The MacNeil/Lehrer Report; The Proposed Law of the Sea

ROBERT MacNEIL: Good evening. Ronald Reagan is giving a lot of things a second look and as a result has brought a lot of publicity to something few Americans paid much attention to before. It`s the negotiations to create an international law of the sea; that is, acceptable rules for all nations to use the sea and exploit its resources. The negotiations took on particular urgency as the possibility grew that valuable minerals could be mined from the ocean bottom. Many developing nations, enjoying majority power at the United Nations, demanded their share of the sea`s riches. But most of the difficulties had been ironed out, and delegates were gathering for what they thought would be the last conference before producing a draft treaty when the Reagan administration said, "Wait." It dismissed the bipartisan U.S. delegation, and said it wanted to review what had been agreed so far. Critics claimed the U.S. team had knuckled under to Third World pressure, and that the resulting compromises were against the U.S. national interest. The decision produced consternation at the conference. Tonight, is the proposed law of the sea the best deal the U.S. can get, or a dangerous sellout? Jim?

JIM LEHRER: Robin, the law of the sea negotiations have been underway for seven years. Some 2000 delegates from 158 countries have participated. The specific issues involved flow from a general premise first announced by President Johnson. The seabeds of the world, said Johnson, are a common heritage of mankind. Johnson said that in 1967 when the United Nations first set in motion a serious effort to craft an international agreement to share the heritage -- the wealth of me world`s seabeds. That finally grew into a formal U.N. Law of the Sea Conference in 1974, which Henry Kissinger called one of the most important in the 20th Century. The mandate was expanded to include all issues involving the seas, and for these last seven years that`s what the talk has been about -- fishing and navigation rights and pollution control among other things, as well as mining for minerals, oil and gas. For the four years of the Carter administration, the chief U.S. negotiator was Elliot Richardson, holder of four cabinet positions during the Nixon and Ford administrations, now an attorney here in Washington. Mr. Ambassador, how close to final agreement on a finished treaty are the negotiators right now?

Amb. ELUOT RICHARDSON: Well, we thought we were pretty close. There remained several procedural issues and the problem of agreement on the basic principles for drawing the boundaries between countries that are either side-by-side or across from each other. But of course the decision that has now been announced will undoubtedly require additional time in which the administration will be making up its mind what changes to seek.

LEHRER: The treaty as it now stands, or that you all finally negotiated up to this point -- is it a treaty that in your opinion is in the best interests of the United States?

Amb. RICHARDSON: Well, I would agree that it does need some improvement. I think how much it can be improved is a question of judgment which has to take into account the fact that there have been very hard-fought negotiations that have led to the basic provisions we now have. But I think that with these improvements, it clearly would be in the interests of the United States. Not only because it provides a secure framework for resource exploitation -- the oil and gas of the continental margin as well as the resources of the deep seabed; fish within our coastal waters -- but because it provides at the same time universally accepted rules governing navigation and overflight. These, as a matter of fact, were the original impetus for the negotiations so far as the United States was concerned -- the defense` interest in the mobility of our air and naval craft -- and this has been one of the most significant gains from these negotiations.

LEHRER: Well, let`s go to some of those specifics. The one that has caused the most attention is the seabed mining issue. In as "lay" terms as you can, and as simply as you can, what is in the treaty now? How would that be handled?

Amb. RICHARDSON: The first thing that it does is to establish an international authority that will, in effect, have managing responsibility for the access of all companies or countries to the opportunity to exploit these minerals. They are the minerals contained in black, more or less potato-sized objects at great depths in the ocean. And the premise is the one enunciated by President Johnson that you referred to -- that these belong to the world community as a whole. So this international seabed authority will administer the rules establishing the right to obtain a contract; it will collect payments from companies engaged in mining; it will administer provisions for the sale of technology to an international entity also engaging in mining; administer means of protecting the land- based producers of these metals: nickel, copper, cobalt and manganese --

LEHRER: Protect them from competition from seabed exploration?

Amb. RICHARDSON: -- and protect them from too-rapid an erosion of their markets from a probably unlikely buildup of seabed mining.

LEHRER: Well now, one of the complaints or one of the criticisms that has been raised has to do with this international body which would -- the criticism is that it would turn control over to an international body that would be dominated by the Third World, and in some way even by the Soviet Union or the Soviet bloc, and thus jeopardize our interests. Is that correct?

Amb. RICHARDSON: I don`t think it would jeopardize our interests because the premise of any assumption to that effect would have to be that we would have a clear, untrammeled right to engage in seabed mining without a treaty. Now, it is the position of the United States that as a matter of international law we have such a right, but that is a position that is shared by only a comparatively small number of industrial countries. The rest of the world denies it. And so we could expect to have serious legal harassment of our mining companies in the absence of a treaty. This has been one of the reasons why, even from the point of view of the companies that want to go into seabed mining, they would prefer to operate under a treaty, and with the rules established by an international body.

