1 For a symposium on the substantive aspects of this problem, see The Third World Challenge, 59 Foreign Aff. 366 (1980–1981).

2 W. Friedmann, The Changing Structure of International Law 11–12, 123–26 (1964). Many of these activities take place within international organizations or continuing conferences such as the General Agreement on Tariffs and Trade (GATT), the International Civil Aviation Organization (ICAO), the International Bank for Reconstruction and Development (IBRD, World Bank), the International Monetary Fund (IMF), the International Telecommunication Union (ITU), the World Administrative Radio Conference (WARC), and the United Nations Conference on Trade and Development (UNCTAD). The value of international agreements is discussed in R. Bilder, Managing the Risks of International Agreement 6–7 (1981).

3 M. Mcdougal, H. Lasswell, & I. Vlasic, Law and Public Order in Space 179 (1963).

4 Declaration on the Establishment of a New Economic Order, GA Res. 3201 (S–VI) (1974). See also Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX) (1974). For an informative discussion of the underlying pressures for systemic changes, see, Ul Haq, , Negotiating the Future, 59 Foreign Aff. 398 (1980–1981)Google Scholar. The recent Cancun meeting of the leaders of 22 industrialized and developing nations was convened for the purpose of finding means to break the deadlock on these issues. See Riding, , Cancún Parley Concludes Without Agreement, N.Y. Times, Oct. 24, 1981, at A4, cols. 3–5Google Scholar.

5 Brown, & Fabian, , Toward Mutual Accountability in the Nonterrestrial Realms, 29 Int’l Organization 877, 882 (1975)Google Scholar; and Ruggie, International Responses to Technology: Concepts and Trends, id. at 557, 578.

6 Ruggie, supra note 5, at 578. Ruggie, & Haas, , Environmental and Resource Interdependencies: Reorganizing for the Evolution of International Regimes, in 1 Report of the Commission on the Organization of the Government for the Conduct of Foreign Policy, App. B, at 218, 220 (1975)Google Scholar [hereinafter cited as Murphy Commission Report].

7 E. Haas, Beyond the Nation–State: Functionalism and the International Organization 6 (1964).

8 Ruggie, supra note 5, at 582. Ruggie & Haas, supra note 6, at 224. The conceptual bases for the reorganization would be the quality of life, the global environment, food and population, and energy and minerals. Id. at 225–28.

9 Even the highly visible Brandt Commission Report (North–South: A Program for Survival (W. Brandt & A. Sampson eds., 1980)) cannot be characterized as suggesting a systemic change. See Lescaze, , Brandt Commission Seeks Revived North–South Dialogue, Washington Post, Feb. 13, 1980, at A25, cols 1–6Google Scholar. There is little indication that many of its substantive proposals will be implemented.

10 The law of the sea is a particularly appropriate vehicle for illustrating these issues. Throughout its long and well–documented history there has been a constant interplay of politics and technology. Furthermore, the series of negotiations that has now culminated at the Third United Nations Conference on the Law of the Sea has brought this subject to an advanced stage. Thus, the LOS negotiations provide a complete record of the international issues that are the focus of this paper. At the same time, the law of the sea is not so atypical that the observations that might be made on the basis of this record are not generalizable.

For a comprehensive series of articles on the UNCLOS III negotiations, see 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 id. at 1 (1975);—The 1975 Geneva Session, id. at 763; and Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Session, 71 id. at 247 (1977);— The 1977 New York Sessions, 72 id. at 57 (1978);— The Seventh Session (1978) , 73 id. at 1 (1979);— The Eighth Session (1979) , 74 id. at 1 (1980); —The Ninth Session (1980), 75 id. at 211 (1981); and — The Tenth Session (1981), supra at p. 1. Some procedural aspects of the negotiations are discussed in B. Buzan, Seabed Politics (1976); Miles, , The Structure and Effects of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea, 31 Int’l Organization 158 (1977)Google Scholar; B. Buzan, A Sea of Troubles? Sources of Dispute in the New Ocean Regime (Adelphi Paper No. 143, 1978); Buzan, , United We Stand . . .: Informal Negotiating Groups at UNCLOS 111, 4 Marine Pol’y 183 (1980)Google Scholar; Buzan, , Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL 324 (1981)Google Scholar.

11 League of Nations, Acts of the Conference for the Codification of International Law, Held at the Hague From March 13th to April 12th, 1930, Doc. C.351.M.145.1930.V, Vol. I, at 50–54, 123–37; Doc. C74.M.39.1929.V, Vol. II; and Doc. C.351(b).M.145(b).1930.V, Vol. III. These documents are reproduced in League of Nations Conference for the Codification of International Law (S. Rosenne ed. 1975).

12 Preparations for this conference began in 1949. Report of the International Law Commission Covering the work of its eighth session, 11 UN GAOR, Supp. (No. 9) 2, UN Doc. A/3159 (1956), reprinted in 2 Y.B. Int’l L. Comm’n 253 (1956), 51 AJIL 154 (1957). The first conference produced four conventions: Convention on the High Seas, 13 UST 2312, TIAS No. 5200, 450 UNTS 82, reprinted in 52 AJIL 842 (1958); Convention on the Continental Shelf, 15 UST 471, TIAS No. 5578, 499 UNTS 311, reprinted in 52 AJIL 858 (1958); Convention on the Territorial Sea and the Contiguous Zone, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, reprinted in 52 AJIL 834 (1958); Convention on Fishing and Conservation of the Living Resources of the High Seas, 17 UST 138, TIAS No. 5969, 559 UNTS 285, reprinted in 52 AJIL 851 (1958).

13 See Dean, , The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas, 54 AJIL 751 (1960)Google Scholar; Jessup, The Law of the Sea Around Us, 55 id. at 104 (1961).

14 Note verbale to Secretary–General U Thant, UN Doc. A/6695 (1967). See generally Swing, , Who Will Own the Oceans?, 54 Foreign Aff. 527 (1976)Google Scholar.

