1 This article is a sequel to Stevenson, & Oxman, , The Preparations for the Law of the Sea Conference, 68 AJIL 1 (1974)Google Scholar; 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)Google Scholar; — 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);— The Ninth Session (1980), 75 AJIL 211 (1981).

2 The collegium consists of the President of the conference, the Chairmen of the three main committees, the Rapporteur–General, and the Chairman of the Drafting Committee.

3 UN Doc. A/CONF.62/WP.10/Rev.3 (1980) [hereinafter cited as DC(IX)]. The procedure is set forth in UN Doc. A/CONF.62/62 (1978), 10 Third United Nations Conference on the Law of the Sea, Official Records 6 (1978) [hereinafter cited as Off. Rec] , discussed in 73 AJIL at 3–5 and 74 id. at 2. The ninth session is discussed by the author at 75 AJIL 211, note 1 supra.

4 UN Doc. A/CONF.62/BUR.13/Rev.l (1980).

5 See DC(IT) Arts. 15, 74, 83, 121, 298(1)(a), and 309.

6 Soviet allies in the Asian Group expressed reservations but did not prevent the nomination by consensus.

7 This reaction is mistakenly perceived by some as merely a reference to personalities.

8 Statement by Mr. Inam Ul–Haque (Pakistan) on behalf of the Group of 77, Informal Plenary, Aug. 10, 1981 (copy supplied by the speaker).

9 Testimony by Ambassador James L. Malone before the Subcommittee on Oceanography of the House Merchant Marine and Fisheries Committee, April 28, 1981 (copy circulated by the Department of State).

10 Statement by Ambassador Jens Evensen (Norway), Informal Plenary, Aug. 10, 1981 (copy supplied by the speaker).

11 Ibid.

12 I believe that analogies from the aforementioned Vienna Convention on the Law of Treaties are helpful in this connection. During our negotiations for a package–deal our states were represented by their respective ambassadors to the United Nations or with specially appointed heads of delegation who had full powers to negotiate, of course with the limitation this entails as to adoption, signature and ratification. But at least there were widespread assumptions and expectations that states would stand by their commitments given in compromise negotiations. If not the whole package–deal principle would be a hoax. Thus, in a sense the Vienna Convention art. 7 on full powers is applicable to the package deal negotiations. We who represented our respective Governments had full powers in relation to the package–deal commitments.

I feel that analogies from art. 18 of the Vienna Convention likewise are appropriate. Article 18 states that when a state has signed a treaty it is obligated to refrain from acts that “defeat the object and purpose” of that treaty. Would not similar consideration of equitable behavior entail that wholesale renunciation of perhaps the most essential part of the package–deal, namely part XI, should be considered to defeat “the object and purpose” of the gentleman’s agreement we arrived at in 1973?

Ibid. 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).

13 Statement by Deputy Foreign Minister Semyon P. Kozyrev (USSR), General Committee, Aug. 3, 1981 (informal English translation supplied by Soviet delegation).

14 Statement by Mr. Ul–Haque, note 8 supra.

15 Letter from Dr. Andrzej Olszowka (Poland) on behalf of the Group of Socialist Countries of Eastern Europe, Aug. 20, 1981, forwarding the decision by the group adopted at its meeting on Aug. 18, 1981. UN Doc. A/CONF.62/L.77 (1981).

16 The logic of these arguments tends to restrain the temptation to threaten to change the substance of the compromise in a manner detrimental to the reluctant party. In this case, the temptation is further reduced by the knowledge that, in terms of altering substantive articles, it is virtually impossible to shoot at the United States without hitting the Soviet Union, major U.S. allies, and powerful developing countries. Nevertheless, as the East European statement on voting demonstrates, it is not inconceivable that the Soviet Union would—in “zero–sum” terms—accept some injury for the sake of inflicting greater harm on its adversaries. It did exactly that on the issue of marine scientific research in a fit of pique at the United States; the same could happen again.

17 Statement by Ambassador James L. Malone (U.S.), Informal Plenary, Aug. 5, 1981 (copy circulated by U.S. delegation).

18 Testimony by Ambassador Malone, note 9 supra.

19 Statement by Ambassador Malone, note 17 supra.

20 Statement by Ambassador Malone, Plenary, March 17, 1981 (copy circulated by U.S. delegation).

21 Testimony by Ambassador Malone, note 9 supra.

22 Statement by Ambassador Malone, note 17 supra.

23 Mr. Oxman (United States of America) said that his Government was certain that its policy review would not be completed before the autumn of 1981 and felt that it would be advantageous if all delegations were to engage in bilateral and multilateral consultations before taking a final position. Accordingly, the United States believed it would be preferable to delay the next session until early in 1982; at that time his Government would be able to state its definitive views. However, it had become clear to his delegation that others wished to have a session of the Conference in August. While his delegation had taken those views into account, it was not prepared to regard the August session as the final one. . . . An August session for the purpose of informal consultation could contribute to an understanding of the views of others before final decisions were made. The review would be completed after that. . . .

General Committee, Apr. 14, 1981, UN Doc. A/CONF.62/BUR/SR.62 (1981) (prov.).

