At the resumed eighth session,183 Australia played a vigorous role in seeking to resolve the outstanding issues relating to the Council of the new Seabed Authority and continued to play a facilitating role on the financial aspects of seabed mining. The most notable result in the first committee was the achievement of the renegotiation of the texts relating to financing the Enterprise and financial terms under which contractors could mine the seabed. Australia was directly involved in negotiations on the production control issue where the question was left unresolved. The most difficult question for Australia in Committee Two was the issue of oceanic ridges relating to shelf limits which, when it appeared at the previous session looked like predominantly a technical issue but emerged at the resumed session as a political issue which threatened the ‘biscuits form ula’. In the Third Committee the United States offered a compromise formula on research on the shelf beyond 200 miles which met Australian concerns. While no revised text was issued to ICNT Rev 1 the conference did agree to adopt a treaty following 10 weeks of meetings in 1980. Signing was to take place in Caracas sometime in 1981. Outstanding issues such as seabed mining, MSR and the continental shelf were deferred to the ninth session.
131 Outside events were to complicate the session when news accounts appeared detailing a new US policy of naval and air incursions where coastal states claimed territorial seas beyond the three miles then recognized by the U S .184 Australia joined in a statement by the Coastal States Group expressing concern at press reports that the US had embarked on such a policy but A ustralia’s position here was dictated largely by tactical considerations.
The G roup’s statement expressed the view that customary international law recognized a territorial sea up to a limit of 12 miles and that US claims that the regime of high seas commenced beyond three miles were an ‘anachronism’.185 Several participants resented what they saw as a US pressure tactic to spur completion of a law of the sea treaty.186
Seabed Mining
Issues relating to decision making in the Council and production controls dom inated Australian efforts in the first committee. The critical issue relating to the Council remained whether western industrialized states could be assured of a blocking vote or not. The ICNT Rev 1 enabled 10 members o f the Council (assuming the 36 members were present) to block a decision.187 It would not therefore have enabled the western industrialised countries who claimed to have an overriding interest in seabed mining to bloc decisions adverse to their interests. As delegates were, after all ‘setting up the executive body of the first international organization with the prospect of automatic revenue of billions of dollars, a body moreover with broad jurisdiction over half the surface of the globe’188 the issue was, not surprisingly, highly charged. The main issues discussed revolved around whether the same majority should be required for all decisions of substance and the size o f a blocking vote if there was to be one. The G77 were adamant that it ‘would not agree that minorities could bloc all substantive issues. W ith respect to the size of the blocking vote the United States, EEC and Japan were insistent that they should be able to bloc a decision without the need to secure support from any other group in the Council. The Eastern Europeans on the other hand (would) not permit western industrialized countries to have a blocking vote if Eastern Europeans (did) not have one also’.189 Australia’s desire to see outstanding first committee issues resolved in the interests of an overall Convention saw the delegation actively involved in seeking compromise.
Australia chaired a small drafting group to consider the issue190 that was instrumental in producing a formula, that while leaving the crucial blocking figure unresolved and the list o f issues over which the industrialized countries needed special protection,191 did produce a system which was considered by the Chairman of Committee One as one that
‘must be kept in view as an idea which may lead to consensus’.192 In the same group chaired by Australia a proposal was produced relating to the issue of approval of work plans by the Council which again was a sensitive issue between seabed mining countries and G 77.193 Because of the closed nature of this work it is not possible to evaluate A ustralia’s role within the group. It is notable, however, that the Chairman of the Working Group of 21 and NG3 on the Assembly and Council gave special thanks to A ustralia’s Keith Brennan for his work on these issues in the working group.194 As will be discussed later the high quality of A ustralia’s delegation, particularly its leader Brennan, allowed Australia to often take the limelight in mediating efforts through the conference.