15 The informal conferences held by the Law of the Sea Institute and Pacem in Maribus played a role in this regard, but were more informational than anything else.

16 For a discussion of this issue, see Burke, , Submerged Passage Through Straits: Interpretations of the Proposed Law of the Sea Treaty Text, 52 Wash. L. Rev. 193, 195–200 (1977)Google Scholar. See also Knauss, , The Military Role in the Ocean and its Relation to the Law of the Sea, in The Law of the Sea: A New Geneva Conference 77 Google Scholar (Proceedings of the Sixth Annual Conference of the Law of the Sea Institute, L. Alexander ed. 1972).

17 See Organization of the second session of the Conference and Allocation of Items: Report of the General Committee, UN Doc. A/CONF.62/28 (1974), 3 Third United Nations Conference on the Law of the Sea, Official Records [hereinafter cited as UNCLOS III, Off. Rec] 57 (1975).

18 Question of the Reservation Exclusively for Peaceful Purposes of the Sea–bed and Ocean Floor, and the Sub–soil thereof, Underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of their Resources in the Interests of Mankind [Moratorium Resolution], GA Res. 2574D (XXIV) (1970); Declaration of Principles Governing the Sea–bed and the Ocean Floor, and the Sub–soil thereof, beyond the Limits of National Jurisdiction, GA Res. 2749 (XXV) (1970). For a review of the UN activities from 1967 to 1970, see B. Buzan, Seabed Politics, supra note 10, at 65–116. See also note 15 supra.

19 Ruggie & Haas, supra note 6, at 218.

20 “Interdependence” is used here to mean “mutual sensitivity.” See Baldwin, , Interdependence and Power: A Conceptual Analysis, 34 Int’l Organization 471 (1980)Google Scholar.

21 House Comm. on International Relations, Science, Technology and American Diplomacy: an Extended Study of the Interactions of Science and Technology With United States Foreign Policy [hereinafter cited as Extended Study of American Diplomacy] 77–122 (Comm. Print 1977).

22 The arguments are collected in L. Lipson & N. Katzenbach, Report to the National Aeronautics and Space Administration on the Law of Outer Space 51–59 (1961).

23 McDougal, & Lipson, , Perspectives for a Law of Outer Space, 52 AJIL 407, 420 (1958)Google Scholar.

24 Id. at 424–25.

25 Id. at 425; Jaffee, , Reliance upon International Custom and General Principles in the Growth of Space Law, 7 St. Louis U.L.J. 125, 130 (1962)Google Scholar; M. Mcdougal, H. Lasswell, & I. Vlasic, supra note 3, at 323–49.

26 Schachter, , The Prospects for a Regime in Outer Space and International Organization, in Law and Politics in Space 95, 99 (Cohen, M. ed. 1964)Google Scholar. Apparently, this issue has been revived in light of the development of the United States space shuttle. See Kopel, , The Question of Defining Outer Space, 8 J. Space L. 154 (1980)Google Scholar.

27 G. Schwarzenberger, Power Politics: A Study of World Society 109 (3d ed. 1964).

28 See, e.g., Sovereignty in Space, Newsweek, Dec. 19, 1955, at 82; Haley, , Law of Outer Space—A Problem for International Agreement, 7 Am. U. L. Rev. 70, 76 (1958)Google Scholar; Clarke, , The Challenge of the Spaceship, 6 J. Brit. Interplan. Soc’y 66–81 (1946)Google Scholar.

29 Schachter, supra note 26, at 98. See also McDougal & Lipson, supra note 23, at 414.

30 The economic viability of deep seabed mining was extensively considered in the course of the multi–session consideration of deep seabed mining legislation before the U.S. Congress. That history is reviewed in Caron, , Municipal Legislation for Exploitation of the Deep Seabed, 8 Ocean Dev. & Int’l L. 259 (1980)CrossRefGoogle Scholar. On June 28, 1980, President Carter signed the legislation into law: the Deep Seabed Hard Mineral Resources Act, P.L. 96–283. The economic issues were explored in a recent book entitled Deepsea Mining (J. T. Kildow ed. 1980). See also D. Leipziger & J. Mudge, Seabed Mineral Resources and the Economic Interests of Developing Countries (1976).

That there has been misinformation about the importance of deep seabed mining has been clear for some time. Many were led to believe that commercial operations would begin by the mid– 1970’s; it now appears that the earliest possible date will be the late 1980’s. While the uncertain political–legal situation may have contributed to this delay, basic technological and economic obstacles also have to be overcome. Early projections presumed that there would be a rapid rise in the number of commercial mine sites once commercial production became possible; these projections are now considered to have been unduly optimistic aside from the potential legal constraints on production. While some counseled against accepting these optimistic forecasts, the industry, which projected an early development of major nodule exploitation, dominated the information flow. Without accusing industry spokesmen of intentionally misleading their governments and the international community, it should be pointed out that an optimistic forecast could serve their interest in many ways: i.e., in obtaining favorable internal company decisions, in obtaining financing from external sources, and in persuading their home governments to seek a favorable legal regime at an early date. See the voluminous congressional testimony on the economic issues given during consideration of the Deep Seabed Hard Mineral Resources Act and its predecessor bills, supra. A genealogical table of the bills that led up to this legislation is found in Caron, supra, at 287. Some of the older and more optimistic reports on the economic viability of deep seabed mining include: Drechsler, , The Value of Subsea Mineral Resources, in A New Geneva Conference, supra note 16, at 112–13 Google Scholar; Rothstein, & Kaufman, , The Approaching Maturity of Deep Ocean Mining—The Pace Quickens, Mining Engineering, April 1971, at 31, 33 Google Scholar; Additional Notes on the Possible Economic Implications of Mineral Production from the International Sea–bed Area: Report of the Secretary–General, UN Doc. A/AC.138/73, at 9–10 (1972). Contra, Sorensen, & Mead, , A Cost–Benefit Analysis of Ocean Mineral Resource Development: The Case of Manganese Nodules, Am. J . Agricultural Econ., December 1968, at 1611 Google Scholar. See generally R. Wright, Ocean Mining, an Economic Evaluation (Staff Study, Ocean Mining Administration, U.S. Dept. of the Interior, 1976); and Charney, , The Equitable Sharing of Revenues from Seabed Mining, in Knight, H. G., Charney, J., & Jacobson, J., Policy Issues in Ocean Law 53 (1975)Google Scholar.

