Canada and the International Seabed: Domestic Determinants and External Constraints 9780773561960

Citation preview

Canada and the International Seabed

This page intentionally left blank

Canada and the International

Seabed Domestic Determinants and External Constraints ELIZABETH

RIDDELL-DIXON

McGill-Queen's University Press Kingston, Montreal, London

McGill-Queen's University Press 1989 ISBN 0-7735-0694-2 Legal deposit second quarter 1989 Bibliotheque nationale du Quebec

oo Printed in Canada on acid-free paper This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada.

Canadian Cataloguing in Publication Data Riddell-Dixon, Elizabeth, 1954Canada and the international seabed Includes index. Bibliography: p. ISBN 0-7735-0694-2 i. Ocean bottom (Maritime law). 2. Ocean mining - Law and legislation - Canada. 3. Maritime Law - Canada. 4. International and municipal law. 5. Territorial waters - Canada. I. Title. JX4426.R54 1989 341.4'48

c88-090452-6

To my Mother and Father Gretta Riddell Dixon and Alan Bogle Dixon

This page intentionally left blank

Contents

Figures and Tables ix Preface xi 1 Introduction 3 2 Canada's Interests

19

3 Canada's Policies on Deep Seabed Mining at UNCLOS III 29 4 Federal Government Actors 57 5 Provincial and Municipal Governments 96 6 Nongovernmental Actors

106

7 The Canadian Delegation 132 8 The Policy-Making Process 152 Glossary Notes

183

185

Bibliography 199 Index

2i5

This page intentionally left blank

Figures and Tables

FIGURES

1 Manganese Nodules

6

2 Manganese Nodule Sites 7 3 Profile of the Seabed 9 4 Formulating Canada's Policies on Deep Seabed Mining: The Formal Process 60 TABLES

1 Canada's Broad Objectives at UNCLOS III 27 2 Canada's Specific Bargaining Aims at UNCLOS in 28 3 Sessions of UNCLOS m: An Overview 31

This page intentionally left blank

Prefacee

The Third Conference on the Law of the Sea was the longest, most comprehensive conference ever held under the auspices of the United Nations. Of all the issues negotiated, the most controversial pertained to deep seabed mining. The positions of the developed and developing countries at this assembly were diametrically opposed, thereby presenting its participants with a serious challenge. My interest was caught by the significant progress made towards meeting this challenge during the early years of the Conference. But, once engrossed in the negotiations, I soon became curious as to why Canada was treading such a unique path - at times siding with its traditional allies, at other times with the developing countries. My inquiry broadened therefore - from one focused on the dynamics of the Conference itself to one concentrated on the inner workings of the Canadian foreign policy-making process. In so doing, I had first to identify key governmental and nongovernmental actors and then to examine their preferences and strategies. My main objective was to explain why, despite vocal opposition within government circles and from business groups, the negotiation of a comprehensive law of the sea treaty coupled with the safeguarding of Canada's land-based nickel industry from subsidized competition from the deep seabed was given top priority. In researching and writing this book, I have become indebted to a great many people, without whose assistance, encouragement, and helpful guidance, this project would never have come to fruition. McGill-Queen's University Press provided expert help and friendly support in the production of the book. Special thanks go to Joan McGilvray, coordinating editor, and to Wendy Dayton, whose patient and thorough editing greatly enhanced the text. Thanks are also due to the Department of External Affairs for granting me access to valuable classified files. I am particularly grateful to Don Page

xii

Preface

and Dacre Cole of the Department's former Historical Division; their assistance throughout my exhaustive examination of reams of microfiches and endless boxes of files was untiring. Interviews with federal and provincial civil servants, representatives of business and labour, and foreign diplomats were the source of much of my research. I am most grateful to these individuals for giving so generously of their time, and for sharing their insights and perspectives. Their help was invaluable and their names appear in the bibliography. I also wish to thank Peter Hajnal at the Robarts Library and Donna Burton at the Ontario Legislative Library, for their help in locating government documents and other useful reference information. Mention should also be made of Gayle Fraser and Jane Barrett at the Canadian Institute of International Affairs, for their support and assistance throughout the project. I would also like to commend the industry and excellent typing skills of Denise Kusan, who keyboarded the entire manuscript. I am grateful to the International Journal and Canadian Journal of Political Science for allowing me to include excerpts of my articles that had been published previously. Likewise, thanks are due to David Pasho for providing the photograph of manganese nodules and to the Canadian Institute of Mining and Metallurgy for the diagrams of the ocean floor and seabed mineral concentrations. The encouragement, scholarly guidance and insightful criticism of John Holmes and Bob Matthews were also indispensible, particularly during the early drafts of the manuscript. Throughout the latter stages of the project, I benefited greatly from Allan McDougall's support and editorial comments. I wish to express appreciation to my uncle and aunt, Gordon and Jessica Riddell, for their generous hospitality during my many research trips to Ottawa. Finally, I would like to give special thanks to my mother who stood behind me throughout the endeavour.

Canada and the International Seabed

This page intentionally left blank

CHAPTER ONE

Introduction

On the eve of the opening session of the United Nations' Third Conference on the Law of the Sea (UNCLOIII), Mitchell Sharp, Canada's Secretary of State for External Affairs, declared it to be "the most important diplomatic conference ever held under the auspices of the UN."1 Although his statement certainly reflected the importance Canada accorded the Conference, it was not a perception peculiar to Canada. Over 150 states subsequently devoted nine years to the complex negotiations of UNCLOS III. By its conclusion, significant increases in coastal state jurisdiction had been accepted and a unique regime governing the exploitation of the resources of the deep seabed had been developed. Of all the issues negotiated at UNCLOS III, the most controversial pertained to deep seabed mining. Here the positions of the Western industrialized states and those of the developing countries tended to be diametrically opposed. The former wanted private companies to mine the deep seabed under a free enterprise system. This proposal, however, was vehemently opposed by the developing countries, on the grounds that it would preclude their active participation. They advocated, instead, that the development take place under the auspices of an international body, thereby ensuring that the less developed countries would be able to participate fully in the mining of the deep seabed and benefit from the exploitation of its resources. Canada's position in the deep seabed mining negotiations was unique. As a country, it shared some of the interests of both the Western industrialized states and the developing countries. Canada had corporations with the financial resources and technological expertise to proceed with deep seabed mining, much like several of the developed countries, such as the United States and Japan. But much like several of the developing countries, including Zaire, Zimbabwe, and Indonesia, Canada wanted to ensure that international markets for minerals from land-based mines were not threatened by subsidized or otherwise unfair competition from deep seabed

4 Canada and the International Seabed

mining operations. The significance of these concerns guaranteed the country's strong interest and involvement in the deep seabed mining negotiations. But at the same time, domestic coalitions were competing within Canada, each trying to ensure that their particular goals were accorded top priority and hence would be translated into policy. This study explores the development of Canada's policies on deep seabed mining, from the inaugural session of UNCLOS III in December 1973 through to April 1982, when the Conference voted to accept the Law of the Sea Convention. Its main objective is to explain why certain interests - notably the negotiation of a universally acceptable treaty on the law of the sea and the safeguarding of Canada's land-based nickel industry - were given priority over other interests. By and large, the explanation is that these particular priorities reflected the preferences of the lawyers in the Department of External Affairs. While working within the limits of ministerial consent, these lawyers dominated the process of formulating Canada's policies on deep seabed mining. The support of officers from the Department of Energy, Mines and Resources further strengthened their position. Civil servants from the federal Departments of Finance and Industry, Trade and Commerce, as well as from the Ministry of State for Science and Technology, were also involved with the deep seabed mining issues. Their priorities, however, differed from those cited above. They advocated protecting Canada's technology from mandatory transfers and ensuring that Canada was not obliged to help finance deep seabed mining operations that would compete with Canadian land-based mines. But these concerns were never among Canada's highest priorities at UNCLOSIII.One wonders why this was so. This book attempts to examine the process by which Canada's priorities were formulated. After identifying the key participants and their respective objectives, it assesses the relative bargaining strengths of each in the policy-making process. The international constraints that influenced the government decision makers, particularly those at UNCLOS III, are examined as well. But besides presenting an in-depth case study, this volume also looks at several current debates central to Canadian foreign policy. In chapter 8, for instance, the case study findings are related to five major issues: the relative importance of domestic determinants and international constraints; the nature of intragovernmental decision making; the relationship between government decision makers and interest group representatives; the role of provincial governments in foreign policy; and the utility of holding international conferences to solve global problems. The UNCLOS III began its first session in December 1973, with a mandate to negotiate a comprehensive treaty covering a wide range of issues con-

