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2
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84913711819
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In his introduction to the treaty, Bernardo Zuleta, Under-Secretary-General and Special Representative of the Secretary-General for the Law of the Sea, described the package as follows: ‘It is, however, the conceptual underpinnings of the Convention as a “package” which is its most significant quality, and has contributed most distinctly to the remarkable achievement of the Convention. Its quality as a package is a result of the singular nature of the circumstances from which it emerged, which factors included the close interrelationship of the many different issues involved, the large number of participating States, and the vast number of often conflicting interests which frequently cut across the traditional lines of negotiation by region. In addition, the strong desire that the Convention allow for flexibility of practice in order to ensure durability over time, and so as not to encroach upon the sovereignty of States, was recognized [[Truncated]]
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3
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84913707889
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The concept of consensus was incorporated into the rules of procedure of the conference. Conference document A/Conf.62/30. Consensus, however, was not defined. It was generally believed to mean lack of significant objection, as perceived by the conference president.
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4
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84913695520
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The dispute settlement provisions are to be found in Part XV of the treaty.
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5
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84913703535
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The regime of the exclusive economic zone is spelled out in Part V of the treaty, Articles 55–75.
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6
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84913725853
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Treaty, Article 3.
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7
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84913703198
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Treaty, Part IV, Archipelagic States.
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8
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84913716471
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Treaty, Article 56, Rights, jurisdiction and duties of the coastal State in the exclusive economic zone.
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9
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84913717221
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Treaty, Article 58, Rights and duties of other States in the exclusive economic zone.
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10
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84913718304
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Treaty, Part III, Straits used for international navigation. Article 38 defines transit passage as follows: ‘Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.’
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11
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84913714866
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Treaty, Article 49.
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12
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84913733585
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Treaty, Article 53, defines this term as ‘the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone’. The term ‘normal mode’, which is also used in the straits provisions, is not defined, but it is understood to refer to the right of submarines to transit these waters submerged.
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13
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84913711926
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Treaty, Articles 143(1); 147(2)(d); 240(a); 242(1); 246(3) (marine scientific research), Articles 141; 155(2) (deep seabed mining), and Article 88 (the high seas).
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14
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84913718806
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Treaty, Articles 279; 280; 281(1); 283(1).
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17
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84913736279
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The 1982 treaty explicitly refers to the natural prolongation in Article 76(1).
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18
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84913709249
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Treaty, Article 64, recognizes both coastal States and appropriate international organizations as appropriate managers of marine mammals.
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19
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84913733140
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This is the scheme adopted by the treaty. See Article 66.
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20
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84913703408
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Part XI of the treaty governs seabed mining. Section 4 of that Part sets forth the provisions establishing the International Seabed Authority, consisting of an assembly, a council, and a secretariat. The composition, procedures, voting and powers of these bodies are carefully spelled out.
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21
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84913702816
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The limits of national jurisdiction in the treaty are the outer limits of the exclusive economic zone, or the outer limits of the continental shelf where the shelf extends beyond that zone.
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22
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84913696395
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These rules are set out in the treaty, Articles 55 through 73.
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23
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84913731785
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There is some controversy over this issue. Article 64 calls for cooperation through appropriate international organizations for the management of highly migratory species. It has been the position of the USA that this is the only mechanism provided. However, the Article makes clear that this procedure applies ‘in addition to the other provisions of the Part’. This has been interpreted by most coastal States that the primary jurisdiction within the exclusive economic zone rests with the State as in the case of other fish within the zone.
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24
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84913701029
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While this may be the desired objective, differences in juridical positions mentioned in the previous note have made it impossible for the USA and other coastal States through whose waters tuna migrate to create an effective international organization. Such coastal States see such an organization would be an usurpation of their sovereign rights over tuna.
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25
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84913710715
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It is far beyond the scope of this paper to discuss these rules. It should be noted, however, that the treaty, in addition to creating the Authority, creates a mining arm of that Authority called the Enterprise. Many of the rules distasteful to the USA involve assurances that the Enterprise will be competitive with any private mining undertaken by international consortia or state owned companies. Thus, there are rules requiring the financing of the Enterprise, the tranfer of technology to it, and rules guaranteeing that the Enterprise will have access to high quality mine sites. While such rules clearly help the Enterprise to compete fairly with the private side, it is hardly a system that a free market would create.
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26
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84913708605
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Compare, in this regard, Article 61 (Conservation of living resources) with Article 62 (Utilization of living resources).
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27
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84913715229
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Treaty, Article 62(1).
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28
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84913697768
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The treaty says that conservation measures ‘shall be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors’. Article 61(2).
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29
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84913697113
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Article 62(2) assures access by foreign fishermen to any ‘surplus’ in the zone, that is, over and above those fish which the coastal State may take for itself. Paragraph 3 sets the criteria the coastal State should apply in deciding how to allocate this surplus among the foreign fleets.
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30
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84913709207
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Treaty, Article 66(1): ‘States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks.’
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31
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84913709129
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Article 77 of the treaty states that the coastal State's rights over the natural resources of its continental shelf is exclusive, whether or not they are exploited by that State.
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32
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84913711784
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For example, the method of fishing for lobster by the Bahamas does not permit them to take even half of the annual resource, yet they exclude foreign fishing from those waters. The result is that many animals die of natural mortality with corresponding loss of protein otherwise available.
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33
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84913723086
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Article 297 of the treaty provides for a system of concillation (not arbitration) with regard to fisheries disputes only when the coastal State has manifestly failed to comply with its obligation to properly conserve the resource, it has arbitrarily refused to determine allowable catch and fishing capacity, or has arbitrarily refused to allocate surplus. The words ‘manifestly’ and ‘arbitrarily’, used in the treaty texts, make decisions of the coastal State essentially irreversible.
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34
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84913716570
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For example, Article 239 says that ‘States and competent international organizations shall promote and facilitate the development and conduct of marine scientific research in accordance with this Convention’. And Article 242 calls upon States to promote international cooperation in marine scientific research.
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35
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84913726276
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Treaty, Article 246(2).
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36
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84913695407
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Treaty, Article 246(5).
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37
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84913717058
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Treaty, Article 297(2) makes it clear that the coastal State's exercise of discretion cannot be challenged.
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38
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84913733333
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Treaty, Article 249 (Duty to comply with certain conditions).
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39
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84913733617
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Treaty, Article 211(2).
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40
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84913696736
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Treaty, Article 211(5).
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41
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84913728572
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Treaty, Article 207.
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42
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84913736062
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Treaty, Article 217. The traditional flag State enforcement rules were strengthened in this provision to make the system more effective.
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43
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84913700592
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Treaty, Article 218.
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44
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84913710406
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Treaty, Article 220.
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45
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84913701520
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Treaty, Article 297(1).
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