It's now 'sink or swim' for UN's Law of the Sea treaty

The Law of the Sea Conference, so close last month to finalizing a treaty to regulate the economic, military, ecological, and legal aspects of the seas, is now at a critical stage.

A treaty could be signed by next year. Or, depending on the conclusions of a broad policy review by the Reagan administration, the UN could lose seven years of negotiation and find itself dealing with two or more conflicting treaties.

Because of the US decision not to engage in negotiations until the review has been concluded, the conference has decided to adjourn until a meeting in Geneva this August.

However, the US has let it be known that even by then its policy review will not be finished and that the coming meeting should limit itself to informal exchanges of views.

The US has changed its position four times within the last three weeks as to when it would really be ready to come up with a new policy. Now it says that this will not happen before the end of the year.

This has not earned much respect among the 150 participating countries. Many large countries, among them Brazil, Nigeria, Peru, and Canada, are believed to feel that the negotiations should be completed in August even without the United States and that a treaty should be signed anyway.

"It is difficult not to perceive the abrupt manner in which the US has treated the world community as shabby and arrogant," says one conservative Latin american ambassador.

According to well-placed sources, the five leading American firms intent on exploiting the mineral riches on the ocean floor feel that too many concessions have been made to developing nations by previous American negotiators. In particular, they believe the US should not be obligated to transfer its technology to the projected "authority" representing the world community.

They are also reported to feel that the treaty in its present form unreasonably limits the amount of minerals to be exploited. Furthermore some military advisers in Washington are reported to say that US concessions on sea bed mining in exchange for the Navy's global rights which have been largely secured by the treaty are not really necessary. In their opinion the US could deal bilaterally with the coastal nations involved.

One advantage to the US as well as to the Soviet Union never mentioned in public and looming large in the background is that the treaty would allow their warships to stop, linger, and maneuver at will within the "economic zone" whereas they are only allowed to pass through the territorial seas of individual countries.

Meanwhile there is a growing fear among delegates that if a treaty is not adopted, many countries would territorialize their "economic zone" and severely restrict fishing, off-shore oil, and other rights of the international community in their particular zone.

Tommy Koh, Ambassador of Singapore and president of the conference, says, "We must not assume that at the end of its review the US will conclude that a treaty is not in the national interest." According to many experienced negotiators here , the less developed countries would be willing to renegotiate minor changes such as the amount of mineral exploration allowed. They would not, however, agree to abolish the so called "parallel system" through which they would get a share of what is known as the "common heritage of mankind."

Domestic legislation authorizing unilateral exploitation of deep sea bed riches has been passed in the United States and West Germany and is about to be adopted in Britain. If these and other industrial nations enact reciprocal rights legislation this would amount to a mini-treaty among rich nations allowing them to go it alone.

"There is little doubt that if that happens the developing nations and the East bloc would finalize their own treaty," says Mr. koh. "Whether it would be wise to set forth on a confrontational path with the overwhelming majority of nations is debatable" says a Western ambassador. "A treaty without the United States would not have much meaning. But would a treaty signed by only 10 or 12 powerful countries provide the Western firms eager to go "seabed" with the legal and financial environment they need?" asks another Western high official.

Cooler heads among the delegates believe that the Reagan administration should be given time to work out and present its position at the beginning of next year.

"If the US says it has difficulties with the present draft and presents reasonable arguments, postponing by one year the finalization of the treaty will not be the problem. If it continues to signal that 'each man for himself' is now the name of the game, then it is entirely possible that as many as 120 countries will find a separate Law of the Sea Treaty next August if only to remind the United States that it cannot bully the rest of the world," says one senior analyst here.