extended perhaps to the fall of Tenochtitlan (1521) or Cuzco (1533) in those areas, might have the merit of conforming to historical and cultural classifications in that part of the world.

153 There is no reference to disposal, and accordingly no reference either to the benefit of mankind or to the rights of various states of origin as in Article 149. Recognizing that a convention on the law of the sea can deal with only a small part of the broader issue of protection and disposal of archaeological objects, Article 303 “is without prejudice to other international agreements and rules of international law regarding the protection of archaeological objects and objects of historical origin.“

154 Spain and Morocco are correct that this would be a misinterpretation. The function of the responsibility provision in the straits articles is to make clear that no enforcement action may be taken against a ship or aircraft entitled to sovereign immunity, and that the appropriate remedy lies in the international responsibility of the flag state. DC(IT) Art. 42, para. 5; accord Art. 233.

155 DC(IT) Art. 286.

156 Among these is the question of using ad hoc chambers of the Sea-Bed Disputes Chamber in cases involving the Authority. The Group of Legal Experts on Settlement of Disputes concerning First Committee matters was unable to finish this work because of the press of other First Committee business. In light of points raised by the Argentine and Canadian delegations regarding fisheries beyond the exclusive economic zone, there may be a desire to emphasize on the record that the power of a court under Article 290 to prescribe provisional measures pending final adjudication in order “to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment” includes the power to order provisional conservation measures to protect the fish stocks. In this connection, it should be noted that the Chairman of the Third Committee has already reported a consensus that the term “marine environment” includes marine life. 10 OFF. REC. 97 (1978). It might also be noted that there is precedent for such action in the Icelandic Fisheries Jurisdiction case, [1974] ICJ REP. 3.

157 Ranging from the right to obtain prompt release of a seized oil tanker without awaiting exhaustion of local remedies (Art. 292) to the right to ensure compliance with environmental standards (Art. 297, para. 1(c)).

158 Conf. Doc. FC/20 (1980).

159 DC(IT) pt. XVII.

160 DC(IT) Art. 306. In this discussion references to ratification include accession.

161 While the conference will inevitably hope to avoid reopening “settled” issues, it is possible that a coalition of developing and developed countries that are interested in avoiding delay in the entry into force of the Convention may agree to reduce the number in the context of agreement on other matters designed to facilitate its entry into force.

162 DC(IT) Art. 137.

163 DC(IT) Ann. Ill, Art. 6, para. 1 and Art. 7, para. 1.

164 UN Doc. A/CONF.62/L.55 and Corr.l (1980); Conf. Docs. PC/1, PC/2, and Corr.l (1980).

165 DC(IT) Art. 308, para. 4. The significance of this provision is immediately apparent when one considers that the new text of Article 161 requires consensus in the Council of the Authority for the adoption of rules, regulations, and procedures.

166 DC(IT) Art. 308, para. 3.

167 Substantively, it would have given the Soviet Union, but no other country, effective power to control entry into force of the Convention. Procedurally, it would have complicated the already deadlocked negotiations in the First Committee regarding Council voting.

168 Conf. Doc. FC/20 (1980). The precise language suggested by the Chairman of the Group of Legal Experts was not the subject of negotiation, since most debate concentrated on the underlying option. It seems reasonably clear that the provision applies only in case it is impossible, from among the parties to the Convention, to satisfy all of the requirements regarding Council composition in a manner consistent with Article 161. It also seems reasonably clear that a deviation from strict compliance with Article 161 is only permissible to the extent it is necessary to deal with the effect of the absence from among parties to the Convention of one or more states necessary to satisfy a particular requirement. While the term “first Council” is unclear, it also seems reasonably clear that the deviation from strict application of Article 161 can persist only as long as the absence that necessitated it persists. If a state ratifies the Convention after entry into force, and if its election to the Council would result in elimination of at least one reason for deviation from strict application of Article 161, then it should be elected to the Council as soon as practicable, and the arrangements made to deal with its absence eliminated. What is not clear is the precise meaning of the phrase “in a manner consistent with the purpose of article 161.” The main reason for this is that it is difficult to determine in advance the precise nature of the problem, given the large number of alternative possibilities. Since any deviation from the strict requirements of Article 161 could have a major effect on the legitimacy and effectiveness of the Authority during the delicate initial period of its existence, one presumes that all concerned would make every effort to ensure that the arrangements on Council composition command a consensus, including in particular the support of those states parties that are members of the group affected. The need to obtain the support of such states is, if not explicitly stated, then certainly implicit in the new provision in Article 161, paragraph 2(c), which specifies that each group of states parties to be represented on the Council is represented by those members, if any, which are nominated by the group.