5 Introduction

eerning the law of the sea. These included regulations pertaining to territorial seas, exclusive economic zones, navigational rights, international straits, fishing, deep seabed mining, pollution controls, marine scientific research, and dispute settlement. After over eight years of complex negotiations, Conference participants voted in favour of accepting a comprehensive law of the sea treaty. Given the number and diversity of the states involved, as well as the range of the issues covered by this treaty, that approval was in itself a notable accomplishment. This success was undermined, however, by four countries, including the United States, that voted against the treaty. Seventeen others, including the Soviet Union, the United Kingdom, and the Federal Republic of Germany, abstained. The United States, and several other Western industrialized countries refused to accept the treaty because they felt its provisions for the international seabed regime discriminated against private enterprises, and gave too much discretionary power to the International Seabed Authority.2 In light of the final outcome, it is somewhat ironic that the first impetus for UNCLOS III was the international community's desire to establish a regime to govern resource development of the international seabed area. During the latter half of the 19605, the international community became increasingly aware of the economic, political, and ideological importance of deep seabed resources. On 17 August 1967, this awareness was heightened by Maltese Ambassador Arvid Pardo's declaration, before the United Nations' General Assembly, that the oceans and the resources therein were the "common heritage of mankind.''3 Largely as a result of Pardo's declaration, the matter became a key subject for discussion in the United Nations' Seabed Committee and, subsequently, at UNCLOS III Manganese nodules, although not the sole resource on the deep seabed, attracted the greatest attention during these negotiations. Discussion revolved around the need to establish a regime to govern mining in the area. Manganese nodules are polymetallic concretions, about the size of potatoes, that lie on the ocean floor (see figure i). Although the ratios of their mineral composition vary, they are, on average, 25 percent manganese, 1.5 percent nickel, i percent copper, and .25 percent cobalt.4 Whereas manganese is necessary for the production of steel, the non-corrosive properties of nickel are important in the manufacturing of stainless steel. Copper, on the other hand, is used extensively in the electrical industry, while cobalt is used in the manufacture of engines for jet airplanes. The greatest economic incentive to develop manganese nodules stems from their nickel and copper content. In addition, cobalt has a strategic importance for several countries, including the United States which imports it from foreign sources. The nodules are found most often in seas of between 3,000 and 5,000 metres.5 Although these resources are found in the Atlantic, Pacific, and Indian

6 Canada and the International Seabed

Figure 1 Manganese Nodules. (Courtesy David Pasho, Department of Energy, Mines and Resources, Ottawa.)

Oceans, the richest deposits are on the ocean floor between Hawaii and Mexico.6 (See figure 2.) Manganese nodules were first recovered from the ocean floor by the HMS Challenger in 1872. It was not until the latter 19605, however, that it became feasible to develop the technology necessary to recover and refine minerals from this source on a commercial basis. All states were eager to benefit from and participate in deep seabed mining because of three related factors: the expectation of dwindling land resources (an element emphasized in the "oil crisis" of 1973) rising standards of living, and the increasing world populations. That last factor only intensified the pressure exerted by the other two. But hopes for quickly netting vast riches from the deep seabeds were soon dashed. The rapid rise in world prices for oil in the 1970s significantly increased the cost of refining manganese nodules, and enthusiasm for mining the deep seabed was further dampened when, in the mid- and late 19708, depression struck the international market for nickel. Heightened costs and decreased demand combined to make the metals in manganese nodules less attractive to produce. Projected dates for beginning production were therefore pushed ahead, from the original estimate of the mid-1970s to after the year 2000. But despite this lengthening of lead time, deep seabed mining continued to be viewed as economically important,

7 Introduction

Figure 2 Manganese Nodule Sites. The nodule belt currently of greatest interest lies in a region located south of Hawaii and west of Mexico, bordered by the Clarion and Clipperton fracture zones. The horizontal shading identifies other areas of high nodule concentration. (Jean-Paul Drolet, "Deep Seabed Mining - A Canadian Perspective in Relation to the Nickel Industry," CIM Bulletin 72, no. 801 [Jan. 1979]: 118. Reprinted by permission of the Canadian Institute of Mining and Metallurgy, Montreal.)

although expectations of rapid returns on investments had given way to hopes of long-term benefits. Toward the latter part of the 1970s, a second source of minerals polymetallic sulphides - became widely recognized. These deposits, found primarily in the rift zones of the Pacific Ocean, were potential sources of, among other metals, copper, zinc, iron, manganese, and aluminum. As a result, these deposits were of interest to potential seabed miners. At UNCLOS in, however, they never became as important an issue as the manganese nodules, largely because the technology to extract them from below the ocean floor had not yet been developed. The fact that all states viewed manganese nodules as significant in economic terms helped to make control of the seabed a political issue.7 Debates at UNCLOS m over how to develop the resources of the deep seabed, and how to benefit from and participate in this development, were heated and lengthy. Seabed mining also became an ideological issue. Both developing and developed countries viewed the questions pertaining to deep seabed mining as precedent-setting. During its early years, UNCLOS ra was seen as a model

8 Canada and the International Seabed

for the conference diplomacy required to deal with other areas of international relations, including the establishment of a regime for Antarctica. But the stalemate that eventually emerged at UNCLOS m discouraged further emulation.8 The potential for precedent-setting went beyond conference structures and procedures however, extending into the substantive provisions negotiated at the Conference. These could subsequently be cited as precedents for the argument of positions in other fora. As shown in chapters 4 and 6, this concern was particularly evident with regard to the articles on the transfer of technology from developed to developing countries. The UNCLOS m was structured to facilitate flexibility and enhance the chances of reaching agreement. Given the number and diversity of the issues to be discussed, three main negotiating committees were established. Committee One, reflecting the importance accorded the deep seabed mining issue by the international community, dealt with the establishment of a regime to manage exploitation of the deep seabed and its resources. It is Canada's policies in this committee that constitute the focus of our enquiry. Committee Two examined a wide range of traditional law of the sea issues, including those pertaining to the territorial sea, continental shelf, fishing, and archipelagos and navigational rights. Committee Three negotiated issues dealing with the transfer of marine technology. Plenary sessions considered general conference procedures, reports of the negotiating committees, and provisions for dispute settlement, as well as issues related to the preparatory commission, a body that would be undertaking the task of translating the treaty provisions into law, once the Law of the Sea Convention was approved. In addition to the plenary sessions and the formal negotiating committees, informal working groups met to discuss specific issues or sets of issues. Some of these groups, such as the Working Group of 21, were formally established by the Conference as the need arose. Other groups, such as the Coastal States Group, sprang up as states perceived the need to cooperate. Some groups, the Group of 77 being but one example, already existed outside the Conference context, while others, such as the Land-based Producers' Group, developed within the UNCLOS m setting. In order to expedite negotiations, frequent informal meetings were held between the formal UNCLOS m sessions. Discussions in Committee One were further expedited by the use of precise terms to refer to key concepts. For example, the explorations for and the exploitation of deep seabed resources were formally referred to in UNCLOS m negotiating texts as activities.9 The deep seabed, otherwise referred to as the Area, was "the sea-bed and ocean floor and sub-soil thereof beyond the limits of national jurisdiction."10 (The delineation of the deep seabed area, as opposed to the area within coastal state jurisdiction, is depicted in figure 3.) Discussion in Committee One focused on the following questions: who would develop the resources of the deep seabed?

9

Introduction

Figure 3 Profile of the Seabed. (Adapted from Jean-Paul Drolet, "Deep Seabed Mining - A Canadian Perspective in Relation to the Nickel Industry", CIM Bulletin 72, no. 801 [January 1979]: 116, with the permission of the Canadian Institute of Mining and Metallurgy, Montreal.)

Who would benefit from such development? And what would be the nature of the regulatory body, that is, of the International Seabed Authority (ISA)? The principal alignments in Committee One tended to follow NorthSouth divisions, although neither group was monolithic. For the Group of 77, which represented over 100 less developed countries, and for the developed states whose views were most prominently enunciated by the United States, the deep seabed was important for ideological as well as political and economic reasons. Because definitions of the common heritage of mankind and of the various ways of translating that into practice differed widely, negotiations in Committee One proved to be very contentious. The Group of 77 viewed the establishment of a regime that would enable the developing countries to participate directly in - and hence to benefit financially and technologically from-the exploitation of manganese nodules was critical to the realization of their major goal: the creation of a new international economic order. They blamed the existing order for perpetuating inequalities and demanded fundamental changes in the global economic system so as to facilitate a fairer sharing of the world's wealth. In effect, they believed that the oceans could be developed on an equitable basis, thus decreasing the widening gap between rich and poor states. The Group of 77's principal objective in Committee One, then, was to ensure that developing states would not only benefit economically from seabed mining, but would also participate directly in all phases of the deep seabed's exploration and exploitation. But the Group of 77 also supported the

io Canada and the International Seabed interests of the land-based producing countries (most of which were developing states), whose economies could have been adversely affected by unregulated exploitation of the Area. They nevertheless seldom placed the well-being of the land-based producers above the interests of the developing countries. In order to ensure, first, that developing states were able to participate in and benefit from the mining of the deep seabed and, second, that the development of the resources was conducted in an orderly and regulated fashion, the Group of 77*5 1974 position paper11 advocated that the ISA be given the monopoly to control and conduct all activities in the Area. In contrast, the Western industrialized states sought to ensure access to the resources of the deep seabed for private entities as well as to safeguard a system of international law that would protect free enterprise and the freedom of the high seas. Since these states tended to be the major consumers of the minerals contained in the manganese nodules, they were eager to have their nationals mine the deep seabed. Their goal, then, was to ensure secure sources of supply for their industries. As a result of these interests, the United States' 1974 proposal12 recommended the establishment of an ISA that would function as a licensing body. The goal was to provide a system that would ensure an orderly registration of claims, while guaranteeing that private companies would be given access to the resources of the Area, under a free enterprise system. The positions of the Communist countries of Eastern Europe, especially the USSR, tended to be closer to those of the Western industrialized states than to those of the Group of 77. These Communist countries believed it was doctrinally unacceptable to have a supranational, noncommunist body exercising authority over their political and economic affairs. Unlike the Western industrialized countries, however, the access to the resources of the Area which the Eastern bloc sought was for states rather than private entities. As the Conference progressed, both groupings of states modified their original positions. The concept of a parallel system, in which companies and state entities wishing to begin deep seabed mining would submit two sites of equal value to the ISA, was accepted. The Enterprise (the operating arm of the ISA), was to exploit one site while the applicant would mine the other. As a result, the Enterprise, as well as states which ratified the law of the sea treaty and their nationals, could all participate. Although the developed and developing countries held differing views on many of the issues under discussion in Committee One, it would be simplistic to view the negotiations purely in terms of North-South divisions. There was no unanimity of objectives in either the developed or the developing country categories. For one thing, within the Group of 77 and among the industrialized countries, the priorities, tactics, and general orientations of the various governments differed significantly. In addition, the question