LEHRER: Mr. Ambassador, was this position -- the position that`s now in the treaty and the one you just outlined -- was this a result of the United States having to buckle under to the Third World?

Amb. RICHARDSON: No, I must say that that charge I find rather irritating. As you mentioned, I`ve been in Washington in many posts, and these negotiations have been by far the toughest that I have ever had any part in. We are dealing with, as you said, 158 countries in this conference, and we can`t tell them what to do. We can assess the interests of the United States in achieving a treaty, including the interests in navigation and protection of the marine environment and in fish as well as oil and gas and mining. But we have to make the best deal we can make, taking into account all the interests involved, including the interests of other countries. That means in turn, then, we have to make our case on the basis of what it takes to get investment in seabed mining: what kinds of security assurance and protection investors entering into a business with very large risks, very large amounts of money, are going to have to take. But I think we have achieved a fair deal, everything considered, and you could get -- if you had on this program today a representative of the Third World, he would tell you that the United States had done very well, and that he and the representatives of the other developing countries have been making concession after concession after concession to the United States and the other industrial countries from the very beginning of this conference.

LEHRER: Thank you. Robin?

MacNEIL: The leading congressional voice against the draft agreements is that of Louisiana Democrat John Breaux, a member of the House Merchant Marine and Fisheries Committee. In December, Congressman Breaux and a bipartisan group of congressmen urged President-elect Reagan to reassess the proposed treaty as he has now done. In testimony on March 5th, the Congressman called it "fundamentally unacceptable." Congressman, why were they headed towards a treaty or convention that would be fundamentally unacceptable?

Rep. JOHN BREAUX: Well, Robin, I think it`s fundamentally unacceptable because it`s not in the national security interest of the United States, nor in the financial and economic interests of the United States. I think one thing is important. I favor a treaty, but I favor a good treaty that is balanced and one that we can be comfortable with, and one that protects our basic security and economic interests.

MacNEIL: Well, let`s take those two separately. First, the security one. Why is it not in the U.S. security interests?

Rep. BREAUX: Well, if we talk about the deep-seabed mining interests, for instance, the manganese nodules that are on the floors of the deep ocean contain some very important minerals like cobalt and manganese and nickel. Well, cobalt is used to manufacture jet engines. Certainly, part of our national security. Nickel -- we can`t manufacture steel without nickel. Manganese is also very important. All three of those commodities we presently import over 70 percent, cobalt over 80 percent is imported from countries that are not dependable, stable supply.

MacNEIL: Yes. Well, why would the treaty which permits us to mine those from the sea bottom -- why would it interfere with that?

Rep. BREAUX: Well, that`s a key question because if in fact we had an assured access to those minerals under the terms of the treaty, I would feel much more comfortable. In fact, Henry Kissinger, when he set out sort of the ground rules as to how the United States was going to approach this convention, said one thing that is very fundamental. We cannot turn over the right of assured access to these minerals to an international authority that could in rum prevent us from actually having access and the right to go out and mine. Now, I think that one thing is fairly clear that we do not have assured access to these minerals under the terms of the treaty.

MacNEIL: You mean that this international body could tell the United States mining companies whether they could mine them or whether they couldn`t?

Rep. BREAUX: Well, that is partially correct because of the way the treaty sets up the type of group that`s going to rule on the applications for licenses to go out and explore the deep seabeds. We have a council that is set up composed of some 36 nations. Now, the Soviet bloc and the Soviet nations are guaranteed at least three seats on the council. The United States is not guaranteed any seat. We`re only guaranteed an opportunity to compete against our own Western industrialized countries for the right to sit on the council. Therefore, if you look at the makeup of that council which is going to vote on an application, we are not assured of access to the deep seabed minerals.

MacNEIL: Can we come back to the economic interest of this country? You say it is not served by the proposed convention.

Rep. BREAUX: Well, it`s not served in a number of ways, and the first we just talked about, in the sense that if we don`t have assured access to these minerals, it is not in our economic interest. But in addition to that, the treaty as it`s proposed at the present time sets production ceilings on how much of the minerals can be produced. You have restrictions that say you cannot produce as much as you are capable of producing. But an international authority is going to set production ceilings. In addition, it requires technology transfer; it requires a forced sale of technology from the industrialized countries of the world to be given to the authority to be divided up among other countries of the world. It`s not in the economic interests of the United States to require that we sell our technology when we have a technological edge on the world in this area. In addition to that, it requires some very heavy up-front taxes on the mining companies that will again be, in rum, given over to some of the developing countries of the world to help finance their operations. And that`s not enough. It also requires revenue sharing with other nations of the world, even nations that are groups of people that are not recognized as legitimate governments which could include national liberation organizations.