31 Extended Study of American Diplomacy, supra note 21, at 77.

32 In the mid-1970’s, the nations directly involved in explorations related to nodule mining included Belgium, West Germany, France, Canada, Great Britain, Japan, and the United States. The firms were Deepsea Ventures (a consortium of Tenneco, U.S. Steel, Union Minière of Belgium, and some Japanese companies); the Kennecott Consortium (Kennecott Copper, Rio Tinto Zinc, Consolidated Gold Fields, Noranda Mines, and Mitsubishi); the International Nickel Company of Canada Consortium (the German AMR group, SEDCO, and a Sumitomo–led Japanese group (DOMCO)). Also, it was mistakenly believed that the Summa Corporation was involved; however, it was actually developing a system to try to recover a Soviet submarine for the CIA. D. Leipziger & J. Mudge, supra note 30, at 128 n.15. See also B. Buzan, Seabed Politics, supra note 10, at 80.

33 In truth, the industry had so effectively controlled information on deep seabed mining that the developed country delegations had little knowledge that was not derived from the industry and already generally known.

34 J. Rubin & B. Brown, the Social Psychology of Bargaining and Negotiation 145 (1975); P. Gulliver, Disputes and Negotiations 145 (1979).

35 Compare Stevenson & Oxman, Preparations for the Law of the Sea Conference, supra note 10, at 13–23, with Stevenson & Oxman, The 1974 Caracas Session, supra note 10, at 15–17.

36 See the proposed agenda discussed in ul Haq, supra note 4.

37 See B. Buzan, Seabed Politics, supra note 10, at 71; see also note 15 supra.

38 See Extended Study of American Diplomacy, supra note 21, in general and at 1491–1502, 1682–86, and 1702; Keohane, & Nye, , Organizing for Global Environmental and Resource Independence, 1 Murphy Commission Report, supra note 6, App. B, at 46, 61–62 Google Scholar.

39 See note 38 supra.

40 UNESCO, Thinking Ahead 151 (1977).

41 Deutsch, , Outer Space and International Politics: A Look to 1988, in Outer Space in World Politics 139 (Goldsen, J. ed. 1963)Google Scholar.

42 Bergman, , Organizing the U.S. Government Response to Global Population Growth, 1 Murphy Commission Report, supra note 6, App. B, at 65, 80 Google Scholar.

43 Schachter, , Scientific Advances and International Law Making, 55 Cal. L. Rev. 423, 424–27 (1967)Google Scholar; M. Bedjaoui, Towards A New International Economic Order 138–42 (1979).

44 See Sohn, , The Stockholm Declaration on the Human Environment, 14 Harv. Int’l L.J. 423 (1973)Google Scholar.

45 This history is recounted in Swing, supra note 14. See also note 18 supra.

46 There have been international law developments that were molded by activity at the conference in the same way that nonbinding conference proceedings discussed above have influence on law development. The fact that this was a treaty negotiation, however, stimulated national claims and positions that may prove counterproductive in the long run.

47 Extended Study of American Diplomacy, supra note 21, at page 1491.

48 The obverse is also true. The experience of the Law of the Sea Conference has shown that nations will be wary of committing themselves to the completion of a negotiation if they believe that their lack of information puts them at a severely disadvantageous position relative to other participants (unless, of course, they have identified an independent need for agreement). This places a premium on the timely and credible distribution of relevant information through government and private channels.

49 The most recent example of this procedure is the Convention on the Conservation of Antarctic Marine Living Resources, opened for signature Aug. 1, 1980 to December 31, 1980, reprinted in 19 ILM 841 (1980). See also Agreed Measures for the Conservation of Antarctic Fauna and Flora, reprinted in Congressional Research Service, 95th Cong., 1st Sess., Treaties and Other International Agreements on Fisheries, Oceanographic Resources, and Wildlife Involving the United States 28–34 (Comm. Print 1977); Convention for the Conservation of Antarctic Seals, opened for signature June 1, 1972, TIAS No. 8826 (entered into force March 11, 1978), reprinted in 11 ILM 251 (1972).

50 The question of international participation in the development of the Antarctic mineral resource regime is discussed in Charney, , Future Strategies for an Antarctic Mineral Resource Regime—Can the Environment be Protected?, in The New Nationalism and the Use of Common Spaces: Issues in Marine Pollution and the Exploitation of Antarctica 206 (Charney, J. ed. 1981)Google Scholar.

51 See note 18 supra.

52 Ruggie, supra note 5, at 571.

53 Ibid.

54 Since it was assumed that deep seabed mining would not be operating commercially at the commencement of the new regime, the negotiations had as one aim facilitating the acquisition of that capability. In addition, the Enterprise was to have as its initial objective the acquisition of deep seabed mining capabilities. Another purpose of the regime, once the capability was acquired, was to use that capability by conducting deep seabed mining. Finally, the negotiations addressed the consequences of deep seabed mining by drafting provisions on its environmental impact, the sale of metals, and the amelioration of any adverse economic impact on competing producers.

The instrumentalities proposed for this regime were equally comprehensive. Depending on the nature of a specific activity, at least three of the four alternatives would be utilized. The rules applicable to seabed prospecting could best be considered as establishing a common framework for national behavior. Commercial exploration and exploitation by contractors would probably be considered a common policy for integrating national behavior; and the operations of the Enterprise would be a common policy substituting for independent national behavior. Similarly, depending on the particular activity, the seabed regime would act in an informational, managerial, or executive role.