24 Statement by Ambassador Malone, note 17 supra.

25 Statement by Professor Riphagen (Netherlands), Informal Meeting, Aug. 17, 1981 (copy supplied by speaker).

26 Testimony by Ambassador Malone, note 9 supra.

27 Testimony by Ambassador Elliot L. Richardson, House Foreign Affairs Committee, May 14, 1981 (copy supplied by witness). He identified the following as the “most frequently repeated misstatements”:

1. That the treaty would not give the U.S. assured access to seabed minerals. In fact, the text expressly gives companies sponsored by a member state the right to apply for a “plan of work,” spells out the qualifications of applicants in clear, objective terms, and directs the International Seabed Authority to approve a plan of work proposed by an applicant meeting the specified financial and technical standards.

2. That the U.S. would not be assured of a seat on the Council of the Authority although the Eastern bloc would be guaranteed three seats. Actually, the provisions for membership on the Council would assure the Western industrial countries six to nine seats; each interest group whose representation is required would designate its own representatives. The United States, either as the probably largest investor in deep–seabed mining (one of the represented interest groups) or as the largest importer or consumer of deep seabed minerals (a second interest group), would have as much practical assurance of being named to one of these groups as would the Soviet Union of being named as one of the Eastern bloc representatives.

3. That U.S. companies would be required to sell sensitive national–security–related technology. On the contrary, the U.S. Government would presumably deny an export license for any such sale. The text provides that “nothing in this Convention shall be deemed to require a State Party, in the fulfilment of its obligations under the relevant provisions of this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.”

4. That a company seeking an ocean–mining contract would be required to transfer its technology without adequate compensation. In fact, the technology–transfer obligation applies “only if the Enterprise finds that it is unable to obtain the same or equally efficient and useful technology on the open market” and then only on “fair and reasonable commercial terms and conditions,” subject to binding commercial arbitration of any dispute as to those terms and conditions. In passing, I would note that a number of companies have already come forward to offer seabed mining systems to the future Enterprise.

28 Ambassador Evensen added the point that the selection should cease to apply if the state denounces the Convention.

29 For the Sea-Bed Authority, the votes on the first ballot were: Fiji, 14; Jamaica, 69; Malta, 56; abstentions, 5; blank, 1; on the second ballot: Jamaica, 76; Malta, 66; abstentions, 5. For the Tribunal, the votes on the first ballot were: FRG, 67; Portugal, 15; Yugoslavia, 59; abstentions, 3; blank, 1; on the second ballot: FRG, 78; Yugoslavia, 61; absentions, 4; blank, 2.

30 Draft Convention, note 43 infra, Art. 74(1). Art. 83(1) contains an identical provision on the continental shelf.

31 In part because of the U.S. policy review, and in part because of concerns regarding Canadian reaction on the collegium, these advocates encouraged the appearance of distance between themselves and a U.S. delegation sympathetic to their substantive attitudes.

32 Statement by Ambassador Malone, Plenary, Aug. 28, 1981 (copy supplied by speaker).

33 Conf. Doc. FC/27 (1981) (new text in Ann. 2).

34 Id. at 1.

35 It becomes a party by signature followed by an “act of formal confirmation,” or by accession. The term “act of formal confirmation” is used in the International Law Commission’s Draft Articles on Treaties Concluded Between States and International Organizations or Between International Organizations.

36 Conf. Doc. ELGDC/26 (1981).

37 The addenda to UN Docs. A/CONF.62/L.67 and L.75 contain the recommendations of the Drafting Committee presented during the tenth session. The proposal in question is in UN Doc. L.75/Add.10, and was incorporated into the new text, note 43 infra.

38 DC(IT) Arts. 297 and 298.

39 Declaration of Principles Governing the Sea–bed and the Ocean Floor, and the Sub–soil thereof, beyond the Limits of National Jurisdiction, UNGA Res. 2749 (XXV) (1970).

40 DC(IT) Art. 85, derived from Art. 7 of the Convention on the Continental Shelf, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311, reprinted in 52 AJIL 858 (1958). Compare Art. 76 of the Draft Convention with Art. 1 of the Convention on the Continental Shelf.

41 DC(IT) Art. 298, para. 4. Art. 298(1)(a) of the ICNT had contained a requirement that a state indicate an alternative procedure that it would accept for settling delimitation disputes. This was eliminated in the ICNT/Rev.2 and subsequent texts.

42 DC(IT) Arts. 68 and 77.

43 UN Doc. A/CONF.62/L.78 (1981).

44 UN Doc. A/CONF.62/62, 10 Off. Rec. 6 (1978); relevant texts and author’s comments are in 73 AJIL at 4–5.

45 UN Doc. A/CONF.62/BUR.14 (1981). The President commented that the outstanding issues were those referred to in UN Docs. A/CONF.62/BUR.13 and A/CONF.62/WP.10/Rev.3* (arguably the introductory note), both of which contain open–ended references to issues of concern to delegations. Rule 33 of the Rules of Procedure deals with amendments to proposals.

46 Needless to say, the effort would lack credibility if the conference in fact proceeded, as currently projected, to apply rule 33—that is, to take up formal amendments—after the first 3 weeks. As for the dangers of voting on formal amendments, they are if anything greater than those previously described by the author. See 74 AJIL at 46–47; 75 id. at 212.

47 UN Doc. A/CONF.62/BUR.14, note 45 supra.

48 [1981–82] J.O. 1902 (Oct. 9, 1981, Senate text).

49 There might in fact be more than ten EEC members by the time the issue arises, including Spain, a straits state with major fishing interests, which is not generally noted for its enthusiasm for the Convention.

50 Secretary of State Alexander M. Haig, Senate Foreign Relations Committee Hearing, Sept. 17, 1981 (preliminary transcript).