Law of the Sea: why the US should reverse course

With the convening of the plenary session of the Third United Nations Conference on Law of the Sea in New York on Sept. 22, the United States will have a rare opportunity: It can rethink its position on the treaty encompassing two-thirds of the world's surface - and reverse its earlier opposition to the treaty.

Begun in earnest in 1974, the Law of the Sea Conference is a monumental effort. Although it is easy (and fair) to criticize delegates for taking so long to reach an agreement, the time span is more easily understood when one recognizes that more than 150 states debated nearly 100 issues.

Mathematicians may enjoy the combinations and permutations involved in those numbers; diplomats do not. With the exception of the final US actions (when the Reagan administration first stalled the process by demanding time to review the treaty and then voted against the treaty - and the policies of the Nixon, Ford, and Carter administrations), the negotiations were a victory for compromise and common sense.

What does the treaty provide for? Legalese aside, the treaty protects the US and all of its interests far better than was the case prior to the conference. Key elements of the treaty are:

* A 12-mile territorial sea;

* Unimpeded transit through more than 100 international straits which, with the territorial sea extended from 3 to 12 miles, come under coastal sovereignty;

* A 200-mile economic zone in which coastal states have sovereign rights for the purpose of exploring and exploiting living and nonliving resources;

* Special fisheries regimes for species like salmon and tuna which migrate inside and outside 200-mile limits;

* Coastal state jurisdiction to a defined outer limit of the continental shelf;

* Pollution regulations which recognize international standards and coastal, flag, or port state enforcement of those regulations;

* Coastal state control over marine scientific research in the economic zone and on the continental shelf;

* Dispute settlement mechanisms which provide that each party to the convention will select one of four listed methods for resolving peaceably disputes which will arise under the treaty; and, most controversially,

* A regime for the deep seabed, the area beyond the economic zone and continental shelf, which divides the deep seabed between mining states and an international authority created to protect the interests of states which do not have the ability to mine the area themselves.

Washington did not get all that it wanted in the negotiation; it did get most of it. While the deep seabed regime presents potential burdens, it is the idea of any international authority with regulatory powers, not the burdens, that many opponents object to. Unintentionally, the treaty's opponents may have produced the unwanted result of forcing US corporations abroad. Since mining operations require financing and financing needs the security which only a treaty can provide, American mining industry may incorporate in other countries.

If during the past year the US had focused on negotiations rather than rhetoric, it might have done better. By threatening to pull out of the conference, the US effected some last-minute concessions; by taking a hard-line stance, though, it also failed to produce changes which were attainable in such areas as the sale of technology.

Negotiation means compromise. We cannot - and should not - expect to have our way on each and every issue. The question is did the US obtain enough to protect its national interests? Or is the treaty as objectionable as the far right claims?

In this observer's view, and it is admittedly a prejudiced view since I worked on the negotiations, we clearly did. But we just as clearly failed to convey to the American public and its elected representatives what we accomplished. Perhaps if more time had been spent on Capitol Hill rather than interdepartmental squabbles, we could have convinced members of Congress that the treaty is in our best interests and that the right is wrong in opposing it.

This is, after all, 1982, not 1882. The days of manifest destiny and the partition of the world among a favored few are behind us. We no longer can dictate to the rest of the world; we have to recognize that negotiation means, by definition, that we will have to give up some of the things that we value to obtain others. So long as the balance favors US national interests, we should accept the result.

On the final vote, 130 countries voted in favor of the treaty and 17 nations abstained. Four - the US, Israel, Turkey, and Venezuela - voted against it.

Where do we go from here? We can reverse our position and sign the treaty. We can avoid standing in the way of efforts to improve the treaty, either before it is open for signature or after signature. And we can explain the treaty to the US Senate, thereby laying the groundwork for its advice and consent to the treaty as drafted or improved.

For both opponents and supporters of the treaty, however, one point should be borne in mind: The US has always been reluctant to violate what others perceive to be existing law. In 1975, when Ecuador seized US tuna boats for fishing within 200 miles of its coast and violating Ecuadorian law which we did not recognize, the fines were paid by our fishermen. If we, through our citizens, acceded to one state's unilaterally declared law, what will we do when 130 (or more) states formulate a new law? Ironically, we will probably bind ourselves to that law, despite so vehemently opposing it at the 11th hour.Roger H. Hull, formerly deputy staff director of the National Security Council interagency tas