The race to carve up the seas
Nations are battling for priceless seabed treasure.
Once pirates with swords held sway over the high seas. For the last 20 years, nations have used negotiators with razorsharp minds instead. But the new treasure is much more valuable than the plunder of ancient pirates, and the spoils lie far beneath the waves. DERWIN PEREIRA and PAUL JANSEN of the Foreign Desk look at how the world is on the brink of deciding how to share what may be the last unclaimed territory on the globe.
AT A DEPTH SO DEEP BENEATH THE high seas that your eyes would never be able to penetrate the gloom unless aided by artificial light – and your body would implode if it were unprotected – lie potato-sized lumps that represent wealth untold.
These blackish piles, which could be loved only by a geologist or a stockholder of a mining company, also represent a stumbling block.
Because of an argument over who are entitled to them, a comprehensive code of legal principles governing human activities at sea has been held up.
Now, 20 years after negotiators first began hammering out an agreement on who controls what stretches of water and who owns the resources of the oceans, the world has come to a crossroad.
Those negotiations, involving some 150 countries from 1973 to 1982, resulted in the United Nations Law of the Sea Convention – a comprehensive code of legal principles governing human activities at sea.
One hundred and thirty-eight nations signed a treaty in 1982 calling for the enactment of the Convention. Twenty-one more countries have signed it since then. The creation of the Convention was a historical milestone.
But while 159 nations have indicated acceptance of the Convention, only 60 have ratified it, making them legally-bound to comply with its provisions once it comes into force.
And there is the nub.
The Convention provides for its entry into force one year from the 60th ratification. Guyana set the clock ticking on Nov 16 last year, when it became the 60th ratifier. However, all the ratifying countries, with the exception of Iceland, came from the developing world. The developed countries, the United States, Japan, Germany, Britain and Australia among them, have refused to join in.
In a paper outlining Canberra’s position, Mr Crispin Conroy, an Australian official involved in new negotiations, put blame largely on Part 11 of the Convention. This section defines the minerals on the deep seabed as an internationally-owned resource and establishes a complex regime for their exploitation.
Countries with the technology and the financial muscle will not be able to mine the deep seabed at will. The Convention calls for the creation of an International Seabed Authority which will control mining through an organ called simply, and in a rather Orwellian mode, The Enterprise. Miners will have to pay royalties to The Enterprise which will also conduct its own mining operations in the high seas and pass some of the revenues to developing countries.
Critics of this section said it hindered free-market exploitation of the seabed, created another potentially monstrous bureaucracy which would need to be fed by contributions from members, and would lead to subsidised mining of minerals which would in turn hurt metal- producing countries.
Because these issues were not dealt with to the satisfaction of the industrialised countries, they stayed away. But as country after country ratified the treaty – and particularly when Guyana set the clock ticking – pressure began building up on both ratifiers and non-ratifiers for renewed discussion and greater compromise.
Among other things, ratifiers faced the uncomfortable prospect of having to bear the financial burden of Part 11 come Nov 16 this year without help from the rich countries. Non-ratifiers, on the other hand, were concerned that once the Convention came into force, it would be difficult to change Part 11, because of the treaty’s onerous amendment procedures.
Perhaps the biggest impetus for resolving difficulties came with a change in the United States’ attitude. Washington had led the industrial countries, including Britain and Germany, in opposing the mining section of the Convention.
American mining companies had lobbied strongly against the treaty. They had persuaded the Republican administration under then President Ronald Reagan that it was against US interests because it restricted private enterprise and would be a financial burden.
Washington also objected to the decision-making powers of the International Seabed Authority. A US State Department official who was involved in the deep seabed mining talks complained that there was “too much intervention and control of mining activities. The convention does not provide a market-based approach for deep seabed mining activities”.
But the US changed its course recently with the election of President Bill Clinton, a Democrat. The official said that while the US concerns over the treaty have not changed substantially, it was nonetheless willing to discuss the matter. He pointed to US participation currently in the informal consultations over the treaty chaired by UN secretary-general, Dr Boutros Ghali.
Bridge over troubled waters
THESE consultations have borne fruit in the form of a 25-page draft agreement to resolve the differences between the developed and developing world. Mr Satya Nandan, Fiji’s representative to the informal consultations, and the man responsible for drafting the text of this agreement, said diplomats were fine-tuning the draft and saw consensus in the following key areas:
* The Enterprise: Contributions by states would be eliminated. It would be placed on an equal footing with commercial mining operators. It would not be given preferential rights that would give it a competitive advantage. The Enterprise would operate as part of the International Seabed Authority’s secretariat rather than act independently. The planned secretariat would also be reduced in size.