169 DC(IT) Art. 308, para. 3. The President of the conference, recognizing the close links between this issue and the negotiations in the First Committee regarding the Council, solicited the views of the Chairman of the First Committee on this matter during the resumed session. The First Committee Chairman recommended that “there be no modifications in the text pending further negotiations concerning article 161.” It is possible to interpret that recommendation as meaning either no change from the current ICNT, which contained no provision dealing specifically with composition of the Council in connection with entry into force of the Convention (ICNT/Rev.2 Art. 301), or no change from the clause recommended by the Chairman of the Group of Legal Experts on Final Clauses. The President apparently chose the latter interpretation. The collegium as a whole, of course, decided on all the new articles incorporated into the DC(IT).

170 DC(IT) Art. 308, para. 1.

171 Under the Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969), entered into force Jan. 27, 1980, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969), a reservation is defined as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Art. 2(l)(d).

172 An uninitiated observer listening to the debate might have reached a different conclusion, since a number of vocal speakers argued passionately in favor of some reservations. Upon closer analysis, however, one recognized that a large majority of those speakers were from one of two groups. Some spoke for delegations that have yet to reconcile themselves on the record to particular provisions to which there is simply no chance that reservations would be permitted (e.g., the 12-mile territorial sea, transit passage of straits, the protections for coastal state fisheries interests). Others—indeed the more numerous group—are deeply engaged in ongoing negotiations regarding delimitation of the economic zone and continental shelf between states with opposite or adjacent coasts. For substantive or tactical reasons, these delegations do not wish to close the door on the possibility of reservations to the delimitation articles (and perhaps to Article 121 on islands and rocks).

173 The explanatory memorandum of the President states that, for an article to be construed as permitting a reservation or exception, it must use the word. UN Doc. A/CONF.62/L.58 (1980). The reference to exceptions is intended to cover the optional exceptions to the Convention's dispute settlement procedures set forth in Article 298. The reason for this reference to “exceptions” is basically political, not legal. It serves as a reminder that the chapter on settlement of disputes itself contains, as part of the substantive package, the functional analog to an elaborate provision on reservations to that chapter. The reference to exceptions also enables delegations that oppose all reservations to accept the provision at present as drafted, since the final Convention (Art. 298) clearly will allow “exceptions” even if it does not allow reservations. Should there be no other article in the end that specifically permits reservations, the reference to exceptions preserves the technical accuracy of this article and thus could help save the conference from the potentially difficult task (albeit not the technical desirability) of achieving consensus on changing the text and deleting the cross-reference to other articles at the last minute. None of these political considerations, of course, may justify confusing reservations and exceptions from the perspective of legal draftsmanship. A footnote states that the “article can be regarded only as provisional pending the conclusion of discussion on outstanding substantive issues such as that relating to the delimitation of maritime zones as between adjacent and opposite States and to settlement of disputes thereon, where the final solution might include provision for reservations.” The footnote also states that the article is based on the assumption that the Convention will be adopted by consensus. Delimitation issues aside, the reference to consensus in this context is understood by some delegations to mean that the so-called transitional provision will not appear in the Convention.

174 Including, but not limited to, “the harmonization of national laws and regulations with the provisions of” the Convention.

175 DC(IT) Art. 310. This text is derived from the definition of a reservation in the Vienna Convention on the Law of Treaties, note 171 supra.

176 DC(IT) Art. 311.

177 See id., Arts. 74, para. 4 and 84, para. 4.

178 Supra note 171, Art. 30. The rule regarding third parties is drawn from Art. 41(l)(b) rather than from Art. 30(4)(b).

179 Art. 41.

180 This provision also states that such agreements “shall not affect the application of the basic principles embodied in this Convention.” DC(IT) Art. 311, para. 3. This confusing clause does not seem to add anything not already contained in the two conditions. If the clause is re tained, the use of the term “shall not” distinguishes it from the term “do not,” which appears before the two conditions for such agreements, and therefore provides the textual basis for concluding that it is an elaboration on the effect of the two conditions rather than an additional condition.

181 This text emerged from a surprisingly unemotional and nonideological debate about the value of the 1958 Geneva Conventions in general. The text means that the new Convention prevails in its entirety over the old, but that it is properly interpreted against the background of the 1958 Geneva Conventions, which constituted either the basis or the point of departure for most of the new Convention.

182 DC(IT) Art. 311, para. 6.

183 See 74 AJIL at 38-40; Vienna Convention, note 171 supra, Arts. 53, 64.

184 It also does not restrict the right of parties to the Convention to be party to prior or future agreements regarding deep seabed mining so long as the agreements are applied in a manner that does not derogate from the provisions of Article 136 and that is consistent with the general rules set forth in Article 311 regarding other agreements. An interesting question could conceivably arise regarding commodity agreements that have an effect (albeit indirect) on seabed production or prices to which the Authority is not a party. It is possible that upon reflection this tempered the enthusiasm for a jus cogens provision among land-based producers of minerals.