55 In part, it is that fear which may have motivated the so–called L–5 to vehemently protest the new Moon Treaty. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, UN Doc. A/34/664, reprinted in 18 ILM 1434 (1979). See Dangerous Defects in the Draft UN Moon Treaty (Letter to the Editor by K. Eric Drexler, Director L–5 Society), N.Y. Times, Oct. 9, 1979, at A22, cols. 3–5. See generally Christol, , The Common Heritage of Mankind Provision in the 1977 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 14 Int’l Law. 429 (1980)Google Scholar.

56 See Report of the Secretary–General, Economic Significance, in terms of Sea–bed Mineral Resources, of the Various Limits Proposed for National Jurisdiction, UN Doc. A/AC. 138/87, at 27–28 (1973) [hereinafter cited as Economic Significance]; UN Dep’t of Economic and Social Affairs, Mineral Resources of the Sea (UN Doc. ST/ECA/125, 1970); Report of the Secretary– General, Economic Implications of Sea–bed Mineral Development in the International Area, UN Doc. A/CONF.62/25 (1974), 3 UNCLOS III, Off. Rec. 4 (1975); Report of the Secretary General, Possible Impact of Sea–bed Mineral Production in the Area Beyond National Jurisdiction on World Markets, with Special Reference to the Problems of Developing Countries: A Preliminary Assessment, UN Doc. A/AC.138/36 (1971); Report of the Secretary–General, Possible Methods and Criteria for the Sharing by the International Community of Proceeds and Other Benefits Derived from the Exploitation of the Resources of the Area Beyond the Limits of National Jurisdiction, UN Doc. A/AC.138/38 (1971); Progress Report by the Secretary–General, Sea–bed Mineral Resources: Recent Developments, UN Doc. A/AC.138/90 (1973); Report by the UNCTAD Secretariat, The Effects of Production of Manganese from the Sea–bed, with Particular Reference to the Effects on Developing Country Producers of Manganese Ore, UN Doc. TD/B/483 (1974); An Econometric Model of the Manganese Ore Industry, UN Doc. TD/B/483/Add.1 (1974); Report by the UNCTAD Secretariat, The Effects of Possible Exploitation of the Sea–bed on the Earnings of Developing Countries from Copper Exports, UN Doc. TD/B/484 (1974); Report by the UNCTAD Secretariat, Commodity Problems and Policies, Mineral Production from the Area of the Sea–bed Beyond National Jurisdiction: Issues of International Commodity Policy, UN Doc. TD/B/113, Supp. No. 4 (1972); Report by the FAO Secretariat, Possible Adverse Effects of the Exploitation of the Sea–bed Beyond National Jurisdiction on Fishery Resources, UN Doc. TD/B/447 (1973); Note by the UNCTAD Secretariat, Exploitation of the Mineral Resources of the Sea–bed Beyond National Jurisdiction: Issues of International Commodity Policy, UN Doc. TD/B/449 (1973); Exploitation of the Mineral Resources of the Sea–bed Beyond National Jurisdiction: Issues of International Commodity Policy, Case Study of Cobalt, UN Doc. TD/B/449/Add.1 (1973).

57 See 2 UNCLOS III, Off. Rec., Meetings 9 and 10 of Comm. I, at 45–52 (1975). In preparation for this discussion the committee Chairman issued a summary of the relevant documents that had been previously presented to the conference, Note by the Chairman of the First Committee, UN Doc. A/CONF.62/C.1/L.2 (1974), 3 UNCLOS III, Off. Rec. 151 (1975).

58 United States of America: Working Paper on the Economic Effects of Deep Sea–bed Exploitation, UN Doc. A/CONF.62/C.1/L.5, 2 UNCLOS III, Off. Rec. 164; Seminar on Economic Implications of Sea–bed Mineral Development, Statement by Mr. Gavin Moncrieff (United Kingdom, July 31, 1974) (unpub.). See also Statement by Leigh S. Ratiner, Alternate United States Representative, Comm. I (Aug. 8, 1974). This statement was made at an informal meeting of Committee I and is unpublished. Much of the substance was repeated, however, at a formal meeting of Committee I, 2 UNCLOS III, Off. Rec. 64–66.

59 See Statement by U.S. Representative Ratiner at the 14th meeting of Committee I on Aug. 19, 1974, 2 UNCLOS III, Off. Rec. 75. Chairman Engo’s summary of the seminar is found in id. at 68–70.

60 A particularly significant role was played by an interested and active nongovernmental organization (NGO), the Ocean Education Project (OEP), which periodically sponsored informal seminars for interested delegates. It held approximately 60 luncheons and seminars on UNCLOS III matters. This NGO was established by the World Federation Association and Friends World Committee for Consultation for the purpose of assisting the negotiations. Its active leaders were strongly committed to the success of the negotiations, including the establishment of a strong and viable deep seabed mining regime. Most of the active participants were U.S. citizens, but they had little or no political power, domestic or international. Their activities were periodically reported in the occasional conference newspaper Neptune, sponsored by OEP and the Law of the Sea Project of the United Methodist Church.

In addition to the continued flow of information, there were efforts by small and fairly secret groups of interested states directly to negotiate a political settlement of the economic issues. Once agreement was reached within those groups, the members sought to legitimatize their agreement by orchestrating the consideration of the subject at a rather large Committee I working group or similar body. While they did have periods of apparent success, opposition ultimately developed to their agreements (usually from excluded participants) and the initiatives collapsed. These abortive efforts took place during negotiations that preceded the issuance of the Informal Single Negotiating Text, UN Doc. A/CONF.62/WP.8 (1975), 4 UNCLOS III, Off. Rec. 137 (1975) [hereinafter ISNT] and in the interval before the issuance of the Revised Single Negotiating Text, UN Doc. A/CONF.62/WP.8/Rev.1 (1976), 5 id. at 125 (1976) [hereinafter RSNT].

