Dept. of State Bulletin, Vol. 81, No. 2048, Mar. 1981, p. 32. Ecuador -P.F. On October 21, 1980, Ecuadoran authorities seized three United States vessels, the Carol Linda, Cindy Ann and Mary S., over 100 miles off the coast of Ecuador for fishing for tuna without Ecuadoran authorization. On November 4, 1980, Ecuador was certified by the Department of State under section 205(a) of the Fishery Conservation and Management Act, 16 U.S.C. 1825(a), as having seized United States vessels under a claim of jurisdiction not recognized by the United States. Thereafter, the Secretary of the Treasury, by a notice published in the Federal Register on November 21, 1980, and effective the same date, prohibited the entry for consumption or the withdrawal from warehouse for consumption of tuna and tuna products from Ecuador, under section 205(b) of the Act, 16 U.S.C. 1825(b). Fed. Reg., Vol. 45, No. 227, Nov. 21, 1980, p. 77219. The import prohibition was removed, effective Apr. 19, 1983. Ibid., Vol. 48, No. 76, Apr. 19, 1983, p. 16798. §5 -P.F. The Deep Seabed and the High Seas Third U.N. Conference on the Law of the Sea Ambassador Elliot L. Richardson, the President's Special Representative for the Third United Nations Conference on the Law of the Sea, briefed the House Committee on Foreign Affairs on October 1, 1980 upon the accomplishments of the Resumed Ninth Session of the Law of the Sea Conference, held at Geneva, July 28-August 29, 1980. Describing the accomplishments of the resumed session in regard to the deep seabed mining regime, as its "most important", Ambassador Richardson outlined them as follows: The most important accomplishments of the resumed session in Geneva, as our report indicates, concern the Deep Seabed Mining Regime. The new text provides for the decisionmaking procedures of the Council of the Seabed Authority and related matters and also contains improvements and clarifications of other provisions dealing with the system of exploration and exploitation, as well as with financial matters. The voting issue had long been recognized as the single most difficult, outstanding issue. And at one stage, in the Geneva session the issue was, in fact, completely deadlocked. The problem, as the committee is aware, was that of how to insure that important decisions could not be taken contrary to the interests of the States most affected, particularly the Western seabed mining and consumer nations. The deadlock was broken by a proposal to make decisions on the most sensitive issues subject to consensus. The issues that have in fact been made subject to consensus are those concerning production policies and limitations, adoption of rules, regulations, and procedures of the Authority, and the adoption of amendments to the seabed mining part of the convention, including the relevant annexes. A critical element in this compromise is a provision of the final clauses stating that the draft rules, regulations, and procedures adopted by the Preparatory Commission shall apply, provisionally, from the date of entry into force of the convention, pending adoption by the Authority of permanent rules, regulations, and procedures. The effect of this, therefore, is that once the rules, regulations, and procedures have been negotiated in the Preparatory Commission, we will be able, with confidence, to inform the Congress that these rules, regulations, and procedures will, in fact, take effect as the provisional rules, regulations, and procedures of the Authority from the day when it first opens its doors for business, and that changes in these will require our concurrence. The remaining issues not subject to consensus are subject, in the case of the most important of these, to a three-fourths vote and the remainder to a two-thirds majority. One of the related problems that had proven extremely stubborn and intractable in the past was the problem of action by the Council with respect to approval of contracts. An enormous amount of effort had gone into the formulation of criteria for the approval of plans of work and contracts with seabed mining entities, to assure that these criteria would be as objective and as nearly automatic as possible. And obviously it would have destroyed this result had the Council, by an easily achievable majority, been able to prevent the approval of a plan of work. This issue has now been resolved on the basis that if a plan of work has been approved by the Legal and Technical Commission, it then can be disapproved by the Council only by consensus, excluding from the consensus requirement the State sponsoring the contract, itself. That means, then, that one State other than the sponsoring State can prevent disapproval. That takes you then to the question of how the contract gets approved by the Technical Commission. The Legal [and] Technical Commission is a body whose function is intended to be professional. We were able to get a number of improvements in the text designed to emphasize the degree to which its function is to be carried out in a nonpolitical professional manner. As a compromise the question of voting in the Legal and Technical Commission will be left for later determination in the rules, regulations, and procedures of the Preparatory Commission. That means, in turn, that the United States will be in a strong position to influence that outcome, because, by the time the Preparatory Commission meets the participating countries will be aware that eventual