MacNEIL: What do you say to those who argue that the people who are really opposing this treaty, and have managed to influence the administration to reassess it, are the mining companies who want to go out and do the mining, and that they`re the ones behind the opposition? Do you regard yourself as speaking for them?

Rep. BREAUX: No, I don`t. They have a particular parochial interest and economic interest, there`s no question about it, and they oppose it. But they`re not. alone in their opposition. You have a large bipartisan group of members of Congress in the House and the Senate that have expressed their concerns; you have members of the national ocean industries that have expressed their concern against it; the Chamber of Commerce, the national U.S. Chamber, has expressed reservations; groups within the American Bar Association have cited their reservations against the treaty; and you have scholars that have argued both ways, some with strong reservations. So it`s not just the mining companies. It`s a lot of other groups and organizations.

MacNEIL: Do you believe that it`s in the best interest of this country at the moment to forget trying to get a treaty that this country regards as fair, and for the mining companies which have a lead in the technologies just to go out and mine what they can at the moment, and suffer whatever legal challenges there are?

Rep. BREAUX: Well, the last Congress, Robin, passed legislation which provided for an interim mechanism which would allow the U.S. mining companies to go out and begin mining activities while we wait for the treaty to be negotiated. I strongly support a treaty but a treaty that is fair. So I would think that the U.S. domestic legislation would govern while we complete a successful treaty, but I urged the Reagan administration to have the review and the continuing negotiations.

MacNEIL: Ambassador Richardson just said that these were some of the toughest negotiations he`s ever been in. and that only with slight improvements, this is probably the best deal that the United States can get. You don`t agree with that?

Rep. BREAUX: We need some major improvements. We need some major improve- ments on the items that we just discussed. But I think that we should not take the position that because it`s the best deal that we could get, the Senate should ratify it. We should go back and renegotiate. And if it takes several more years, I think that`s in the ultimate long-term interests of the United States. It is tough negotiations. It`s much more difficult than it was in 1958 when you had maybe 50 nations of the world trying to agree on a Geneva convention. It`s much more difficult. But just because it`s the best deal shouldn`t mean that we should go and blindly accept it at the present time.

MacNEIL: Well, thank you. Jim?

LEHRER`. Mr. Ambassador, what would be the harm in re-opening negotiations and going for another seven years, 10 years, or 12 years, or whatever it takes to get a better deal for the United States?

Amb. RICHARDSON: Well, I think the fundamental question here is whether it`s probable that we could get a better deal that way, on the one side, and the other problem is whether we might not jeopardize the gains that we have achieved in areas other than seabed mining. It needs to be emphasized that when the United States helped to initiate these negotiations, we started out with a paramount concern with the national security interest represented by the mobility of our air and naval forces. We were concerned with securing the right to exploit the oil and gas in our continental shelf out beyond 200 miles as far as the shelf extends. We were concerned with the protection and conservation of our fisheries resources, the protection of the marine environment, a firm structure for the conduct of marine scientific research, dispute-settlement mechanisms that could help to prevent conflict. We have gained all these things, and we cannot assume that they will stay nailed down --

LEHRER: If you open it up again.

Amb. RICHARDSON: Besides that, I think one particular point needs to be emphasized. Now, I don`t disagree with John Breaux and anyone else who emphasized the importance for the United States of access to strategic minerals. The question is what would get us that access. I do not believe, and I think that there are very few people today who believe that we can gain it through the legislation that the Congressman referred to. The --

LEHRER: But he says that the treaty does not guarantee assured access to the United States.

Amb. RICHARDSON: Well, I simply disagree with that. We have established very clear-cut criteria of technical and financial competence for a company to get a contract. Any company that satisfies these criteria will get it. The --

LEHRER: Let`s get the Congressman`s response on that. He says the access is there, sir.

Rep. BREAUX: Well, the problem is the access and the license application still has to be voted on. It still is a judgment. The question is whether you in fact meet these requirements. Now, I don`t mind having someone vote on whether we`re going to meet the requirements, but I would not like to be voted on by a stacked deck. The United States as one of the leading industrial nations of the world is not assured a seat on the council that`s going to vote.

LEHRER: Now, why is that, Mr. Ambassador? Why is it that the Soviet bloc has three, and we don`t have any on this council?

Amb. RICHARDSON: That`s because they were afraid they otherwise might not get any. The Western industrial countries will have nine seats, and in the two categories in which we have the greatest interest -- the category of deep seabed mining countries and major consumers and importers of these metals -- the groups eligible for those seats choose their own representatives, and they will certainly choose the United States for one or the other.