11 Introduction

of establishing controls to regulate production from the Area transcended any North-South divisions. In effect, the principal division on this issue, lay between the countries that imported the minerals contained in the manganese nodules and those that had land-based mines producing these minerals for export. For example, among the industrialized states, the positions of the United States, United Kingdom, West Germany, and Japan differed from those of Canada, with its concern for its land-based mining industry. Within the Group of 77, the land-based producers, which were worried about the possible effect of unregulated seabed mining, sought the continued support of the Group to protect their interests. Most members of the Group of 77, however, were consuming countries, eager to secure inexpensive resources to aid in their development. They wished to participate in deep seabed mining as soon as possible. Furthermore, these were conflicts of opinions among, as well as between, both the developing and the industrialized states. As will be seen in chapter 3, the extent to which these positions differed, and the precise nature of the alignments at any one time, varied with the issue at stake. In addition to the political alignments in Committee One", the decisionmaking procedures of the Conference had important implications for the negotiations themselves. Up until 30 April 1982, when the Law of the Sea Convention was put to the vote, agreement at UNCLOS m was based on consensus. This meant that issues had to be debated until there were no protests. Given the fact that the developing countries far outnumbered the industrialized states, consensus was the only method of decision making acceptable to the latter. Although this procedure was necessary, it meant that reaching a consensus on each of the provisions in the law of the sea texts greatly prolonged the negotiating sessions. And it was the poor countries which were most affected by the length of the Conference. The costs involved in sending and supporting a skilled team of delegates over an extended period were horrendous. As exemplified by the intense debates regarding overfishing off both the east and west coasts, the Manhattan voyage through the Northwest Passage, and the passing of the Arctic Waters Pollution Prevention Act, the law of the sea issues were, and continue to be, of great importance to the Canadian government as well as to the people of Canada. It was therefore not surprising that, from the inception of UNCLOS m, Canada was an active participant. Canadian representatives presented position papers, chaired various groups and committees, and proposed compromise solutions to such contentious problems as how best to regulate activities in the Area. Throughout the Conference, Canadian interests were well represented by a large delegation with expertise on a wide range of law of the sea matters. Indeed, at the first substantive meeting of UNCLOS m in 1974, Canada sent more delegates than the USSR and almost twice as many as the principal

12 Canada and the International Seabed

maritime powers of Western Europe. In fact, only two countries sent more representatives than Canada. Furthermore, the Canadian delegation, particularly during the early years of the Conference, included several cabinet ministers. It was clear that the Canadian government attached considerable importance to the UNCLOS in negotiations. Canada was very much involved in the negotiations pertaining to deep seabed mining prior to and throughout UNCLOS m. In Committee One, Canada had two major objectives. One was to reconcile the conflicting views of the developed and developing countries. Bridging this gap was a prerequisite for obtaining a universally acceptable treaty on the law of the sea, which, in turn, was necessary to secure the gains that Canada had made on other issues at the Conference, particularly in terms of expanded coastal state jurisdiction. Canada's other major objective in Committee One was to ensure that nickel production from the deep seabed would not cause disruptions in world markets for Canadian nickel. As the world's largest exporter of nickel,13 Canada had no doubts about the economic viability of its industry under free market conditions. Its main concern, therefore, was to ensure that production policies included in the law of the sea text would safeguard land-based producers from the impact of subsidization and other "unfair" market practices employed by the deep seabed mining states. The priority given to negotiating a universally acceptable law of the sea treaty and to safeguarding its land-based nickel industry did not mean an absence of other domestic Canadian interests. On the contrary, the deep seabed negotiations also had implications for various Canadian firms. For instance, two Canadian companies, Inco Limited and Noranda Mines Limited, were engaged in deep seabed mining research. The provisions that emerged from UNCLOS m would determine the conditions under which these companies could explore and exploit the resources of the deep seabed. Moreover, the articles governing technology transfers affected the Canadian owners of technology* both in terms of requirements and, more especially, in terms of the precedents established for such transfers. In addition to the concerns of the Canadian mining companies, the deep seabed mining negotiations had implications for the country as a whole. As a developed state, Canada would be required to contribute financially to the ISA and its operating arm, the Enterprise. This policy involved financial costs for Canada. Furthermore, it amounted to a subsidization of mineral production, inasmuch as the Enterprise would then be competing for world markets with Canada's land-based nickel producers as well as with the Canadian companies' deep seabed mining operations. Given the divergence of Canada's domestic interests, it is not surprising that two distinct coalitions competed to affect policy outcomes.14 The

13 Introduction

strongest alliance was that of the lawyers of the Department of External Affairs (DBA) and the officers of the Department of Energy, Mines and Resources (DEMR). The DEA lawyers sought to secure a universally acceptable treaty that would protect the significant gains that the Canadian delegation, under their leadership, had attained at UNCLOS ra. The second objective of this alliance was decided in response to an American initiative. It was the us, not Canada, that first advocated placing quantitative restrictions on the production of nickel from the deep seabed, ostensibly to protect land-based producers. In reality, the American formula limited future demands for Canadian land-based nickel. From that point onward, the DEA lawyers worked to improve the formula so that it would ensure access to world nickel markets for Canadian production from land-based mines. Officers from the DEMR contributed support and technical expertise to achieve this objective. Active support also came from the governments of the two provinces in which nickel is mined, Ontario and Manitoba, as well as from the municipal governments and labour unions that represent Canadian nickel miners. The second Canadian coalition was composed of officers from the Department of Finance (DOF), the Department of Industry, Trade and Commerce (DITC) and the Ministry of State for Science and Technology (MOSST). Members of this coalition objected to quantitative restrictions in principle. More importantly, they contended that the quest for quantitative restrictions was diverting attention from Canada's most critical interests: the protection of the country's technological and financial resources. To maintain the support of the developing countries, which were Canada's main allies vis-a-vis a production ceiling, Canada could not afford to oppose the developing countries' cherished goals of ensuring technology transfers and the financing of the ISA by developed states. This position of the officers from the DOF, DITC and MOSST was supported by the Mining Association of Canada (MAC) and the Canadian Business and Industry International Advisory Committee (CBIIAC). Notwithstanding the efforts of this second coalition, Canada's policies on deep seabed mining awarded top priority to the negotiation of an internationally acceptable treaty and the safeguarding of Canada's land-based nickel industry. This choice reflected the influence of the first coalition, particularly the DEA lawyers, in the policy-making process. The most important factor in securing this ascendency was the ability of the DBA-led coalition to secure and retain the support of the only three ministers who were actively involved in the deep seabed mining issues: the secretary of state for external affairs, the minister of energy, mines and resources, and the minister of state for mines. Policies were worked out within the public service. Nevertheless, it was the coalition's success in keeping the few, interested

14 Canada and the International Seabed cabinet ministers informed and favourably disposed to its position that bolstered the bargaining clout of the DBA lawyers and DEMR officers in the interdepartmental negotiations. From an administrative point of view, the DBA was responsible for coordinating Canada's policies at UNCLOS m and the DEMR had jurisdiction over matters pertaining to mining. It was therefore only logical for these two departments to assume the lead role on the deep seabed mining issues. The fact that the Interdepartmental Committee on the Law of the Sea, the body responsible for formulating policy recommendations for cabinet, was chaired by the DEA lawyers, and that these same lawyers also established agendas for committee meetings, and circulated pertinent information to its members, only reinforced their role. The working head of the Canadian delegation was, moreover, a DEA lawyer, while Canada's senior representative in the deep seabed mining negotiations was with the DEMR. Timing was an important factor as well. By the time the DOF, DITC, and MOSST realized that the deep seabed mining issues were relevant to their interests, the direction of Canada's policies had been firmly established. The specifics of the case are brought to light in the remainder of this book, beginning in chapter 2, where Canada's interests in the deep seabed mining negotiations are assessed. To help establish the boundaries within which the seabed mining policies were drafted, some attention is also given in this chapter to Canada's goals in Committees Two and Three. These two bodies influenced the bargaining resources accorded the deep seabed mining issues. Chapter 3 examines Canada's evolving policies on the deep seabed mining issues at UNCLOS m, as expressed in official statements and position papers. The policies are assessed in terms of what they proposed, the manner in which they evolved as the Conference progressed, and the nature of the interests they reflected. While the discussion focuses on deep seabed mining, it also considers, where relevant, Canada's goals and competing interests in other areas of the law of the sea negotiations. Behind the paper consensus reflected in the official statements lay considerable diversity. For example, neither the Canadian governmental actors in Ottawa nor the Canadian delegates to the Conference shared identical views on what Canada's goals should be, let alone on how these goals could best be pursued. Chapter 4 accordingly identifies the representatives of the federal government involved in the policy-making process on these issues, at both the political and bureaucratic levels. The discussion includes their respective interests, bargaining positions, and choice of tactics. The extent to which the tactics and concerns of the various federal departments conflicted, and the means by which such conflicts were reconciled, are also examined. The diversity seen within government circles extended into the domestic fabric of Canadian society as well. Chapter 5 therefore examines the in-