61 This took place during a meeting of the Committee I Chairman’s Working Group, chaired by Ambassador Jens Evensen of Norway, on the afternoon of May 26, 1977. No records of this meeting have been issued. The document contained printouts from a computer program which projected the number of manganese nodule mine sites during the period 1985 to 2000, based on various assumptions. The tables were headed “Program: Group of 77 Hi Formulation Offshore Minerals Section: RMCB, EMR” (unpub.). At an annual growth rate of 6%, it projected a total of 23.8899 mine sites in the year 2000.

62 With the U.S. review of UNCLOS III announced by the Reagan administration in March 1981, this issue, in addition to many others, may be reopened. See UN Third Conference on the Law of the Sea (Resumed 10th Session), Report Submitted to the House Comm. on Foreign Affairs, 97th Cong., 1st Sess. (Comm. Print 1981). As an analysis of the dynamics of the international negotiations, the observations made here remain unchanged. It is still an open question whether the solution of this and other issues will ultimately be found to be politically acceptable, as expressed through a binding international agreement.

63 The formula provided that the maximum quantity of nickel that can be produced from seabed mining will not exceed a certain percent of the growth segment of world nickel consumption. RSNT, pt. I, Text Presented by the Chairman of the First Committee, Art. 9.4(ii) and Ann. 1, para. 21; see Introductory Note by the Chairman of the First Committee, pt. IV, 5 UNCLOS III, Off. Rec. 125; Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), 8 UNCLOS III, Off. Rec. (1978) [hereinafter ICNT], Art. 150.1(g); ICNT/Rev. 1, UN Doc. A/CONF.62/WP.10/Rev.1. (1979), Art. 150.1(g); and ICNT/Rev.2, UN Doc. A/CONF.62/WP.10/Rev.2 (1980), Art. 151.

64 The Archer Group of Technical Experts, begun at the intersessional meetings, was made a subgroup of Negotiating Group 1 (NG 1), which had been assigned the responsibility of negotiating the system of exploration and exploitation and resource policy (Chairman: Frank Njenga, Kenya). See Oxman, The Seventh Session, supra note 10, at 10, and U.S. Delegation Report, 7th sess., UNCLOS III, at 13 (1978) (unpub.).

65 See Negotiating Group 1 Sub–Group of Technical Experts, Progress Report, Conf. Doc. NG1/7, 10 UNCLOS III, Off. Rec. 28 (1978); Negotiating Group 1 Sub–Group of Technical Experts, Second Progress Report, UNCLOS III, Conf. Doc. NG1/9 (May 9, 1978); and NG–1 Sub–Group of Technical Experts, Final Report, UNCLOS III, Conf. Doc. NG1/11 (May 11, 1978). See also U.S. Delegation Report, supra note 64; and Oxman, supra note 64.

66 The political negotiation of the production control article within UNCLOS III at that time was held in another subgroup of NG 1, the Production Control Group chaired by Ambassador Satya Nandan (Fiji) (Nandan group). See Oxman, The Eighth Session, supra note 10, at 11; U.S. Delegation Report, 8th Sess., UNCLOS III, at 14–17 (1979) (unpub.); and U.S. Delegation Report, 9th Sess., UNCLOS III, at 17 (1980) (unpub.). This work was incorporated into the ICNT/Rev.2, supra note 63, Art. 151. See generally ICNT, supra note 63, Art. 150; ICNT/Rev.1, supra note 63, Arts. 150 and 151; Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/Rev.3, Art. 151 (1980) [hereinafter DC(IT)]; Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78, Art. 151 (1981) [hereinafter DC].

67 See Chairman’s Expert Advisory Group on Financial Arrangements, Financial Terms of Contracts, First Committee (June 27, 1977) (unpub.). Related documents issued to the committee to assist in educating the participants on this issue included: Costs of the Authority and Contractual Means of Financing its Activities, UN Doc. A/CONF.62/C.1/L.19 (1977); and Note by the Secretariat, Hypothetical Computation of Production of Nickel from the Area (May 27, 1977) (unpub.). The work of the Chairman’s Advisory Group on Financial Arrangements found its way into the ICNT, supra note 63, Ann. II, para. 7, but it was highly qualified; see footnote * at para. 7, and the Explanatory Memorandum by the President of the Conference on Document A/CONF.62/WP.10, UN Doc. A/CONF.62/WP.10/Add.1 (1977), 8 UNCLOS III, Off. Rec. 65, 66–67 (1978).

68 Unlike the Archer group, this group held its meetings in relative secrecy and there was a notable absence of the sense of expert consultation. In fact, there were a number of important participants who were under the impression that the Chairman alone would determine the results of the group, and that they were obliged to convince him to adopt their views. Thus, the atmosphere appeared to be one of advocacy rather than expert inquiry and analysis. In the end, the Chairman did not attempt to resolve the issues. Rather, the resulting document incorporated every type of tax presented to the group into one taxing scheme, an approach not acceptable to any but the most ardent opponents of deep seabed mining. A rumored power conflict between two of the major conference actors may have contributed to the failure of this effort.

69 J. Nyhart, L. Antrim, A. Capstaff, A. Kohler, & D. Leshaw, A Cost Model of Deep Ocean Mining and Associated Regulatory Issues (Report No. MITSG 78–4, 1978).

70 UN Doc. A/CONF.62/62, 10 UNCLOS III, Off. Rec. 6 (1978); Note by Ambassador T. T. B. Koh, Chairman of Negotiating Group 2, Conf. Doc. NG2/1 (April 19, 1978) (unpub.); and Oxman, The Seventh Session, supra note 10, at 11–13.

71 Various experts were brought to the group to aid the Chairman and the participating delegations when necessary. Throughout much of its work, the Chairman invited an expert from the United Nations Development Programme (UNDP) to aid in some technical analysis. Assistance was also given by various expert members of participating delegations and the Secretariat. Ambassador Koh made a particular effort to assemble a group of qualified assistants to help him and the Group of Technical Experts to address the relevant issues, and a number of delegations brought with them or were represented by persons expert in the areas under discussion.