LEHRER: That`s not good enough, though. Congressman Breaux?

Rep. BREAUX: Well, if that`s such a certainty, it would have done no harm to list the United States as having an assured seat on the council. If we`re certain of it, why not just go ahead and spell it out, I think that would have been a far more preferable manner of handling it.

Amb. RICHARDSON: Well, the Soviet Union isn`t mentioned, either. The only difference between the United States and the Soviet Union is that the Soviet Union exercises, of course, very tight discipline over the Eastern bloc. If we can be confident of our friends in the Western bloc, we will have an equal degree of assurance.

LEHRER: What about the other point -- the economic point that the Congressman mentioned, Mr. Ambassador -- that the requirement that our technology be transferred. Here again, we`d be required to sell it, the taxes and the sharing of the proceeds, and all of that?

Amb. RICHARDSON: Well, one way to answer that is to recognize that we`re dealing here with the common property of the world. We have no greater relative share of it than other countries, except perhaps proportionately to population or something like that. But the deal we`re making is rather like the kind of deal that the International Nickel Company would make with Indonesia in seeking the right to mine for nickel in Indonesian territory. We`re seeking the right to mine in the territory of the world community. The kinds of concessions we have made are not as far-reaching as hard minerals companies commonly make when they negotiate a contract with a country that possesses an ore body.

LEHRER: Congressman?

Rep. BREAUX: Let`s try and compare it to something I think everyone is aware of. Let`s compare it to the right of a fishing vessel to go out on the high seas and fish and take the fish. Surely, no one would make a serious argument that that fishing operator would have to come back and share the revenues of the sale of that fish with other nations of the world, nor to help other nations of the world finance their fishing boat operations, nor to give them the technology on how to fish. The right to fish is a recognized right of international customary law, and the right to obtain the minerals of the deep seabed are the same. Now, what we are doing is agreeing to a treaty which goes much further than that, and says you have to do all of these other things before you have the right to go out and do something I think you can do already.

LEHRER: I see. Robin?

MacNEIL: Congressman, is part of your objection the philosophical one that this is enshrining the demands by the Third World for a so-called "new economic order?" In other words, the distribution of wealth from the industrial countries to the Third World?

Rep. BREAUX: Robin, we can only point to many instances where representatives of the developing nations have referred to their belief in the new international economic order, and their pledge that they are trying to bring these principles into play in the LOS treaty. And I think that is a very dangerous principle for the Western industrialized nations to give credibility to, and to sit back and not be very forceful in expressing our opposition to that principle. It`s not in keeping with die principles of this government.

MacNEIL: Are we giving credibility to that principle, Mr. Ambassador?

Amb. RICHARDSON: I think two things need to be made very clear. There is no recognized right to go out and get manganese nodules comparable to the right to go out and catch fish. The manganese nodules are lying on the bottom, and in order for a mining operation to be economically productive, you have to have the secure right to mine a particular territory that is good against the rest of the world. In the case of a school of tuna, for example, boats from any number of countries can fish for the same tuna in that school. But you can`t conduct a mining operation that way. And as far as the technology is concerned, I think it needs to be emphasized that this is transferred for the limited purpose of enabling there to be established a mining operation for the international entity on behalf of the rest of the world. It`s the only way, in effect, that they can get into the act.

MacNEIL: Can I ask you both -- we have only a minute left. Can I ask you both -- some people have talked of this treaty -- this potential convention -- as a model for future world agreement. So you, Congressman, have even referred to the moon. How significant is it? If we don`t get this one right, what are the consequences going to be? I`d like to get each of you to comment briefly.

Rep. BREAUX: Well, I think it`s very significant because I think this is the first time in an international forum where some of the principles that I and others have expressed concern have actually been reduced to a draft, written document. And I think that it`s very dangerous and it sets some precedents that are already working their way, if you will, into other international negotiations. I think it sets a very bad precedent. I think we have to, for once and all at this point, make very clear our position that we are opposed to the new international economic order and some of these ideas that are working their way into this treaty.

MacNEIL: Mr. Ambassador, do you think it sets precedents forward into the 21st century?

Amb. RICHARDSON: I think in a limited way it does. I think it sets one very valuable precedent which is that the world community -- even this number of nations -- can agree on a code of law which would contribute to the prevention of conflict, and which also provides for fair participation by everyone in what is basically a common resource.

MacNEIL: I`m afraid I have to cut you off there. That`s just the end of our time. Congressman, Mr. Ambassador, thank you both for joining us this evening. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That`s all for tonight. We will be back tomorrow night. I`m Robert MacNeil. Good night.