185 DC(IT) Art. 317.

186 “Activities in the Area” is defined as “all activities of exploration for, and exploitation of, the resources of the ‘Area.'” DC(IT) Art. 1. The “Area” is defined as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. Ibid. While this is generally understood to mean the seabed and subsoil beyond the limits of the continental shelf, as defined in Article 76 (except pursuant to Article 121(3) in the case of certain rocks), the Drafting Committee is still considering the matter.

187 The first category applies to amendments relating only to matters other than activities in the Area. The absence of the word “exclusively” from the first category is correct. It would be incorrect to state that the first category applies to amendments other than those relating “exclusively” to activities in the Area, as this would permit the procedures applicable to the first category to be used for “mixed” amendments to circumvent the procedures applicable to the second category. While the text of the DC(IT) is accurate, one could also delete the word “exclusively” from the second category without changing the meaning.

188 DC(IT) Art. 312, para. 1.

189 Appended to the Rules of Procedure, UN Doc. A/CONF.62/30/Rev.2 (1976), reprinted in 73 AJIL 3n.ll .

190 DC(IT) Art. 312, para. 2.

191 Id., Art. 313.

192 Id., Art. 315, para. 2. See note 160 supra.

193 DC(IT) Art. 316, para. 1.

194 Given its negotiating history as an effort to accommodate those favoring qualitative requirements, the term “larger number” is properly understood to refer to qualitative as well as quantitative requirements additional to those specified in the Convention.

195 DC(IT) Art. 155.

196 Ibid., Art. 314.

197 Id., Art. 161, para. 7(d).

198 Id., Art. 315, para. 2.

199 Amendments to Annex VI, the Statute of the Law of the Sea Tribunal, also enter into force for all states parties. Such amendments can only be adopted by consensus at a conference or by the simplified “no objection” procedure, or, in the case of the Sea-Bed Disputes Chamber, by the procedure applicable to seabed mining amendments. DC(IT) Ann. VI, Art. 42.

200 There was also some private discussion of whether states could withdraw their instruments of ratification during the 1-year period in order to avert denunciation of the Convention by others. One suggestion was that it might be prudent for seabed mining amendments to contain a provision authorizing the Council of the Authority to delay their implementation where necessary to avoid prejudice to the effectiveness or universality of the Convention, or simply authorizing the Council to fix the date for their application after their entry into force.

201 The transitional provision accordingly is not a part of the Convention pursuant to Article 318, which incorporates only the annexes by reference.

202 74 AJIL 40-45.

203 The reports of the Drafting Committee are in UN Docs. A/CONF.62/L.40 (1979), L.56, L.57/Rev.l, and L.63/Rev.l and Corr.l (1980). The conference documents containing the reports of the six language groups were initially identified by the symbol LGDC, but soon were divided as follows: ALGDC (Arabic), CLGDC (Chinese), ELGDC (English), FLGDC (French), RLGDC (Russian), and SLGDC (Spanish). This article was completed prior to the meeting of the committee that began Jan. 12, 1981.

204 DC(IT) Art. 320.

205 The concern of the former group was that the negotiation of a long preamble could revive and stimulate ideological disputes and bog down in efforts by delegations to color the interpretation of the substantive articles. The structural accommodation successfully pursued by the President involved a somewhat longer preamble than in the ICNT, but on the understanding that objectionable “code words” could not be used, and that the Preamble could not reflect or emphasize only one point of view.

206 While economists may differ as to whether all aspects of the Convention are fully consistent with those goals, the important point is that to the extent the Preamble is a guide to the values to be applied in interpreting the text of the Convention, those values include both equity and efficiency in utilization of ocean resources.

207 Two interesting drafting problems arose. One concerned the verb to be used in referring to the principles contained in the Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Sub-soil thereof, beyond the Limits of National Jurisdiction, GA Res. 2749 (XXV) (1970). The declaration calls for a convention to “give effect” to the principles. Some countries feared that the use of such a term might be interpreted to imply that the principles can be ignored pending entry into force of the Convention. The conference settled naturally enough on the verb summum bonum: “Desiring by this Convention to develop the principles embodied in” the declaration (emphasis added). The second problem concerned the ICNT preambular clause that matters not regulated by the Convention continue to be governed by “customary international law.” While the substance of the principle was generally acceptable, in the course of the technical redrafting the term was changed to “general international law” because a few delegations from newly independent countries had a philosophical aversion to the implication of antiquity in the word “customary.“