15 Introduction terests, strategies, and influence of provincial and municipal governments in the deep seabed mining issues. Chapter 6 moves outside government circles to consider the involvement of nongovernmental organizations, including several Canadian mining companies and business organizations, as well as the labour unions that represented Canadian nickel miners. Consideration is given to their respective interests, their perceptions of the issues, and the means by which they sought to achieve their policy goals. The role of the Canadian delegation to UNCLOS m is examined in chapter 7. Although it was headed by and composed primarily of representatives from the federal government, this delegation also included officials of provincial governments and interest groups. Not all of the federal departments and domestic interests involved in the policy-making process in Canada were represented at UNCLOS in. There was, nevertheless, considerable diversity in the priorities and perspectives of various members of the Canadian delegation. The major difference between the policy-making process in Ottawa and that the Conference itself was that those players who attached the greatest importance to protecting Canadian technology from mandatory transfers, and to ensuring that deep seabed mining took place under a free enterprise system, were not as well represented at UNCLOS in as in Ottawa. As a result, the bargaining position of the DBA lawyers and their allies in the DEMR was enhanced. Chapter 8 answers the question raised at the beginning of the book: why did Canada give priority to negotiating a universally acceptable treaty and safeguarding its land-based nickel industry rather than to protecting its financial and technological resources? The chapter draws together the findings of previous chapters and compares the range of interests within the policy-making process in Ottawa with that at UNCLOS in. The diverse positions and bargaining strengths of the various governmental and nongovernmental participants are assessed as well. Generalizations about the policy-making process cannot be drawn from one case alone. But by relating the findings of this case to those presented in other literature in the field, this study should contribute several insights to the ongoing debates on Canadian foreign policy. For example, of the five issues examined in chapter 8, two have assumed particularly prominent notes in current debates. The governmental politics approach for one, is now widely acclaimed, although there are relatively few in-depth Canadian studies to which it has been applied.15 The governmental politics approach sees policy making as a bargaining process that takes place among government decision makers with diverse interests to promote; those with the best bargaining resources determine policy outcome. The case of Canada's policies on deep seabed mining issues involved a broad range of government decision makers from five departments, each with their own preferences as

16 Canada and the International Seabed

to public policy. This case study should therefore provide a good opportunity to assess the relevance of the governmental politics approach. While the findings presented in chapter 8 may differ in some respects from those of other applications of the governmental politics approach to Canadian foreign policy, they nevertheless do demonstrate the overall utility of the approach for explaining Canada's policies on deep seabed mining. The second, and related, major issue of current concern is the relative importance of the state and society in Canadian foreign policy. Once again this case offers a vehicle for testing propositions raised by others in the field. For example, it supports the arguments put forward by proponents of the statist approach, such as Kim Nossal,16 who say that governmental actors are able to translate their preferences into public policies with a fair degree of autonomy from society, even when there is serious opposition from major interest groups. This view is not shared, however, by proponents of the dominant class approach, including Cranford Pratt,17 who contend that the policy-making process functions in the overall interests of the capitalowning class. In addition to relating our findings to these two issues, chapter 8 also considers the relative importance of international constraints and domestic determinants, the role of provincial governments in foreign policy making, and the merit of devoting nine years to UNCLOS m. All these issues must be addressed if we are to understand Canada's choice of policies on deep seabed mining. The very process of addressing them, and relating them to other recent studies, should contribute to our understanding of Canadian foreign policy. Research for the book is drawn from primary and secondary sources. The first of the three categories of primary sources consisted of United Nations documents and statements, as well as speeches and policy papers prepared by representatives of the Canadian federal and provincial governments, interest groups concerned with law of the sea issues, and other states that had significant interaction with Canada over the seabed mining issues. These sources provided information on the progress of the law of the sea talks, especially with regard to Committee One negotiations, and on the positions taken by other countries, which, in turn, influenced the direction of Canada's policies. Such information helped to bring Canada's policies into perspective, relative to other developments at UNCLOS m. The study of speeches, statements, and position papers by representatives of the Canadian government, both in Ottawa and at the Conference, also provided information as to the actual formal policies, how they evolved, the publicly stated reasons for their adoption, and the key participants. The second primary source of research data was classified, Canadian government, information, held primarily by the Department of External Affairs.18 In keeping with the normal procedures of releasing confidential

17

Introduction

material to academics, all cabinet documents were removed before the files were released for examination. Cabinet documents included briefs from civil servants to cabinet, as well as information about the decision-making process within cabinet. The removal of such material from the files made it harder to identify whose interests were reflected in the memoranda sent to cabinet, as well as the extent to which dissenting opinions were included. Likewise, written records of the cabinet's interest in deep seabed mining and the priority which various ministers allocated to certain issues relative to other policy considerations were not available. The absence of cabinet documents meant that interviews had to serve as the main source of information on the role of cabinet in the formulation of Canada's policies. As a prerequisite for gaining access to the files, the author had to agree not to cite or quote directly from the classified materials. Where possible, therefore, efforts were made to find alternative sources. This was not, however, always possible. As a result, some of the information contained in the book has not been substantiated with footnotes. Interviews constituted the third type of primary research. Thirty key participants in the formulation of Canada's policies on the deep seabed mining issues agreed to be interviewed. These individuals included members of the Canadian government active in this area, both in Ottawa and at UNCLOS III, a senior civil servant in the Ontario government, and representatives from Canadian mining companies, business organizations, and the labour union representing the interests of Canadian nickel miners. The interviews were conducted in Ottawa, Toronto, and New York. Thanks to the assistance of the Canadian delegation, interviews were held with delegates from four countries: the United States, the United Kingdom, Chile and Zambia. These interviews took place in New York in April 1981, during the Tenth Session of UNCLOS III. During these interviews, the delegates offered their individual perceptions of the priorities and policies of Canada as well as of their respective countries. The interviews were useful in providing a broader view of the negotiations, particularly with regard to how other countries perceived Canada's evolving positions on such key issues as the establishment of an ISA. Finally, in addition to furnishing an opportunity to conduct interviews, attendance at UNCLOS III allowed the author to gain first-hand knowledge of the format and procedures of the Conference. Interviews supplied information that was unavailable in written form. They also meant that material otherwise available only from classified documents could be footnoted. Reliance on interviews, however, did present several methodological problems. Those interviewed did not always remember the details of past events or the reasons behind some of Canada's policy positions. Interviews, furthermore, are a subjective source of information. Everyone likes to think that he or she has made a creative contribu-

18 Canada and the International Seabed

tion to the policy-making process. As a result, the relative importance of a person's contribution may at times be exaggerated. The justification given for making a decision may also have been based on factors that only became apparent with hindsight, rather than in terms of the criteria used at the actual point of decision making. To a considerable extent, however, this problem can be overcome by interviewing as large and diverse a sample of relevant actors as possible and by comparing the views obtained with the conclusions drawn from a reading of the files. Finally, in some departments, such as the Ministry of State for Science and Technology in which only two individuals had any ongoing involvement with the deep seabed mining issues, the number of interviewees is obviously limited. Although it is important to be able to cite sources in academic works, some of the information supplied by the interviewees was confidential. In order to use this information and, simultaneously, to protect the identity of the source, we have included several footnotes without the name or precise title of the interviewee. Efforts have been made, however, to identify the general department or sector in which confidential interviewees worked, or to indicate the nature of their involvement with the deep seabed mining negotiations. A list of all those interviewed appears at the end of this book. The secondary sources used for the book fall into two main categories. The first, and most important, pertained directly to the UNCLOS in negotiations, as well as the seabed mining issues. These studies provide a background to the law of the sea talks and to the policies of other countries. They also served as a means of assessing the validity of the author's analysis of the primary research. The second group of secondary readings consisted of theoretical and empirical studies of Canada's foreign policy-making process and the role of interest groups within that process. These studies provided hypotheses not only with regard to which factors and actors were most important but also apropos the dynamics of the policy-making process. As such they offered a convenient benchmark against which the findings of this case could be measured.

