Monster from the deep; return of UNCLOS.

• Author: Rubin, Alfred P.
• Position: United Nations Convention on the Law of the Sea

IN DECEMBER OF 1982, after about nine years of negotiation, a comprehensive United Nations Convention on the Law of the Sea (UNCLOS) was concluded at Montego Bay, Jamaica.

The UNCLOS reflects a consensus that ocean resources should be used for the benefit of all mankind, and an assumption that the free-market system is selfish; that capitalism benefits only capitalists and cannot be controlled to make it benefit society in general. A catch-phrase was used to refer to this orientation; the oceans were to be regarded as the "common heritage of mankind." As substance was sought to be put into this phrase, it was gradually eroded until it survived in only one part of the UNCLOS: Part XI, the rules relating to "the Area and its resources" (article 136). The Area is defined in article 1 of UNCLOS as the sea-bed and ocean floor and subsoil beyond the limits of national jurisdiction. It does not include the water column anywhere, the continental shelf, or any other places in which states enforce exclusive economic or territorial rights. UNCLOS sets up a complex regime in which law-making power for the Area was agreed to be given to a multinational "Authority" composed of all the parties to UNCLOS acting by a two-thirds majority in matters of substance.

UNCLOS provides that sixty unqualified ratifications will bring it into force. Reservations are not permitted. Although no industrialized state has ratified UNCLOS yet, sixty states of the developing world have. The executive branch of the United States Government is now seriously considering submitting the UNCLOS to the Senate for "advice and consent" and, if we do ratify, other industrialized states can be expected to follow.

The major objection to UNCLOS raised by the Reagan Administration in 1982 relates to the powers given to the Authority to make rules to govern national efforts to mine the resources of the deep sea-bed and eventually, through its own commercial arm, to compete for those resources. In order to operate effectively, the Authority was to sell licenses, thus gaining an income under an extremely complex assessment scale (UNCLOS Annex III, article 13). The Reagan Administration considered this a form of public enterprise (which it certainly was) inconsistent with American free market principles, therefore unacceptable.

Much of even the industrialized world disagrees with this position. Ideologically, it seems hypocritical: even in the United States we have regulated industries and...