ratification of the treaty by the United States will turn on the adequacy of these rules, regulations, and procedures. The other parts of the seabed mining text dealt with in Geneva include, as I mentioned briefly, some improvements in the provisions with respect to financing the enterprise. There is no longer automatic liability for any shortfall in financing the enterprise resulting from the delay or failure of some States to ratify the convention. There have also been some improvements in other provisions regarding the financing of the enterprise, including the callup of funds as needed, default procedures, and improved repayment procedures. With respect to the production ceiling, the so-called splitcontracting system has been fully implemented throughout the text. And we were able to get general acceptance of a floor provision which assures that even in the event of a low-growth rate in nickel consumption there would still be substantial tonnage available to seabed mining companies. The power of a commodity conference to decide the question of what production from the area the Authority will represent has been protected. The 1980 Geneva Session and Status of the Negotiations on the Law of the Sea: Hearing before the House Comm. on For. Aff., 96th Cong., 2d sess. (1980), pp. 3-4. The U.S. Delegation Report on the Resumed Ninth Session of the Third United Nations Conference on the Law of the Sea, July 28-Aug. 29, 1980, Geneva, summarized the resumed session's negotiations on seabeds, as follows: Seabeds The negotiation of new texts dealing with the major outstanding deep seabeds issues constitutes the decisive breakthrough of this session of the Conference. These new texts provide for the decisionmaking procedures of the Council of the Seabed Authority and related matters, and also contain improvements and clarifications of other texts dealing with the system of exploration and exploitation as well as with financial matters. The single most significant obstacle facing this session of the Conference was the impasse over voting in the 36-member Council of the Seabed Authority. The fundamental question in our view was how to ensure that important decisions could not be taken contrary to the interests of states most affected, particularly the western seabed mining and consumer nations. The developing countries were strongly insistent upon equal weight being given to each member's vote, and the negotiations were further complicated by the refusal of the Soviet Union to accept any result which it considered discriminatory. The deadlock was broken by a proposal to make decisions on the most sensitive issues subject to consensus. Given the risks of paralysis in a system under which each Council member would have an equal, potentially blocking vote, it was essential that the number of issues requiring a consensus be limited. Other important issues could then be made subject to a three-fourths vote; the remainder, a lower majority. Under the final compromise, substantive issues requiring decision by the Council are divided into three categories. Depending on their sensitivity, decisions require either a two-thirds or three-fourths vote, that includes a majority of the total membership of the Council, or consensus (defined to mean the absence of any formal objection). The decisions subject to the consensus procedure are those concerning production policies and limitations, the adoption of rules, regulations and procedures of the Authority, and the adoption of amendments to Part XI of the Convention, including Annexes III and IV. This result is combined with a technical streamlining of the provisions of the Convention dealing with rules, regulations and procedures which makes clear that the procedure requiring consensus in the Council applies to the three decisions noted above. The emergence of this compromise in turn made it possible to resolve certain other substantive issues by providing that their solution would be set forth in the rules, regulations and procedures of the Authority. A critical element in this overall First Committee settlement is found in the paragraph of the final clauses which states that the draft rules, regulations and procedures adopted by the Preparatory Commission shall apply provisionally from the date of entry into force of the Convention pending adoption by the Authority of rules, regulations and procedures. Many governments may not, therefore, deposit instruments of ratification or accession to the Convention until the draft rules, regulations and procedures are completed by the Preparatory Commission. The question of Council voting posed a different type of problem with respect to approval of mining contracts. It is basic to the system set up in the treaty that a qualified applicant who satisfies the requirements of the Convention, and whose project would not exceed the specified production limitations or anti-monopoly requirements, should receive a contract. Accordingly, approval of plans of work should not be politicized in the Council. The text specifies that the Legal and Technical Commission must evaluate plans of work strictly on the basis of the criteria set forth in the treaty. If the Commission recommends approval, the proposed plan of work will be deemed approved unless the Council disapproves it by consensus (excluding the state or states making the application or sponsoring the applicant). On the other hand, disapproval of the proposed