CHAPTER TWO

Canada's Interests

Before any examination of Canada's policies at UNCLOS III, their evolution, and the means by which they were pursued, it is imperative to explore the breadth and depth of the Canadian interests in these law of the sea negotiations. For example, given the wide range of possible interests, we might well ask what specific interests were actualy in the ascendant as the Canadian delegation negotiated the law of the sea and, particularly, the deep seabed mining issues. If we compare the range of interests discussed in this chapter with the policies presented in chapter 3, Canada's official choice of priorities becomes clear. The process by which those priorities were selected can then be explored in the remaining five chapters. Our framework for investigating the range of interests is drawn from Arnold Wolfers' work on national goals.' Typologies used to identify the national interest2 are usually associated with a state-centric approach - one in which the state is seen as a unitary actor trying to maximize a rationally determined set of official goals. In our case, by contrast, the definition of the national interest varies with the individual decision maker. Official positions reflect the preferences of those best able to exert influence and are therefore not necessarily the best possible set of goals as measured by some objective standard. Wolfers' classification is thus not being used to define the national interest in deep seabed mining but, rather, to identify a wide range of possible interests and to assess their interconnectedness. Throughout the law of the sea negotiations, Canada made relatively few trade-offs; most of its interests were pursued as broadly defined goals. Opportunity costs are nonetheless involved in the pursuit of virtually any interest. Clearly the pursuit of one may divert resources from, or even undermine, another. In order to protect its nickel-mining industry, for example, Canada co-operated with other land-based producers, most of which were developing countries. The goal was to obtain an effective production formula. This move was made despite strong opposition from such traditional allies as the United Kingdom, the United States, and the Federal Republic

20 Canada and the International Seabed of Germany. In so doing, Canada was willing to risk the disapproval of those very countries with which it was most closely allied in such other policy areas as defence and monetary and trade agreements, in order to protect its principal economic interest in Committee One at UNCLOS III. Wolfers, in Discord and Collaboration, distinguishes between possession and milieu goals* The former seek to protect and promote the thing or things that are valued by the country.4 For example, one of Canada's major possession goals at UNCLOS III was to safeguard its international nickel markets from the threat of competition from the subsidized production of deep seabed resources. In contrast, milieu goals are not aimed at preserving or enhancing a country's possessions, but rather at influencing the nature of the international environment beyond the country's borders.5 For Canada, securing the international community's acceptance of a comprehensive convention on the law of the sea - one that would ensure an orderly, co-operative and just use of the oceans - was an extremely important milieu goal. The distinction between milieu and possession goals is important as one attempts to analyze Canada's position amid the complex negotiations. Wolfers acknowledged that milieu and possession goals may be related. Take, for example, the case of the law of the sea in which Canada, along with many other countries, worked on drafting an acceptable law of the sea convention that would elicit the approval of most of the international community. This goal was important as a means of safeguarding the provisions worked out at UNCLOS III, many of which were beneficial to Canada such as the exclusive economic zone, the Arctic exception, and the extension of the continental margin. But Canada's milieu goals in this respect were not merely means of protecting and promoting specific interests within Canada. Its milieu goals, which included the promotion of international institutions, international law, and international solutions to global problems, were complementary to its possession goals. There were other times when Canada's possession and milieu goals pertaining to the law of the sea actually conflicted. At the UNCLOS III discussions on the transfer of technology, the Western industrialized countries supported the use of voluntary codes. In contrast, the Group of 77, which viewed technology transfers as an essential element in the creation of a new international economic order, insisted that certain provisions be written into the convention to ensure the transfer of technology. Canada's possession goals in this regard were to protect both the free enterprise system and the large investments made by Canadian companies in developing the technology to mine the deep seabed. It thus favoured voluntary codes. But the developing countries would have refused a convention without provisions for the transfer of technology. Hence their inclusion was essential to

21 Canada's Interests

the realization of Canada's milieu goal of creating an internationally acceptable body of law to govern the use of the seas. In addition to the contrast between possession and milieu goals, a distinction can be made between general and specific interests.7 General interests seek to protect and enhance the interests of the country as a whole and would include regard for the state of the economy, security matters, and relations with other countries. In contrast, specific interests serve the interests of particular citizens, whether individually or as members of a group. In the case of deep seabed mining, Canada's general interests in promoting peace, international development, and justice were reflected in its support for the concept of the common heritage of mankind, a concept that reserved the international seabed area for peaceful purposes, while declaring its resources to belong to all, not just to those with the technological and financial resources to develop them. As was the case with possession and milieu interests, there can be interrelationships between general and specific interests. For example, disruptions in the world market for Canadian nickel would have a profoundly negative effect on Canadian companies that produce nickel, as well as on their employees and the communities themselves (for example, Sudbury and Thompson), whose economies are based on this nickel mining activity. The protection of international markets is thus of direct and critical importance - not only to these companies, but to the interests of particular citizens, whether as individuals or as members of a group. Yet the promotion of nickel sales abroad also has relevance to Canada as a whole, for nickel exports are important to Canada's balance of trade and to the health of the Canadian economy. In spite of the potential for overlap, the issue in this case remains one of specific interest, for, in effect, disruptions in world markets for nickel would have a profound impact on the communities concerned but a fairly minor effect on the well-being of most Canadians. Canada clearly had both milieu and possession interests associated with the law of the sea. The former focused around the role which Canada envisaged for international institutions (particularly the United Nations), international law, and international negotiations in the promotion of peace, justice, and development around the world. This quest [for international institutions and international law] is partially motivated by a sense of Canada's vulnerability, as a resource-rich but sparsely populated country, to a breakdown of the international legal order. It is, however, more directly inspired by a recognition of the broader, long-term value of enhancing, encoding, and rendering more durable the common values among states, a realization that mediation and peacekeeping are essential rear-guard actions, and a knowledge that in the absence of further action, an unjust status quo will prevail.8

22 Canada and the International Seabed Canada's concern for international institutions and international law was motivated by both self-interest and the desire to promote peace and justice around the world. An additional, and in this case complementary, milieu consideration for Canada at UNCLOS III.was the state of its relations with other countries. While these milieu interests were not held by all Canadians, they could be classified as general interests shared by the country as a whole. Canada had been a founding member and, at the time of the law of the sea deliberations, was a long-standing supporter of the United Nations. From the inception of UNCLOS III, the country recognized the importance of this new body - both directly, in terms of shaping maritime law, and indirectly, in terms of enhancing the reputation of the United Nations - as a creative forum in which to work out solutions to global problems. Canada viewed a law of the sea treaty as important, as a means of promoting global peace and stability and of ensuring that deep seabed production would be regulated so as to protect land-based producers.9 While Canada had in the past used, and would continue to use, unilateral and bilateral activities to further its interests in the law of the sea, it considered multilateral solutions to be the most effective means of securing the rational use of the oceans and of enhancing world order and stability. While negotiations held under the auspices of the United Nations allowed all states to participate and required all states to make compromises in order to work out a generally acceptable formula, no one country or group of countries could dictate the terms of the treaty, although some states did carry more weight and influence than others. The international negotiations at UNCLOS III also had the advantage of recognizing the interrelationships that existed between various law of the sea issues and could treat them as component parts of an overall package. One of Canada's key goals at UNCLOS III, then, was to promote productive negotiations that would result in the drafting of a generally acceptable law of the sea convention. In addition to its milieu interests, Canada had general and specific possession interests in all three of the main negotiating committees at UNCLOS III. Given the length of Canada's coastline, the breadth of its continental shelf, the importance of fishing to both its east and west coast communities, its reliance on world trade, its offshore oil and gas resources, its vulnerability to marine pollution (especially in the Arctic), its geopolitical position, its interest in marine scientific research, and the possible impact of deep seabed mining on its domestic mining industry,10 most of the issues under consideration at UNCLOS III were of direct relevance to its interests. In both Committees Two and Three, possession interests dominated. Most issues under consideration in Committee Two were of direct relevance to Canada's interests as a coastal state. Such issues as the breadth of the territorial sea, Canadian jurisdiction in the Arctic for purposes of environmental protection, boundary delimitation, the limits of the continental

23 Canada's Interests margin, and state jurisdiction over the resources in this area could be classified as general possession interests because of their implications for state sovereignty, national security, international trade, as well as Canada's access to the resources of the water column and seabed of the continental shelf. While these issues also affected the nature of the international environment, Canada's preoccupation with them was largely related to its possession interests. Although several of these interests affected some Canadians more than others, they were generally acknowledged by the country as a whole. For example, permitting Canada the right to exercise jurisdiction over the Arctic waters north of the Yukon and Northwest Territories for purposes of environmental protection was important to the well-being of the relatively small population of this region. It also had important implications for Canadian sovereignty. Canada had specific possession interests in Committee Two as well. Issues such as the extent of state jursidiction with regard to fishing and environmental safeguards in the waters adjacent to its territorial sea, as well as special regulations to govern anadromous and straddle stocks, were of particular interest to certain groups of Canadians; namely, those engaged in the east or west coast fishing industries or those living in areas adjacent to the sea. Codes for navigation also constituted an important milieu interest for Canada in Committee Two. Although foreign, rather than Canadian, ships transported most of the nation's exports and imports to and from countries overseas, Canada relied heavily on international trade. It therefore required an international environment that facilitated commercial shipping.1l Committee Three negotiated issues pertaining to the protection of the marine environment, marine scientific research, and the transfer of technology. As was the case in Committee Two, Canada's goals in Committee Three revolved around its possession interests, although some overlap with these and its milieu goals did occur. In all three areas of concern to Committee Three, Canada's possession goals tended to be based on the interests of specific Canadians. For example, the quality of the marine environment chiefly affected the fishing industry and those living along Canada's coastlines. Marine scientific research was necessary in order to protect the marine environment, to develop offshore oil and gas resources, and to manage effectively the harvesting of fish.12 But as a developed country, Canada also had interests pertaining to conditions under which transfers of technology could take place. Such an issue involved both specific possession interests, in terms of the immediate implications these transfers would have for Canadian companies, and milieu interests, in terms of the resulting provisions' potential to set precedents for future international agreements. Canada's overall objectives in Committee One could be classified into three broad categories: to ensure the success of the Conference; to translate