Australia continued its work in the working group of 21 on the question o f financial terms of contracts where the group was most successful in renegotiating the texts relating to financing the Enterprise and financial terms under which contractors could mine the deep seabed.195 Australia’s main interest as far as the Enterprise was concerned seemed to be in tentatively raising the issues of the commercial advantage that the Enterprise was seen to enjoy and limiting the financial burden on states with respect to financing the E n terp rise.196 These concerns had been muted at earlier sessions and raising these concerns at this stage seemed inspired by the fact that with a convention now close the new provisions would have immediate financial im plications for states once the Convention came into force.197
The most difficult issue for Australia in Committee One continued to be the nickel production control issue. Various floor tonnages were prepared by both LBPs and the US, EEC and Japan with the LBPs still concerned that the figures being offered by the consumer countries were below their estimates of market growth, so that an agreement on such a floor would have meant seabed miners becoming their own suppliers, squeezing out the LBPs.198
Australia and other LBPs felt that at least some of these countries would, in treating seabed production as domestic production, be drawn into resorting to protective devices such as subsidies, quotas, administrative controls or the like to ensure that seabed production would have a market in a situation of over-production even if it was less economical than land- based production.199
Australia felt that the proposals put forward by the industrialized consumer countries at the session only heightened these dangers and ‘left the impression that these countries were sensitive only to their own short and medium term interests’.200 Despite the strength of Australian feelings it should not be thought, however, that the LBPs were totally united on tactics. Australia clearly felt that an over-riding importance was to get
the US committed to the actual level of the floor while other members, particularly Canada, rejected the proposals on the grounds that sufficient compromises had been made.201 According to the US delegation in the last three days of the session, Australia’s Chairman of the Delegation Keith Brennan, supported by other ‘m oderate’ LBPs made ‘an extraordinary effort to reach an agreement on an initial tonnage minimum floor’ and Chairman Nandan ‘worked closely with land-based producers such as Brennan and also with many consumer delegations, especially the US and the UK, in an unsuccessful, last- minute effort to produce a positive result. Despite this effort, the group was unable even to agree on a report of the meeting’.202 These negotiations were ‘some o f the most technically complicated o f the whole conference, for many different scenarios were proposed and the number of variables was daunting’.203 Behind the figures of course was the concern of Australia and other LBPs, that any result did not hurt their land based producers. The indications were that the issue would continue to be a difficult one and that Australia would maintain its position within the LBPs to lock the US into a formula that was seen to offer adequate protection for the LBPs.
C o m m ittee Tw o
Shelf issues dominated Australian policy in New York.204 At the Geneva eighth session the USSR presented an argument that there would need to be a specific provision to deal with the issue of oceanic ridges and the need for such an acceptable formulation was reflected in a footnote to Article 76 of ICNT/Rev l . 205 However what appeared as merely a technical issue of plugging a loophole at the eighth session ended up in New York raising very complex issues which had ‘significant political implications’.206
The nub of the issue was the Soviet fear that ‘enormous extensions of marine territory would accrue to states situated on oceanic ridges, at no point more than 2,500 metres below sea level’ 207 The USSR proposed a cut-off of 350 miles in respect of all oceanic ridges.208 Australia, however, was not in favour of opening up the definition for the delegation had bureaucratic advice that any exclusion of oceanic ridges from continental margins would have substantial implications for the margin claimed by Australia.209 However, apart from USSR there also seemed to be support from the US to close what it saw as a loophole in the text.210 The Margineers agreed to negotiate from the position that a provision on this subject should include a definition so as to protect ridges forming part of the natural prolongation.211 A ustralia’s position within the M argineers was difficult. Australia made it clear that no Australian interest required a cut-off limitation be added to the formula in ICNT Rev 1 and that a correct interpretation of the Irish formula did not lend itself to improper exercise of coastal state jurisdiction of submarine areas beyond the submerged prolongation of the land mass.212
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Indeed it was only after ‘very lengthy private negotiations’ that Australia had come to the view that the acceptance of this ‘quite significant limitation on coastal state rights was necessary in the interests at arriving at a solution which could be more generally acceptable to the conference as a whole’. The Australian delegate McKeown argued that Australian departments responsible for matters relating to Australia’s shelf would have greeted with ‘amazement’ the view that acceptance of cut-off limitations imposed no significant sacrifices on Australia’s part. Indeed the acceptance of a cut-off line on top of the lim itations of the Irish formula ‘cumulatively amount(ed) to a very significant surrender o f a position o f sovereign rights which coastal states believe they already possess under customary international law’.
W hile M cKeown recognized that a solution to the problem would have to avoid a situation in which the coastal state could use ocean ridges to extend their shelves far beyond what is ‘generally understood to be the natural prolongation of their land m ass’ it was also necessary to preserve legitimate application of the natural prolongation concept. However, given the Soviet and US position on the issue it seemed the Margineers had little choice but to negotiate a formula that would somehow ensure that any provision would not limit the rights of a coastal state in accordance with the ‘biscuits’ formula. In the end Australia, despite its reluctance to even have the issue opened, sponsored a proposal on the issue with other Margineers.213 Australia made it clear, however, that its support for the proposal was only on the basis that it was important for the ‘conference as a whole’ that concerns that abuses could occur be resolved. What lay behind Australia’s approach was a real concern that the shelf limits would come unstuck by an inadequate approach to this issue.214
In the event the Margineers’ proposal ran into trouble because the LLGDs group claimed that (like the Soviet proposal) far from limiting the coastal states rights it would enable a coastal state to extend its control over ridges to which it would have no legitimate claim from 200 to 350 miles.215 A proposal by Japan then emerged that sought to meet these concerns by cutting off mid-oceanic ridges at 200 miles216 received broad support within the negotiating group217 thus leaving Australia with the task of considering whether it could live with such a formula at the next session.
