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December 2014, No. 3 Vol. LI, Conference Diplomacy

The year 2014 marks the twentieth anniversary of the entry into force of the 1982 51³Ô¹Ï Convention on the Law of the Sea (the ¡°Convention¡±).¹ The Convention has been widely accepted. As of 16 November 2014, the number of States Parties to the Convention stood at 166, including the European Union.

During the commemoration of this anniversary at the twenty-fourth Meeting of States Parties on 9 June 2014, the Convention was described by the Secretary-General of the 51³Ô¹Ï as one of the most significant and visionary multilateral instruments of the twentieth century. He noted that as a ¡°Constitution for the oceans¡± most of its provisions were now widely recognized as reflecting customary international law and the Convention had shown its dynamic character through its ability to address new challenges. Delegations at the meeting underscored that the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out as well as its universal and unified character. They also highlighted that the Convention represented one of the most successful international treaties ever negotiated and paid tribute to the drafters, in particular Ambassador Arvid Pardo of Malta.²

The negotiations that led to the adoption of the Convention in 1982 were complex and lengthy, but they were also exemplary from the point of view of multilateral diplomacy. They began after 1967 when Ambassador Pardo¡¯s proposal to the General Assembly to examine ¡°the question of the reservation exclusively for peaceful purposes of the seabed and ocean floor, and the subsoil thereof, underlying the high seas, beyond the limits of present national jurisdiction and the use of their resources in the interests of mankind¡± led to the establishment of an ad hoc committee by the Assembly that same year. That committee was transformed one year later into the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (the ¡°Seabed Committee¡±).

In 1970, the General Assembly declared that the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, as well as the resources of the area, are the common heritage of mankind.³ It then transformed the Seabed Committee into a Preparatory Committee for the Third 51³Ô¹Ï Conference on the Law of the Sea (UNCLOS III).

In convening UNCLOS III, the General Assembly recognized that the problems of ocean space are closely interrelated and need to be considered as a whole. Therefore, when UNCLOS III began its work in 1973, it had before it an extensive list of issues and a great number of proposals and variants⁴ prepared by the Seabed Committee. There were also additional proposals submitted to the Conference itself.

UNCLOS III was therefore challenged to devise a negotiation process⁵ that would enable it to deal with the breadth and interrelationships among the issues, the complexity and novelty of some of those issues, the objective of a convention and the need to reach consensus among a large number of States with competing interests, as well as the absence of a preparatory text. The negotiators were also mindful of the inability of UNCLOS I and II in 1958 and 1960, respectively, to agree on the maximum breadth of the territorial sea and fishery limits.

The realization that the problems of ocean space are interrelated and need to be considered as a whole also led to the concept of package deal⁶ and its formalization in the Rules of Procedure of the Conference together with the agreement to proceed on the basis of consensus. The Conference recognized that due to the widely divergent interests on issues of such paramount importance to States, a process of simply voting through a majority view would not lead to a lasting legal regime. Therefore, the Rules of Procedure adopted by the Conference in 1974 departed from the pattern normally applicable to 51³Ô¹Ï conferences for the taking of decisions.⁷ They incorporated a ¡°Gentleman¡¯s Agreement¡±, approved by the General Assembly in 1973, which provided that the Conference should make every effort to reach agreement on substantive matters by way of consensus and that there should be no voting on such matters until all efforts at consensus had been exhausted. Before any substantive matter could be put to a vote, a determination had to be made by a two-thirds majority of representatives present and voting, including a majority of the States participating in that session of the Conference, that all efforts at reaching agreement had been exhausted.⁸

Although UNCLOS III did not invent consensus as a rule of decision-making, it was the first major international conference that decided to rely on this rule and developed a consensus technique that was, and still is, a unique contribution to global decision-making.⁹

Another novel procedure that was introduced at UNCLOS III which represented a departure from the traditional procedures of 51³Ô¹Ï intergovernmental codification conferences at that time was the convening of a conference without a draft negotiating text.

Faced with a great number of proposals and variants, the first tasks of the Conference included the reduction as much as possible of the number of texts before it on each subject or issue.¹⁰ The Conference established three main committees that would deal with the subjects covered by the Seabed Committee. In addition, many different interest groups composed of like-minded States based on mainly geographic interests, emerged on a number of issues.^11?For example, the coastal States group and the landlocked and geographically disadvantaged States group were composed of developed and developing States, thus marking the beginning of the partnership process.¹² Apart from the interest groups and traditional regional groups, a number of informal negotiating groups also emerged.

The Conference also vested a lot of authority in the ¡°Collegium¡±, namely the President of the Conference, the Chairmen of the three main Committees, the Chairman of the Drafting Committee and the Rapporteur-General.