24 Canada and the International Seabed

the common heritage of the mankind principle into practice; and to protect and promote the nation's domestic interests. The first two reflected milieu interests, while the latter pertained to possession interests. Canada recognized the contentious nature of the seabed mining issues and, in its anxiety to ensure the Conference's success, attempted to ensure that the Committee One negotiations did not result in a stalemate, thereby undermining the chances of reaching agreement on a final comprehensive treaty. In its efforts to negotiate compromises acceptable to both developed and developing countries, Canada was one of the two countries to propose a joint venture system of exploitation, one that would allow the International Seabed Authority - through its operating arm, the Enterprise, and private and state entities - to participate. Canada's second milieu interest - to ensure that the concept of the common heritage of mankind was incorporated into the articles drafted - meant that all countries would benefit from the development of the Area. The concept was considered vital to the establishment of a just and orderly law of the sea. More importantly, supporting the common heritage of mankind was a prerequisite for achieving other highly prized goals. Developing countries simply would not have agreed to a final law of the sea treaty that did not promote the common heritage of mankind. Acceptance of the concept was also a prerequisite for securing the support of the Group of 77 for Canada's nickel production ceiling. By the time UNCLOS III held its first substantive session in the spring of 1974, Canada had five main possession interests pertaining to the international seabed area: 1

to ensure that Canada's multi-resources interests were not harmed by any deep seabed mining operations located adjacent to its continental shelf; 2 to protect Canada's mining industry, especially its nickel but also its copper and cobalt exports, from any disruptions to its international markets caused by the development of the mineral resources of the Area; 3 to ensure Canadian companies access to these resources on fair and equitable terms; 4 to promote the development of Canadian technological capabilities, especially with regard to exploring the Area and developing deep seabed mining equipment; and 5 to ensure that Canada had a voice in the decision-making process of the ISA. As mentioned earlier in this chapter, Canada's initial concern with Pardo's Declaration in 1967 was related to the first of the above-mentioned interests. While the definition of the continental shelf area continued to be of im-

25 Canada's Interests

portance to Canada throughout the Conference, the boundary between the area within coastal state jurisdiction and the international seabed area was negotiated in Committee Two. Hence it did not enter directly into Committee One's discussions of deep seabed mining. There was a certain amount of ambivalence over Canada's other possession interests in Committee One. On the one hand, Canada was a significant land-based producer of three of the minerals contained in the manganese nodules. On the other hand, two Canadian companies were partners in international consortia to explore the possibility of mining the deep seabed. Canada was the world's largest exporter of nickel13 and an increasingly major supplier of copper.14 Exports of these metals were worth over one billion dollars in 1976.15 Canada also produced cobalt, largely as a byproduct of its nickel-copper ores. While manganese nodules could act as a competing source of nickel, copper and cobalt, Canada's principal concern, as a land-based producer, was its nickel industry. For every kilo of nickel produced from the exploitation of manganese nodules, one could expect to produce one kilo of copper and one-tenth of a kilo of cobalt.16 As a result, and given world demand for these metals, the potential impact of seabed mining on world markets would be greatest for cobalt and least for copper. This fact was of serious concern to such countries as Zaire, which were heavily dependent on the export of cobalt. Canada's exports of cobalt, on the other hand, were fairly small relative to those of the other two minerals, and hence were never a focus of attention for Canadian decision makers. Copper also received less attention from Canadian decision makers, since much of the country's production was consumed domestically.17 This contrasted sharply with Canada's dependence on foreign markets for the sale of nickel. To both the government of Canada and the two provinces in which nickel mining was an important industry (Ontario and Manitoba), a reduction in Canada's nickel exports would have represented a loss of valuable tax revenues. That reduction would also have contributed to higher unemployment and to a larger trade deficit. Not only was the health of Canada's nickel industry of economic importance, but it also had significant social and political consequences. The industry was centered in the Sudbury Basin, Ontario, and around Thompson, Manitoba. It was critical to the well-being of these communities for it provided the residents with jobs. The municipal governments in both Sudbury and Thompson, as well as the labour unions representing the nickel miners, viewed unregulated production from the deep seabed as a threat to their industry and expressed such concerns to Ottawa. Because nickel mining was geographically concentrated and the federal politics of the day were so delicately balanced, it became of political import. Swings of a few seats in an election could make the difference between majority and minority

26 Canada and the International Seabed governments. The combination of these facts increased the likelihood that the issue would be forced onto the national stage, particularly if those individuals associated with nickel mining promoted the issue in their local communities as well as in the national political arena. The health of the Canadian nickel industry depended on two factors: world demand, and its competitive position relative to other sources of supply. In the case of the former, world nickel markets were depressed during most of the Conference, especially in the mid- and late 1970s. This low demand affected both land-based producers and the prospects for potential miners of the international seabed area. Forecasts for the 1980s, however, offered hope of improvement in the nickel market. 18 While Canada could do little to affect the rate of growth in world demand for nickel, it could work to improve its ability to compete with other sources of supply. Canada's nickel industry was already highly competitive. Its sulphidic deposits of nickel had several advantages over the laterite deposits found in most of the other nickel-producing countries. In the first place, the nature of its sulphidic ore meant that a crushing process could effectively separate a certain amount of the valuable minerals from the waste rock. As a result, only a higher quality of ore was smelted. In contrast, laterite ore had to be smelted down without any prior separation process, and that smelting process required a good deal of fuel to generate the necessary heat. Second, the sulphur contained in the sulphidic ore burnt, thus generating a good deal of its own heat, while the smelting of laterite ore was fully dependent on external sources of fuel. In terms of processing, the manganese nodules posed the same disadvantages as the laterite ores. Third, Ontario and Manitoba were rich in hydro-electric power used in the processing of nickel. In contrast, the countries that produced the laterite nickel tended to be dependent on petroleum resources to fuel their smelters. Until 1973, when the price of oil rose dramatically, laterite ores had been fairly inexpensive to produce, because they were located close to the surface and the cost of fuel was low. Thereafter, however, they became much more expensive to refine. Increases in the price of petroleum also added to the projected costs of smelting manganese nodules. The key issues for Canada, then, involved ensuring that its nickel mining industry would have free access to compete on world markets and that its competitors, especially the Enterprise, did not receive unfair advantages. Canada was concerned that some of the major consuming countries would subsidize the seabed mining operations of their nationals. A secondary concern was that the Enterprise would be given concessions, such as large amounts of funding by the international community and immunities from all types of taxation, which would give it unfair advantages over the Canadian mining industry. Through its membership in UNCLOS III, Canada was able to participate

27 Canada's Interests Table 1 Canada's Broad Objectives at UNCLOS III

General

Milieu

Possession

Support United Nations

Secure exclusive economic zone

Promote international law (order and justice)

Promote Arctic sovereignty

Maintain good relations with Maximize Canadian jurisdiction other states over its continental shelf Specific

Promote Arctic sovereignty

Safeguard nickel markets

Protect marine environment

Promote fishing industry

in the formulation of the rules determining the terms under which the mining of the deep seabed would take place. Canada's goal was to have production from the Area phased-in, so that the international markets for landbased producers would not be seriously disrupted. In addition to its interests as a land-based producer, Canada also had several interests as a potential seabed mining country. Two Canadian companies, Inco Limited and Noranda Mines Limited, belonged to international consortia that were studying the feasibility of exploiting the resources of the deep seabed. As a result, Canada wanted to ensure that its companies would have access to the resources of the Area and thus would be able to participate in its exploitation. Guaranteed access for private companies was needed, as were assurances that other entities wishing to engage in deep seabed mining, such as the Enterprise, would not be granted preferential treatment. OVERVIEW A number of broad objectives were identified during Canada's preparations for the Conference. Table I depicts several of these objectives. As government decision makers prepared for the negotiations and responded to their own political realities, the broad objectives were translated into a more specific set of bargaining aims. Those pertaining to deep seabed mining are illustrated in Table 2. Canada's formal positions on deep seabed mining reflected all four dimensions of this matrix. In practice, however, not all aims were accorded equal status. For example, greater weight was given to achieving a law of the sea treaty, working out a production ceiling, and obtaining a seat on the Council of the ISA, rather than

28 Canada and the International Seabed Table 2 Canada's Specific Bargaining Aims at UNCLOS III Milieu General

Possession

Create universally acceptable Obtain a seat on Council of Interlaw of the sea treaty national Seabed Authority Ensure Common Heritage of Ensure corporate access to Mankind principle is reflected seabed resources in law of the sea treaty Establish International Seabed Authority

Specific

Avoid undesirable precedents Secure an effective production for technology transfers ceiling Safeguard seabed mining technology of Canadian companies

to securing corporate access, or safeguarding technology. The final mix reflected the outcome of the interdepartmental bargaining process as well as the developments that took place at the Conference itself. In the light of the number and diversity of its milieu and possession interests, Canada was active at UNCLOS III in all three negotiating committees, as well as in the plenary discussions on general conference procedures, the provisions for the settlement of disputes, and the preparatory commission. As Canada's policies were being formulated, the diversity of milieu and possession interests resulted in a lively competition, the goal of which was to exert influence, both within the country and at UNCLOS III. The extent to which these interests were reflected in Canada's positions in the Committee One negotiations is examined in chapter 3.