Sri Lanka lobbied hard at the session to have its amendment to the Irish formula accep ted ,218 which was intended to provide for the unusual Sri Lankan continental margin, where application of the Irish formula would have deprived it of approximately half of its 600 mile wide margin.219 Australia again demonstrated its sensitivity to any reopening of the biscuits formula here. Australia was opposed to giving Sri Lanka a
unique exemption from the cut-off lines in the ‘biscuit formula’ although it felt that it may be possible to devise some amendments to the Irish formula to accomm odate Sri Lanka.220 While Sri Lanka’s draft received much sympathy Australia was by no means alone in believing that the text should not be ‘cluttered with single state exceptions’221 and the issue remained unresolved.222
Revenue sharing discussions were overshadowed by the question of the delineation of the shelf and much of the discussion am ounted to a ‘reiteration o f w ell known positions’.223 Australia, however, outlined its views in both Margineers Group and in NG6. While there was broad support for the system outlined in Article 82 there were differences with respect to both the grace period and the rate. The Margineers group held fast on the five year grace period, but some thought that the rate of 7 per cent too high. However, some LLGDS considered the rate too low.224 Australia stressed its opposition to Article 82 although instead of highlighting its position of in principle objections to revenue sharing acknowledged that such an article was inevitable in any final Convention. Australia’s main concern in participating in discussions was to minimize rates of payment by stressing that marginal projects must not be prevented from going ahead. In particular Australia’s role within the Margineers was to get the group to think through all the implications of the article so as to get the most favourable position for the group in negotiation. The risk here of course was that by taking on a high profile in opposing the issue the delegation was at risk of being blamed for any failure to reach agreement.225
Finally on shelf issues Australia worked with other Margineers in negotiations with USSR in an attempt to draft an annex to describe the composition and functions of the Commission on the Limits of the Continental Shelf.226 The main problem as far as Australia was concerned here was the call by Singapore for a Boundaries Commission far stronger than that envisaged in ICNT Rev 1. Singapore’s proposal involved that the words in Article 76(7) ‘taking into account these recommendations shall be final and binding’ be replaced by ‘shall be in accordance with these recommendation. However a coastal state may deviate from these recom m endations in consultation with the Commission and in accordance with a decision mutually arrived a t’.227 It has already been noted that for Australia a basic issue here was the extent to which the coastal state would retain the ultimate power to establish the outer limits o f the continental shelf. A ustralia’s position was, therefore, to support moves to retain the initiative and final decision as to the outer limit in the hands of the coastal state. Given, however, that the ICNT Rev 1 provision was criticized as putting into the hands of the coastal state unfettered discretion to place its outer shelf where it pleased228 (except that it should ‘take into account’ the views of the Commission) it seemed that a compromise would need to
be arrived at. In that situation Australia’s position seemed likely to be guided closely by the Margineers.
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Finally in Committee Two there were two other matters where Australia became involved. First the issue of innocent passage through the territorial sea was an issue left over from the eighth session because of the Belgium amendment and was resolved to Australia’s satisfaction without much controversy.229
Second, Australia now supported US attempts to strengthen protection for marine mammals. Tentative agreement was reached with a group of interested states, (including Australia), called together by the United States to negotiate improvements on the conservation of marine mammals.230 The US draft text231 still referred to the singular expression ‘international organisation’ (and not organisations as Australia thought may be necessary) in the area of management of marine mammals.232 It was reflected in the Chairman’s Final report as the basis for further discussion.233 Australia’s reaction to the US text was this time generally favourable although Australia had some concern that one phrase in their proposal could have been interpreted as weakening international authority over marine mammals.234 Generally, however, Australia was more supportive o f US efforts to strengthen the conservation of marine mammals than it had been at previous sessions, a position in part that appeared to be prompted by a desire to reach some accommodation with the US in the MSR area, and also because of the change in policy in April 1979 from one of conservative utilisation o f whale stocks controlled by international agreement to an active policy of protection.235
Committee Three
MSR was the only subject discussed in the third committee and the US amendments dominated discussion.236 The main issue for Australia was that of research on the shelf beyond 200 nautical miles. Early in the session a middle ground emerged on a system whereby (1) coastal states would be notified of all research on the shelf beyond 200 nautical miles; (2) coastal states would have rights of participation and have access to results of all such research; (3) coastal state comment would be required for any research entailing the use of explosives, drilling or artificial islands; (4) coastal states would defer the exercise of the right of consent in areas other than those which they designated as being of exploration and exploitation interest to them.237