72 At least five factors appear to have contributed to this success. First, the report was presented not as the product of an interested delegation but rather as the product of a highly reputable academic institution with known expertise in the general area. Second, the report did not appear fully to confirm the political positions taken by the sponsoring delegation. In fact, the United States was required to modify some of its positions, in light of the findings of the report. Thus, the credibility of the study was further established. Third, the principal author of the study and his technical assistants were made available to the interested delegates and the conference staff for informal discussions and other meetings so that questions could be raised about the report and interested participants could become well informed. The participants were even able to request additional computer analyses from MIT to determine the impact of various proposals and changed assumptions. Fourth, in addition to a readable statement of the ultimate conclusions and the basic reasons for those conclusions, the report contained a full presentation of the details underlying the entire report. Fifth, no other delegation or authority presented an analysis of the potential industry that even approached the level of sophistication of the MIT study. These factors certainly facilitated the acceptance of the study by the working group.

73 The work of the Koh group is documented in some of the materials issued by NG 2. See, e.g., Note by Ambassador T. T. B. Koh, supra note 70; Financial Terms of Contracts, Some Issues and Questions, Conf. Doc. NG2/2 (April 26, 1978); Financial Arrangements of the Authority, Conf. Doc. NG2/4 (May 4, 1978), 10 UNCLOS III, Off. Rec. 54; Financial Terms of Contracts, Explanatory Notes on the Technical Terminology, Conf. Doc. NG2/6 (May 8, 1978), id. at 70; Financial Terms of Contracts, The Chairman’s Suggested Compromise Proposals, Conf. Doc. NG2/7 (May 12, 1978), id. at 58; Financial Terms of Contracts, The Chairman’s Explanatory Memorandum on Document NG2/7, Conf. Doc. NG2/8 (May 11, 1978), id. at 63; Report of the Chairman of Negotiating Group 2 to the First Committee, Conf. Doc. NG2/9 (May 16, 1978), id. at 52; and Second Report by the Chairman of Negotiating Group 2, UN Doc. A/CONF.62/C.1/L.22, 11 UNCLOS III, Off. Rec. 103 (1980). See also U.S. Delegation Report, supra note 64, at 16–19; U.S. Delegation Report, 8th Sess., supra note 66, at 17–22; and U.S. Delegation Report, 9th Sess., supra note 66, at 20–21. For a discussion of the negotiation of the financial arrangements issue by the U.S. representative to the Koh group, see Katz, , Financial Arrangements for Seabed Mining Companies: An NIEO Case Study, 13 J. World Trade L. 209 (1979)Google Scholar.

74 See ICNT/Rev.2, supra note 63, Ann. III, Art. 13, and DC, supra note 66, Ann. III, Art. 13. See also Oxman, The Eighth Session, supra note 10, at 13–15.

75 Article 1 of the Convention on the Continental Shelf, supra note 12, defines the continental shelf as

the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas. . . .

A thorough analysis of the relevant negotiating history is found in Oxman, , The Preparation of Article 1 of the Convention on the Continental Shelf, 3 J. Mar. L. 245, 445, and 683 (1972)Google Scholar.

76 Some countries wanted to maximize the seaward limits of the continental shelf either to assure their access to valuable hydrocarbons believed to be there or merely to assure national control over a maximum area of sèabed. Others, not likely to gain from an expansive definition of the continental shelf, sought a narrow definition, often combined with a demand for the international sharing of revenues to be derived from the continental shelves of all nations. While this latter group included those nations which were seeking a more equitable distribution of the benefits likely to be realized by the few nations with valuable continental shelf resources, there were others with more direct interests. Some of those countries sought a narrow limit in order to contain potential interferences with high seas freedoms; others sought to limit competing production of hydrocarbons.

77 The early negotiating texts left the limits of the continental shelf vague. ISNT, supra note 60, pt. II, Art. 62; RSNT, supra note 60, pt. II, Art. 64; ICNT, supra note 63, Art. 76. Beginning with the ICNT/Rev.1, the formulation became more technical and specific. ICNT/Rev.1, supra note 63, Art. 76; ICNT/Rev.2, supra note 63, Art. 76. Although the text remained static for some time, efforts to develop a precise technical definition began at an early date. See RSNT, pt. II, Introductory Note by the Chairman of the Second Committee, 5 UNCLOS III, Off. Rec. 152, 153 (1967). See also ICNT, Memorandum by the President, supra note 67, at 68. Negotiating Group 6 was established at the seventh session of the conference in 1978 to address this issue. The Chairman of the Second Committee, Andrés Aguilar (Venezuela), chaired this negotiating group. Three alternatives, in addition to the formula found in the ICNT, were before the NG 6 at that time. The Irish formula would determine the limit of the continental shelf by first locating the base of the continental slope. The limit of the continental shelf would be located seaward of that point by use of one of two formulas chosen by the coastal state. Under one alternative, the state could claim an additional 60 nautical miles. Under the other, the state could go beyond the base of the continental slope to where the depth of sediments was no less than 1 % of the distance between that point and the foot of the slope. Informal Suggestion by Ireland, Article 76, Definition of the Continental Shelf, Conf. Doc. NG6/1 (May 1, 1978). The Arab Group proposed to limit the extent of the continental shelf absolutely to 200 miles from the coastline. Informal Suggestion by the Arab Group, Article 76, Definition of the Continental Shelf, Conf. Doc. NG6/2 (May 11, 1978). The Soviet Union’s position was that the limit of the continental shelf should stop at 300 nautical miles. Conf. Doc. C.2/Informal Meeting/14 (April 27, 1978). Those proposals are published in UN Doc. A/CONF.62/C.2/L.99 (1979) at Anns. I–III, 11 UNCLOS III, Off. Rec. 121 (1980). See generally Oxman, The Seventh Session, supra note 10, at 19–22.