* Technology transfer: Commercial mining operators would not be compelled to transfer their technology to developing countries or The Enterprise, the operating arm of the ISA. Technology would be made available to states through joint venture arrangements.
* Decision making: Land-based producers of seabed minerals, investors in seabed mining activity and the minerals’ consumers would be able to block decisions taken by the International Seabed Authority’s 36-member executive council. The council comprises mainly developing countries which could vote on substantive issues with a two-thirds majority. Negotiations are taking place currently on the developing countries’ demands to have a fourth chamber with blocking powers.
* Economic assistance: A certain amount of the proceeds of seabed mining should be set aside in an assistance fund for developing countries which were land-based producers.
Mr Nandan, a UN under-secretary general for law of the sea from 1983 to 1992, said: “We have streamlined the deep seabed mining provisions to make it more commercial-oriented and take account of the fact that seabed mining will not take place until the next century.”
For this agreement, once finalised, to come into effect and amend the mining section of the 1982 Convention, 40 states will need to sign it. In addition, four of these signatories must be developed countries with deep seabed mining interest, for example, the United States and France.
Mr Nandan said: “This is because we want to get the industrial powers on board.”
Mr Elliot Richardson, who held four Cabinet positions under former US Presidents Richard Nixon and Gerald Ford and who was President Jimmy Carter’s chief delegate at the Law Of The Sea Conference, said the picture was very positive at the moment. But one could not discount the possibility of a “last-minute snag” that could derail talks.
There are concerns, for example, that the US Congress would not support the draft agreement. Mr Nandan observed that there would be some Congressional resistance because of the residual presence of right-wing views of the Reagan era.
But at the same time, he said, there was a growing view in Congress that the treaty could benefit a major maritime power like the US. At a time when America was reducing its presence around the world, it was important to have a treaty which set out the rules on the sea.
Many of the treaty’s key features – like the 19 km territorial sea, the 322 km exclusive economic zone, exploitation of the continental shelf by coastal states, the right of innocent passage through international straits and through the sea lanes of the archipelagic states – are of vital importance to the US with its huge fishing industry and its worldwide military and commercial interests.
It would be in the “broader interests” of Washington to accept the draft agreement and accede to the Convention, he said.
Other factors could also affect a US decision, such as a German or British accession to the agreement. International lawyer E. D. Brown, head of the Marine Law and Policy Centre at the University of Wales Cardiff, told The Sunday Times:
“It would isolate the US government which would then persuade Congress that it is in Washington’s interest to follow suit.”
All in the same boat
ONE thing that may throw a spanner in the current negotiations is the view held by some nations that the industrialised countries are trying to gain more at the expense of the developing nations.
Some observers feel that when the UN Law Of The Sea Convention was drawn up 12 years ago, the interests of both developing countries and the industrial powers had been taken into account already.
Dr Mochtar Kusumaatmadja, former Indonesian Foreign Affairs Minister, told The Sunday Times: “For both developed and developing world, the increased control over resources and seas adjacent to the coast is important as people have become more dependent on the seas as a source of wealth.”
He added that the developed countries like the US, the former Soviet Union and Australia stood to gain the most because of their long coastlines.
Others said that if the draft agreement was accepted and allowed to alter the complexion of the original Convention, the industrial countries would be the real winners – by not having kept to their side of the 1982 deal.
In exchange for new international laws guaranteeing their right of transit through international straits, the US and other Western nations agreed during years of tough negotiations to share the seabed’s riches with the developing world.
But the proposed changes to the seabed mining section gave rise to the view that the West wanted to have its cake and eat it.
Dr B. A. Hamzah, director-general of the Malaysian Institute of Maritime Affairs, said: “The treaty is a package deal involving a lot of trade-offs between the two sides. The industrial countries got what they wanted and are now reneging on their promises.”
A dangerous precedent was also being set.
“What is to stop other countries from picking and choosing parts of the treaty they want to change?” he asked.
Mr Nandan disagreed. All conventions provided for amendments to their provisions, he said.
Getting the industrial countries on board would give the treaty a universal character, rather than one in which there were two seabed regimes. The developing world would also gain from the technology and financial clout of the industrial powers.
Said Mr Nandan: “In a compromise, all sides have to give.”
Australia’s Mr Conroy was optimistic. He felt that the changes in the negotiations in recent months were “quite revolutionary”.
He noted that the developing nations had once viewed Part 11 of the treaty as “a sacred cow”. And the US had refused to discuss the matter.
The fact that the parties were now involved in consultations, albeit informally, was a good sign. Wrote Mr Conroy in his situation report: “While many uncertainties remain and time is quickly running out to achieve a solution enjoying consensus support, there is now guarded optimism of a successful outcome in 1994.”