CHAPTER THREE

Canada's Policies on Deep Seabed Mining at UNCWsm

SETTING THE STAGE

Canada's policies on deep seabed mining did not spring to life the eve of the Conference's first session. Indeed, their general tenets had been germinating during the preceding five years. The period from 1968 until the commencement of UNCLOSIII in December 1973 was, in fact, critical to the identification of Canada's interests and the development of its policies on deep seabed mining and other law of the sea issues. As one report puts it: "The statement of basic positions began as early as 1968 and continued as late as the second session of the Conference in Caracas in 1974. However, most national positions were formulated by the delegation during the sessions of the Sea-Bed Committee in 1970,1971, and I972."1 Despite the fact, then, that priorities shifted as the Conference progressed and policies continued to evolve, becoming much more detailed as the actual provisions under negotiation became more specific, the overall direction of Canada's policies was established in the years immediately preceding UNCLOS III. Chapter 3 begins, therefore, with an overview of developments during this pre-UNCLOS III period, before turning to examine Canada's policies on deep seabed mining at the Conference itself. In the latter 1960s, pressure for substantial international negotiations on the law of the sea was stimulated by rapid developments in marine technology and oceanography, increased concern about pollution, and fears of dwindling resources and of the impact of unilateral state actions. Less developed countries, most of which had not participated in either the First or the Second Law of the Sea Conferences, held in 1958 and 1960 respectively, became increasingly vocal in demanding a new forum in which they, too, could share in the formulation of the law of the sea. Further motivation for a conference came from the shared desire of the United States and the Soviet Union to clarify the limit of the territorial sea and to ensure the

30 Canada and the International Seabed right of innocent passage. It was prompted, as well, by a heightened international concern over marine pollution, following the 1967 disaster in which the oil tanker, Torrey Canyon, ran aground in the English Channel. But the main impetus for UNCLOS III came on 17 August 1967, when Maltese Ambassador Arvid Pardo made his historic declaration to the United Nations General Assembly.2 In his lengthy and passionate address, Pardo set forth his vision: the seabed beyond national jurisdiction, the Area, was to be used for peaceful purposes and its resources developed to benefit all peoples, with special regard for the needs of the less developed countries. The deep seabed and its resources, declared Pardo, were the "common heritage of mankind." This principle became a cornerstone for the subsequent law of the sea negotiations. In response primarily to Pardo's declaration, the United Nations General Assembly formed an ad hoc, and subsequently in 1968, a permanent, seabed committee to examine the possibility of establishing an international legal regime to regulate the development of the resources of the seabed beyond national jurisdiction. By 1970 it was widely recognized that the creation of a regime to manage the deep seabed was linked to a wide range of law of the sea issues. In December of that year, the General Assembly recommended that a third law of the sea conference be convened to negotiate a comprehensive treaty dealing with traditional maritime concerns and new issues, including the creation of an international seabed authority.3 Throughout the Seabed Committee proceedings from 1968 to 1973, therefore, there was a developing consensus that the deep seabed and its resources were the common heritage of mankind. Although the Seabed Committee produced a set of principles upon which subsequent law of the sea negotiations could be based, identified many of the key issues, and provided a forum in which countries and groups of states could present and discuss their positions, it did not complete its preparatory work prior to the first session of UNCLOS in in December 1973. It was hoped that by shifting locales and structures, the negotiations would be expedited.4 From its first meeting in December 1973 to the vote on the Law of the Sea Convention in April 1982, UNCLOS III held eleven sessions. (For an overview of these sessions, see Table 3.) UNCLOS III differed quite significantly from its predecessors, UNCLOS I and II. First, the conventions adopted at UNCLOS I were, in large part, attempts to codify state practice, whereas at UNCLOS III, an effort was made to create a body of international law for areas where no clear-cut legal norms existed. "In the first case, states responded directly to a rise in value of the seabed by making claims to the continental shelf. International organizations responded to state action by standardizing and depoliticizing the claims. In the second case, the United Nations responded to a rise in value of the

31

Canada's Policies at UNCLOS m

Table 3 Sessions of UNCLOS in: An Overview Session

Dates

Location

Comments

First

3-15 December 1973

New York

Second

20 June 24 August 1974 15 March 9 May 1975

Caracas

Fourth

15 March 7 May 1976

New York

Focus on organization and procedural matters Substantive negotiations begin in earnest Production of first negotiating texts and Informal Single Negotiating Texts Production of Revised Single Negotiating Text Canada responds with its own production ceiling Agreement reached on many important issues concerning coastal state jurisdiction (12-mile territorial sea, 200-mile exclusive economic zone)

Fifth

2 August 17 September 1976 23 May 15 July 1977

New York

28 March 19 May 1978

Geneva

Resumed: 2 August 15 September 1978 19 March 27 April 1979

New York

Third

Sixth

Seventh

Eighth

Ninth

Resumed: 19 July 24 August 1979 3 March 4 April 1980

Resumed: 28 July 29 August 1980

Geneva

New York

Geneva

New York

New York

Geneva

Production of Informal Composite Negotiating Text (deals with all the law of the sea issues in one comprehensive text). Organization of "Like-Minded States" Members of the Canadian and US delegations draft a compromise production ceiling

Revision of Informal Composite Negotiating Text Incorporation of Canada-us agreement into negotiating text Like-Minded States try to have a "floor" added to production ceiling Revision 2 of Informal Composite Negotiating Text Floor added to the production ceiling Reintroduction of anti-subsidization and free market access clauses Production of Draft Convention on the Law of the Sea US announces decision to review Law of the Sea Convention

32 Canada and the International Seabed Table 3 (continued) Sessions of UNCLOS HI: An Overview Session

Dates

Location

Tenth

9 March 24 April 1981 Resumed: 3 August 28 August 1981 3 March 30 April 1982

New York

Eleventh

Comments

Geneva New York

Adoption by Conference of Convention on the Law of the Sea US presentation of results of its reviews; proposal of extensive changes to the deep seabed mining provisions

deep seabed before any states had made claims."5 This trend reflected new ways of thinking about the sea and the regulation of its uses. Participants at UNCLOS i and n, therefore, were preoccupied with the traditional principles that had long governed the law of the sea: state sovereignty and freedom of the high seas. UNCLOS m, on the other hand, developed new concepts, such as the exclusive economic zones and the common heritage of mankind, in order to establish a comprehensive, equitable, and orderly body of law to govern the oceans. Second, the range of issues dealt with at UNCLOS m was far wider than that considered by previous conferences. In addition to the coastal state jurisdiction and fishing and navigational rights that had been negotiated at UNCLOS i and n, UNCLOS ra also considered such issues as maritime pollution, marine scientific research, and deep seabed mining. Third, the number of countries participating in UNCLOS m, many of which were developing states that had come into existence after 1960, greatly exceeded those of its predecessors. While close to ninety states had participated at UNCLOS i and n, 158 were represented at UNCLOS m. Fourth, most developing countries had played little, if any, role at UNCLOS i and n. UNCLOS ra, in contrast, offered these countries an important opportunity to participate in the formulation of international law and to further their goal of creating a new international economic order. Fifth, while the principal alignments at the 1958 and 1960 conferences followed East-West divisions, at UNCLOS in the North-South dichotomy dominated, although alignments varied from committee to committee and according to the issue under consideration. Although the North-South division was most pronounced on the issues pertaining to deep seabed mining, as will be discussed later in this chapter, several countries, including Canada, had interests and policies that transcended this categorization.