78 This map purported to illustrate the seabed gradient of every continental margin, which provided a general picture of the situation but was not very useful for analyzing specific boundary formulas. In the first place, it was of such a small scale that little detailed information could be derived. Second, the map did not provide all the data needed to apply the various formulas under negotiation and to compare their relative impacts. Office of the Geographer, Dep’t of State, Major Topographic Divisions of the Continental Margins (Map. No. 78784 8–70).

79 See Preliminary Study Illustrating Various Formulae for the Definition of the Continental Shelf, UN Doc. A/CONF.62/C.2/L.98 and Adds. 1–3 (1978). These maps did illustrate various boundary delimitation formulas. Unfortunately, after they were issued, questions were raised about the accuracy of the assumptions made in their preparation. See Study of the Implications of Preparing Large–scale Maps for the Third United Nations Conference on the Law of the Sea, UN Doc. A/CONF.62/C.2/L.99, supra note 77. Furthermore, the small scale used made it difficult to appreciate the full impact of various formulas. Since representatives of the expert group that prepared the maps, the Lamont–Doherty Geological Observatory, were not made available to the conference, there was no opportunity for an interchange that might have allayed the doubts of some delegations. Finally, as the negotiations proceeded, changes were made in the boundary formulas under consideration; this caused the utility of these maps to decrease over time. Despite their limitations, these maps were often referred to in the course of the negotiations.

80 This last request for a series of UN–prepared maps comparing the various formulas was made in May 1978 at the end of the seventh session of the conference. UN Doc. A/CONF.62/SR.103, 9 UNCLOS III, Off. Rec. 65–66 (1980). Mr. Yankov (Bulgaria) suggested that a competent organization be invited to prepare a map of the ocean regions indicating the practical consequences of the various boundary delimitation formulas. The USSR and Bulgaria wanted the International Oceanographic Commission (IOC), a subsidiary organ of UNESCO, to prepare a set of largescale maps illustrating the current boundary formulas. Unlike the prior requests, this one was actively resisted by some countries, particularly those seeking expansive coastal state jurisdiction. Id. at 66–69. Delegations from Australia and Peru questioned the feasibility of the Bulgarian proposal. After some conflict, it was agreed that a phased request would be made to the IOC. Ibid. Ultimately, the IOC agreed to prepare the maps, but apparently because of ambiguities in the request and an inadequate data base, it was determined that the maps could not be prepared. See UN Doc. A/CONF.62/C.2/L.99, supra note 77. The effort was then abandoned. This left the delegates in the position of negotiating boundary formulas whose impacts admittedly could not be determined, at least on the basis of the generally available information.

81 The Soviet experts brought with them various maps and illustrations with the clear purpose of discrediting the so–called Irish formula for setting the limits of the continental shelf and of defending their own proposal to place an absolute limit on the breadth of the continental shelf at 300 miles. While the Soviet position was forcefully presented, it also appears to have had little impact, perhaps due to the unabashed advocacy nature of the presentation. See generally note 77 supra.

82 It is an extremely complex multifactor formula. See DC, supra note 66, Art. 76:

83 ISNT, supra note 60, pt. II, Arts. 117–131. See Hodgson, & Smith, , The Informal Single Negotiating Text (Committee II): A Geographic Perspective, 3 Ocean Dev. & Int’l L. 225, 241–44 (1976)Google Scholar.

84 Substantively, this text has remained virtually static during the course of UNCLOS III. See RSNT, supra note 60, pt. II, Arts. 118–127; ICNT, supra note 63, Arts. 46–54; ICNT/Rev.1, supra note 63, Arts. 46–54; ICNT/Rev.2, supra note 63, Arts 46–54; DC(IT), supra note 66, Arts. 46–54; and DC, supra note 66, Arts. 46–54.

85 Of course, the limited number of archipelagic states limited the number of geographic conditions to be considered and the number of highly interested parties; also, the formula relied on known geographic information, unlike the later continental shelf formulas.

86 It is important to ensure that the information delivered to a conference is accurate. A classic case of a conference that proceeded on the basis of inadequate data is the first United Nations Conference on the Law of the Sea of 1958. The Convention on the Continental Shelf produced by that conference did not establish a definite limit to the continental shelf and no substantial effort was undertaken to fix that limit. Supra note 75. The failure to define the limit contributed to the massive expansion of coastal state jurisdiction in the 1960’s and 1970’s and the calling of UNCLOS III. This omission by the delegates to UNCLOS I occurred because they were led to believe that uses of the seabed at distances and depths beyond the area indisputably within the regime of the continental shelf would not take place for a great many years, if ever. See L. Henkin, Law For The Sea’s Mineral Resources 4 and 37 (ISHA Monograph No. 1, 1968). Not only was this area reached very quickly, but the then current activities were rapidly approaching those limits. This unfortunate result took place despite the fact that the International Law Commission, which conducted the preparatory work, made efforts to incorporate the relevant data into its work.

87 One critical choice was to abandon the joint venture system for exploiting the deep seabed in favor of the so–called parallel system in which state and private business entities would be able to exploit the seabed directly, as would the internationally established Enterprise. While the system does put the two sides in competition, the supporters of both sides will not be willing to accept the demise of their favored side of the system even though the risks of deep seabed mining will be high. The fragility of this arrangement is recognized, and the fact that a single joint venture system was cast aside early in the negotiations has been regretted by some.

88 While the negotiation of a comprehensive legal regime may be possible at such an early date, a better choice might be to establish a basic legal structure that would facilitate the development of additional parts of the legal regime as required. To some extent, that was the route taken for the Antarctic Treaty of 1959, 402 UNTS 71, 12 UST 794, TIAS No. 4780. See Bilder, , The Present Legal and Political Situation in Antarctica, in The New Nationalism, supra note 50, at 167 Google Scholar. See generally A Symposium, Antarctic Resources: A New International Challenge, 33 U. Miami L.R. 285 (1978).

