Eight years of work on the Law of the Sea, conducted in various United Nations bodies and three rounds of a United Nations Conference on the Law of the Sea, have produced a high probability of official failure. The complex, cumbersome, and inefficient decision system of the Law of the Sea Conference is largely to blame for this result. It was a major error to attempt to negotiate the entire Law of the Sea simultaneously. During the first two sessions, in 1974 and 1975, difficult decisions were postponed repeatedly, thus multiplying the problems in an already very difficult situation. The Group of 77 was effectively captured by coastal states, leading to a Revised Single Negotiating Text that fails to meet the interests of landlocked and geographically disadvantaged states as well as those of the most advanced maritime states on scientific research, and distant-water fishing states. A number of these states are unlikely to sign a convention in the near future; and even if some agreement is reached at a future session of the Law of the Sea Conference, the new regime will be difficult to apply universally in the way that the old one was. A variety of conflicts is likely to proliferate, and detailed regional or sub-regional negotiations will continue. No universal solution to Law of the Sea issues is likely to emerge.

The United Nations Conference on the Law of the Sea marks the threshold of a major transition in regimes governing the use of ocean fisheries. After 200 years of operation, the principle of the freedom of the seas for fishing is being abruptly dismantled and replaced by extended zones of national jurisdiction. The new acquisition of authority by coastal states will, in many situations, greatly facilitate the adoption of improved management techniques. But in most regions throughout the world, the authority over numerous stocks of fish will continue to be diffused among neighboring countries because of the migratory patterns of the stocks. Arrangements for the distribution of yields from these shared stocks, for the provision of information, the adoption of regulations, and enforcement will be extremely difficult to achieve and may become significant sources of conflict and waste for many years into the future.

Major LOS controversies over navigation concern access to the waters of archipelagoes, the scope of coastal authority over passage through the territorial sea and straits, and navigation through ocean areas adjacent to the territorial sea. Proposals at the LOS Conference pertaining to access to archipelagic waters focus on new rights for island nations and on safeguards for navigation interests. The specific issues at stake in the territorial sea and in straits concern innocent passage for warships, coastal authority to deny innocent passage, clarification of the concept of innocent passage, and the scope and content of a claimed special right of transit for straits. Beyond the territorial sea the most important navigation issues relate to the extent of coastal authority other than control of resources. Controls over vessel source pollution are at issue as well as the relationship of navigation to resource measures. Assessment of the various interests at stake and of the trends in consideration of proposed treaty arrangements on the above issues suggests that, in general, navigation uses of the ocean will not suffer unduly in the LOS treaty expected to emerge in 1977. However, proposals to create a new zone, called the economic zone, which would be subtracted from the high seas, pose a possible long-term threat to navigation interests.

Shipping is characterized by a high degree of mobility and flexibility based on free access to the world's oceans and multilateral participation in carriage of sea-borne trade. Recently, technological and institutional developments have tended to create conditions in which bilateral shipping agreements may become dominant. A major step in this direction was the 1974 UNCTAD Convention on a code of conduct for liner conferences. Efforts to protect the marine environment from ship-originated oil pollution may work in the same direction depending on how they are implemented. Under any circumstances, implementation of pollution control standards under the 1973 IMCO convention will be costly and freight rates arc certain to rise. Unless international pollution control standards are rigidly fixed and binding, discriminatory treatment and bilateral agreements are likely. But such standards would be futile unless there is also freedom of innocent passage–a matter for the Law of the Sea Conference.

Regulation of the exploitation of seabed minerals has to be considered in terms both of the technical nature of the operations and of the requirements of the supervisory body. The major issue, however, has been “Who May Exploit the Area?”. Different approaches to this question have been taken by the leading industrialized powers and by the Group of 77. Particular difficulties have arisen over: 1) the extent of the discretion to be exercised by the International Seabed Authority and the security of access of individual operators; 2) the way in which the Authority might itself engage in direct operations through an “Enterprise”; 3) the protection to be given to land-based producers against adverse consequences of seabed exploitation; and 4), the decision-making procedures of the Authority. Future events are hard to predict; but failure to produce a generally acceptable treaty could lead to significant conflict over the international seabed in the years ahead.

The negotiations concerning the establishment of an International Seabed Resources Agency (ISRA) raise three research questions: 1) what is the current state of the ISRA negotiations, and how have they evolved; 2) what effect do New International Economic Order (NIEO) considerations have on national behavior in these negotiations; and 3) can the ISRA negotiations “succeed” (reach a positive-sum-type outcome) and produce a comprehensive Law of the Sea treaty? A methodology based on thematic content analysis is useful in answering these questions. Despite recent concessions by developed states, continued stalemate in the negotiations is likely. The Group of 77's position has hardened as it has become increasingly united behind demands for a New International Economic Order for the seabeds. Short of a breakthrough on ISRA, neither the ISRA negotiations nor the Law of the Sea Conference can succeed. Such a breakthrough might be generated either by verbal acceptance of the NIEO by the North, or by side payments.