In 1975, at the request of the Conference, the Chairmen of the three main Committees each prepared a single negotiating text covering the subjects entrusted to the respective Committee, which together constituted the Informal Single Negotiating Text. Subsequently, the President of the Conference submitted a text on the subject of settlement of disputes. Although acting at the request of the Conference, the President and Chairmen were under no instructions as to the substance of the texts and were free to choose from among the various proposals or draft their own text.¹³

Subsequent revised single negotiating texts were prepared by the President and Chairmen in a similar manner and were regarded as improved drafts and as reflecting trends in the Conference. The power vested in them was enormous since it was not easy for delegations to subsequently alter the text and the decision whether to revise it or not was also largely left to the President and Chairmen¡ªa practice that was unprecedented in the 51³Ô¹Ï.¹⁴

In 1977, after the Collegium produced an informal composite negotiating text, which consolidated in one document all the draft articles, seven issue-specific negotiating groups were established to resolve the remaining ¡°hard-core¡± issues. It was agreed that the Collegium would make no revision to the text unless the proposed change had received widespread and substantial support. The Conference was thus able to ensure that the package remained cohesive until such time as all the pieces fell into place.¹⁵

In April 1982, the Conference determined that all efforts at reaching consensus had been exhausted. At the end of that session, at the request of the United States of America, a recorded vote on the draft convention and resolutions took place. The draft convention was adopted on 30 April 1982 by 130 votes to 4 against, with 17 abstentions. On the day it opened for signature¡ª10 December 1982¡ªit received signatures from 117 States. Such overwhelming support had never before been demonstrated so concretely on the first day that a treaty opened for signature.^16?It was even more remarkable given that no reservations or exceptions may be made to the Convention unless expressly permitted by other articles of the Convention.

The benefits of the successful negotiation process used during UNCLOS III continue to be felt today. States generally judge each other¡¯s conduct by reference to the provisions of the Convention, even if a State is not a party to it.¹⁷

In addition, although the consensus technique at UNCLOS III implied that every State had to compromise, States have not formally proposed the reopening of the consideration of specific provisions of the Convention. Moreover, this consensus technique has continued to be applied in negotiations on oceans and law of the sea issues in the Meetings of States Parties to the Convention and in the General Assembly of the 51³Ô¹Ï. One example is the Agreement for the?Implementation of the Provisions of the 51³Ô¹Ï Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. It was adopted, by consensus, by the General Assembly in 1995.¹⁸

Notes

1??? 51³Ô¹Ï, Treaty Series, vol. 1833, No. 31363.

2??? Report of the Twenty-fourth Meeting of States Parties, New York, 9-13 June 2014 (SPLOS/277), p. 4/21.? See also 51³Ô¹Ï, 51³Ô¹Ï Convention on the Law of the Sea at 30: Reflections (New York, 51³Ô¹Ï, 2013).

3??? General Assembly Resolution 2749 (XXV).

4??? Document A/CONF.62/29 in Third 51³Ô¹Ï Conference on the Law of the Sea; Official Records, vol. iii (New York, 51³Ô¹Ï, 1975), p. 59¨C61.

5??? There are many articles that have been written on the negotiating process during UNCLOS III. For a comprehensive presentation of the process of negotiating the convention, see Tommy T.B. Koh and Shanmugam Jayakumar, ¡°The Negotiating Process Of The Third 51³Ô¹Ï Conference On The Law Of The Sea¡±, in 51³Ô¹Ï Convention on the Law of the Sea 1982: A Commentary, Vol. 1, Myron H. Nordquist, ed. (Dordrecht, Martinus Nijhoff Publishers), p. 29-134 (54).

6??? Alan Beesley, ¡°The Negotiating Strategy of UNCLOS III: Developing and Developed countries as Partners¨Ca Pattern for Future Multilateral international conferences?¡±, Law and Contemporary Problems, vol. 46, No.2 (spring 1983), p. 183-194 (185).

7??? Koh and Jayakumar, p. 99. See also footnote 5 above.

8??? A/CONF.62/30/Rev.3.

9??? Albert W. Koers, ¡°The third 51³Ô¹Ï Conference on the Law of The Sea¨Csome remarks on its contribution towards the making of international law¡±, in International Law and Its Sources: Liber Amicorum Maarten Bos, Wybo P. Heere, ed. (The Hague, the Netherlands, T.M.C. Asser Institute, 1989), p. 28.

10? Constantin A. Stavropoulos, ¡°Statement By C.A. Stavropoulos. Procedural Problems Of The Third Conference On The Law Of The Sea¡±, In 51³Ô¹Ï Convention On The Law Of The Sea 1982: A Commentary, p. lxiii.

11? For a complete list of the groups, see Koh and Jayakumar, p. 55.

12? Beesley, p. 186.

13? Koers, p. 29.

14? Koh and Jayakumar, p. 56.

15? Bernardo Zuleta, ¡°Introduction¡±, in The Law of the Sea. 51³Ô¹Ï Convention on the Law of the Sea with Index and Final Act of the Third 51³Ô¹Ï Conference on the Law of the Sea (New York, St. Martin¡¯s Press, Published in cooperation with the 51³Ô¹Ï (Sales No. E.83.V.5), 1983), p. xxiv.

16? Ibid.

17? Koers, p. 43.

18 ?51³Ô¹Ï, Treaty Series, vol. 2167, no. 37924.