plan of work by the Commission could be reversed by a three-fourths vote of the Council. The rules, regulations and procedures of the Authority will establish the decisionmaking procedures of the Commission. There were a significant number of other changes in the seabeds text. The distribution of benefits from the seabeds, while effected by the Assembly, is subject to rules, regulations and procedures which must be adopted by both the Council and the Assembly. The so-called split contracting system has been fully implemented throughout the text, thus ensuring that early investors will not be frustrated by the production limitation or face premature procedures for selection among competing applicants. There is no longer automatic liability for any shortfall in financing the Enterprise resulting from the delay or failure of some states to ratify the Convention. There have also been some improvements in other provisions regarding the financing of the Enterprise, including the call-up of funds as needed, default procedures and improved repayment procedures. The power of commodity conferences to decide the question of what production from the Area the Authority will represent has been protected. The tax immunity provisions have been replaced by much better ones virtually identical to those included in the recent Common Fund Agreement. Seabed amendments do not enter into force until one year following the deposit of the necessary instruments of ratification, the same one-year period required for notice of denunciation. Ibid., pp. 24-26. On July 9, 1982, President Ronald Reagan announced that the United States would not sign the Convention on the Law of the Sea, adopted by the Conference on Apr. 30, 1982 (and subsequently opened for signature at Montego Bay, Jamaica, Dec. 10, 1982). See further, this Chapter, §1, ante, p. 584. On Sept. 2, 1982, the United States signed an Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed with France, the Federal Republic of Germany, and the United Kingdom. TIAS 10562; entered into force, Sept. 2, 1982. On Aug. 3, 1984, the United States signed at Geneva a Provisional Understanding Regarding Deep Seabed Matters with Belgium, France, the Federal Republic of Germany, Italy, Japan, The Netherlands, and the United Kingdom, the purpose of which was to avoid conflicts over deep seabed mine sites and to provide for regular consultations with respect to deep seabed mining. In conjunction with the signing of the Provisional Understanding, the United States exchanged notes with those parties already having deep seabed mining legislation (the United Kingdom, France, the Federal Republic of Germany, and Japan), confirming that their respective national laws regulate both exploration and commercial recovery of deep seabed mineral resources, and that they will implement the Provisional Understanding accordingly. TIAS ; entered into force, Sept. 2, 1984. Interim Legal Regime: Deep Seabed Hard Mineral On June 28, 1980, President Carter signed the Deep Seabed Hard Mineral Resources Act, "an act . . . to establish an interim procedure for the orderly development of hard mineral resources in the deep seabed, pending adoption of an international regime relating thereto..."(Public Law 96-293, 94 Stat. 533, 30 U.S.C. 1401 et seq.). Section 2 of the Act, 30 U.S.C. 1401, sets out in paragraph (a) sixteen Congressional findings that may be grouped around the following principal points: (1) United States requirements for certain hard minerals (nickel, copper, cobalt, and manganese); (2) the United States national interest in the availability of these resources independently of the export policies of other nations; (3) the necessity for domestic legislation establishing an interim legal regime, pending establishment by treaty to which the United States was party of an international regime, in order to encourage the "substantial investment" required to develop deep seabed mining technology and to bring about the exploration for and recovery of these hard mineral resources-under conditions and restrictions assuring protection of the marine environment. The twelfth Congressional finding states the United States legal opinion that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reasonable regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law. (94 Stat. 554.) Section 2, paragraph (b) declares that the purpose of the Act is, among others set out, to establish an interim program for regulating exploration for and commercial recovery of hard mineral resources of the deep seabed by United States citizens, pending the ratification by, and the entry into force for, the United States of a comprehensive Law of the Sea Treaty that (1) gives legal definition to the principle that the deep seabed's hard mineral resources are the common heritage of mankind and (2) assures nondiscriminatory access by all nations to them. Section 3, "International Objectives of this Act", 30 U.S.C. 1402, contains in paragraph (a) a jurisdictional statement, including as well a disclaimer of extraterritorial sovereignty by the United States. Under section 3(a) the United States (1) exercises its jurisdiction over United States citizens and vessels, and foreign persons and vessels otherwise subject to its jurisdiction, in the exercise of the high seas freedom to engage in exploration for, and commercial recovery of, hard mineral resources of the deep seabed in accordance with generally accepted |