89 See text at note 52 supra.

90 The United States seriously considered a simplification of the text in 1978, but the deep seabed mining industry successfully thwarted this effort. At that stage it may have been too late to move away from a detailed text anyway. See Oxman, The Seventh Session, supra note 10, at 15–16. It is expected that a number of technical issues relevant to deep seabed mining will be delegated to a preparatory commission. DC, supra note 66, Art. 308(4). The question of tailoring the scope and content of international agreements to limit risks and to take account of uncertainties is discussed in R. Bilder, supra note 2.

91 “Neutral disinterested” experts may be available if the negotiation involves a small number of participants and does not concern universal issues. In large negotiations involving the “big” issues, however, sometimes even the appearance of neutrality or independence will be impossible. The absence of neutral players is a significant obstacle to such universal negotiations in many respects. The increased importance of committee chairmen at UNCLOS III is one response to the problem; it is a solution that has had mixed results. Arguably, no scientific and social science information is neutral. M. McDougal, H. Lasswell, & I. Vlasic, supra note 3, at 1096; UNESCO, supra note 40, at 151; Keohane & Nye, supra note 38, at 63; Haas, , Is There a Hole in the Whole? Knowledge, Technology, Interdependence, and the Construction of International Regimes, 29 Int’l Organization 827, 875 (1975)Google Scholar.

92 The type of information sought is an important variable, i.e., computations, judgment, or compromise. E. Haas, note 7 supra, at 105, 110, and 127. No single theory or model will fit all situations. E. Haas, M. Williams, & D. Babai, Scientists and World Order: Uses of Technical Knowledge in International Organizations 335 (1977).

93 See, e.g., Possible Environmental Effects of Mineral Exploration and Exploitation in Antarctica (J. H. Zumberge ed., 1979); Zumberge, , Potential Mineral Resources Availability and Possible Environmental Problems in Antarctica, in The New Nationalism, supra note 50, at 115 Google Scholar; Final Report of the Tenth Antarctic Treaty Consultative Meeting, Ann. 6, Report of the Group of Ecological, Technological and Other Related Experts on Mineral Exploitation and Exploration in Antarctica (1979). The meetings of the Antarctic Consultative Parties are a creature of the Antarctic Treaty, supra note 88.

94 See Jessup, & Taubenfeld, , The United Nations Ad Hoc Committee on Peaceful Uses of Outer Space, 53 AJIL 877, 878 (1959)Google Scholar; Taubenfeld, , Weather Modification and Control: Some International Legal Implications, 55 Cal. L. Rev. 493, 505 (1967)CrossRefGoogle Scholar. A similar approach has been recommended in the field of weather and climate modification. S. Brown, N. Cornell, L. Fabian, & E. Weiss, Regimes for the Ocean, Outer Space and Weather 237–38 (1977).

95 E. Haas, supra note 7, at 445; Schachter, Some Reflections on International Officialdom, in International Organization; Law in Movement 53, 61–62 (J. Fawcett & R. Higgins eds. 1974).

96 Draft Agreement Establishing the Common Fund for Commodities, UN Doc. TD/IPC/CONF/L.15 and Corr. 1 (1980), reprinted in 19 ILM 896 (1980). See R. Rothstein, Global Bargaining:UNCTAD and the Quest for A New International Economic Order (1979); P. Reynolds, International Commodity Agreements and the Common Fund (1978); Wasserman, , UNCTAD: The Common Fund, 13 J. World Trade L. 355 (1979)Google Scholar. There is a great deal of debate about the economic ramifications of the various commodity agreements. See generally A. Law, International Commodity Agreements (1975); D. McNicol, Commodity Agreements and Price Stabilization: A Policy Analysis (1978); F. Adams & S. Klein, Stabilizing World Commodity Markets (1978).

97 See Keohane & Nye, supra note 38, at 61.

98 See Haas, supra note 91, at 850.

99 See text at notes 69–74 supra.

100 A similar legitimization experience was observed in the ILO Committee of Experts; E. Haas, supra note 7, at 252–59.

101 The Archer and Koh groups at UNCLOS III were particularly successful. While the reasons for the success of particular negotiating groups may be hard to establish, it is possible to identify some general characteristics that appear to optimize the opportunity for success. In a recent article Barry Buzan identified three characteristics of a successful negotiating group established to address important political issues: size, quality of membership, and quality of leadership. Buzan, United We Stand, supra note 10, at 199. With some modification and the addition of a fourth characteristic, this list can be used to identify the salient qualities of a successful negotiating group established to address technical issues:

(1) Size: Preferably between 12 and 30 participants should be included to assure the inclusion of the key interests and necessary experts while permitting operational efficiency.

(2) Quality of membership: The group should include persons of high intellectual caliber who represent important interests and others with technical expertise.

(3) Quality of leadership: The chairman should be a person of exceptional qualities including personal prestige, mastery of the subject and the political setting, a reputation for impartiality and fair dealing, support from his or her delegation, and a large capacity for work.

(4) Procedures: The meetings of the group should be announced to the conference participants but closed to the public and conducted in a relatively informal collegial atmosphere, preferably in one language without a record. The agenda of the group should be well defined and manageable.

102 While this should be the responsibility of the home governments, there are ways that the conference organizers may encourage the accreditation of technically competent persons. Not only can it be understood that each delegation will have technical support, but the conference structure can make it clear that technically qualified persons will be required for certain conference activities, such as participation in a standing technical committee.

For financial and other legitimate reasons, all nations may not be able to have their own experts in all relevant fields. In such situations nations with similar interests should be encouraged to obtain the necessary expertise jointly. Encouragement and even financial support for these cooperative activities might be given by the appropriate international organizations and forums, e.g., the UNGA, UNCTAD, the Group of 77, regional organizations, and development programs.