33 Canada's Policies at UNCLOSIII

Finally, the preparations for UNCLOS I and II differed from those of UNCLOSIII m. The 1958 Conventions were based on draft articles formulated over a period of several years by the International Law Commission, with the assistance of the Food and Agriculture Organization. This procedure was not used for UNCLOSIII, largely because of the highly political nature of the issues at stake. Instead, the preparatory work for the Conference was carried out primarily by the Seabed Committee, in which many of the subsequent members of UNCLOSIII, including Canada, participated. Another innovative development at UNCLOS m was the use of negotiating texts drafted by Conference officials to aid participants in reaching consensus on the various issues under discussion. In sum, UNCLOSIIIdiffered from its predecessors in terms of its creative approach to the law of the sea, the wide range of issues on its agenda, the number of countries participating, the alignments into which they organized themselves, and the innovative procedures implemented. The combination of these factors meant that progress was generally slow and the negotiations frequently contentious. Nevertheless, it also meant the possibility of creating a new body of international law - one more equitable and comprehensive than the previously drafted codes. Prior to Pardo's declaration in 1967, Canada had not formulated a policy on deep seabed mining. That declaration focused international attention on the rich resource potential of the deep seabed and the need to establish rules to regulate its development before exploitation began. Like most states, Canada recognized the existence of the deep seabed as an area beyond national jurisdiction and advocated that it be used solely for peaceful purposes rather than subjected to national or private appropriation. In accepting the common heritage of mankind principle, Canada interpreted it to mean that Canada and other developed states were to share some of their wealth with the developing countries. And in order to ensure that the resources of the Area were exploited on an orderly and co-operative basis, Canada would support the establishment of international regulatory machinery.6 As mentioned in chapter 2, Canada's major and initial concern about the common heritage of mankind principle was the possible effect it could have on limiting coastal state jurisdiction over the continental shelf. In addition, Canada sought to ensure that its companies would be able to participate in the exploitation of the resources of the Area. Especially after 1970, Canada's aim was to secure an international agreement that would protect its land-based mining industry from possible market disruptions when seabed mining began. These basic concerns were reflected in Canada's policies in the Seabed Committees. Canada abstained on the United Nations General Assembly's Resolution 35730 of 15 December 1969, which placed a moratorium on the

34 Canada and the International Seabed explorations and exploitations of the international seabed area until an international legal regime and machinery to regulate these activities had been agreed upon. During the Seabed Committee meetings and at UNCLOS III, Canada consistently drew a distinction between exploratory activities and the exploitation of resources. According to Canada, the latter were not to take place before an international regime had been established. It therefore remained critical of moves by the United States, the Federal Republic of Germany and the United Kingdom to enact unilateral legislation to permit deep seabed mining by their nationals. Canada did support, however, the ongoing development of marine technology pertaining to the Area. In sum, Canada abstained on the General Assembly's moratorium on the grounds that it would have placed unnecessary limitations on the development of scientific and technological expertise, which would, in turn, further delay the commencement of seabed mining. Canada argued that, until seabed production was underway, no one would be able to benefit from the common heritage of mankind. In 1970 the Seabed Committee produced the "Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jursidiction,"7 a document adopted by the General Assembly on 17 December 1970. This declaration, an elaboration of the general tenets of Pardo's proposal, designated the international Area and its resources as the common heritage of mankind. They were not, therefore, to be appropriated by any state or private entities. While there was general acceptance of the principles, there was considerable disagreement as to their meaning and the means of translating them into practice. In spite of some reservations, Canada viewed these proposals as compromises, the acceptance of which was necessary before further progress could be made in preparing for UNCLOS III and in negotiating substantive issues. As a result, Canada took an active part in promoting their adoption and subsequently voted in their favour. At this time, the need to secure agreement and to facilitate activities in the Area seemed to take precedence over direct Canadian interests as a land-based producer. "While the Canadian Delegation agrees that it is desirable to guard against the disruption of world markets, we do not consider that this objective should be permitted to override the paramount need to develop resources for the benefit of mankind and the developing countries in particular."8 An additional factor behind Canada's stance on the Declaration of Principles was the recognition that support for it was a necessary prerequisite to securing membership in the Preparatory Committee. On 17 December 1970, the same day that the Declaration of Principles was adopted, the United Nations General Assembly voted to convene a third law of the sea conference in I973- 9 This agreement was achieved only after hard negotiations. Opinions diverged widely on the scope of the issues to

35 Canada's Policies at UNCLOS III

be considered by a third conference. Throughout the Seabed Committee's negotiations and at UNCLOS III, Canada, and most of the developing countries, had insisted that the law of the sea issues be treated as component parts of an overall package. Such an approach recognized the interrelationships that existed between the various law of the sea issues, while making explicit the need for all countries to make concessions. The major powers initially advocated a limited agenda for the Conference; they were eventually persuaded, however, to agree to the negotiation of a comprehensive treaty on the law of the sea. Canada strongly supported the establishment of UNCLOSIII.Several issues of importance to Canada, including those pertaining to the continental shelf and fisheries jurisdiction, remained outstanding from UNCLOS I and II. Advances in technology and increased world demand had also created innovative ways of using the oceans and their resources, such as deep seabed mining, as well as new problems, such as overfishing and marine pollution. Canada not only thought international negotiations were the best way to secure its milieu goals of ensuring rational use of the ocean, global order, and world stability, but it also viewed UNCLOS III as the international forum most conducive to the realization of the nation's possession objectives. It contended that the interests of the coastal states, especially regarding the issues pertaining to fishing and ocean pollution, were better represented at UNCLOS iiii than in either the Inter-Governmental Maritime Consultative Organization10 or the International Commission for the Northwest Atlantic Fisheries.'' On the issues pertaining to the deep seabed, Canada argued that international agreement was necessary if the resources in the Area were to be developed in an orderly and just fashion. Only that level of agreement, it claimed, would ensure that the economies of the land-based producers of the same metals as had been found in the manganese nodules were not about to be undermined by disruptions to world metal markets. The period from 1967 to 1972 laid the groundwork for the subsequent UNCLOS III negotiations. In the course of the Seabed Committee discussions, the key issues were identified. States, both individually and in various groupings, presented position papers and counterproposals. A general set of principles for the international seabed area was agreed upon. As a result, the basic alignments were in place before the Conference began. On 2 November 1973, just prior to the first session of UNCLOSIII, the Canadian government tabled its position paper on the law of the sea.12 Canada's policy was outlined under nine headings: the living resources of the sea; the resources of the continental shelf; navigation; territorial sea; passage through straits used for international navigation; archipelagoes; protection of the marine environment; marine scientific research; and the international area of the seabed. At this point, Canada was most concerned with its own economic interest. Consequently, highest priority was given

36 Canada and the International Seabed to the rights and responsibilities of coastal states to harvest resources and to protect the marine environment, both within their territorial seas and in and above the continental shelf. The common heritage of mankind and ISA were also of concern to Canada. Interests in these ancillary matters stemmed primarily from the fact that they were crucial to the overall success of the Conference and to North-South relations. CANADA AT UNCLOS III

Throughout the UNCLOS m negotiations, Canada sought to achieve a treaty package that would protect and enhance its diverse milieu and possession interests. Efforts to avoid making trade-offs between various Canadian interests were facilitated by the diversity of the alignments in the negotiating committees. For example, in the Committee Two discussions of off-shore revenue-sharing, land-locked states, such as Zaire and Zambia, opposed the positions of such developed coastal states as Canada, the United States and the United Kingdom. In contrast, in Committee One, Canada, Zaire, and Zambia, as land-based producers, co-operated on the nickel production ceiling, while the United States and the United Kingdom, in general, opposed measures that would curtail deep seabed mining. The fact that different alignments formed around various issues meant that there were relatively few areas in which countries could sacrifice one set of interests to achieve another. In addition, individual members of the Canadian delegation had specific areas of expertise. Individual delegates tended to focus on the discussions in one particular committee and to negotiate issues within the mandate of that committee. As a result, it was difficult for them to sacrifice an interest in one committee in order to achieve a goal in another. This is not to say that there were no priorities, or that these priorities did not change and evolve over time. Canada was very concerned about fishing questions throughout the Seabed Committee period and the early part of the Conference. By 1976, however, general agreement had been reached on the exclusive economic zone, which satisfied most of Canada's objectives pertaining to fishing rights, with the exception of anadromous species and straddle stocks. As a result, the attention previously devoted to these issues could be redirected. In addition, as the Conference progressed and the terms of a possible treaty became more clearly defined, Canada's policies became more detailed. The case of the production ceiling is a case in point. Up until 1976, Canada had expressed concern over the possible negative effects of seabed mining on the international markets for its land-based mineral exports, but had stressed the need for free market competition. It was not until 1976, when a production ceiling was included in the Revised Single Negotiating Text, that Canada seriously examined the benefits of such a mechanism. From that moment onward, the production ceiling became one of Canada's major concerns at the Conference.

37 Canada's Policies at UNCLOS III

Although the Canadian delegation did not make any direct trade-offs regarding its interests in Committee One, the allocation of time and resources to the various issues did vary considerably. According to several members of the Canadian delegation, Canada's preoccupation with the production ceiling curtailed its ability to negotiate on other issues, such as the transfer of technology, the financial terms of contract, and the voting on the Council of the ISA. The priority given to the production ceiling also helped to determine which states would be Canada's principal allies. In order to retain the support of these allies, in particular the Group of 77, Canada had to support their objective of having a strong, viable Enterprise. That latter decision was crucial, as well, to securing the support of the developing countries for a law of the sea treaty, and to translating the common heritage of mankind concept into practice. These decisions were, in turn, important to Canada's milieu goals of creating a just and stable world order. A further reason for not taking a strong stand on such issues as the transfer of technology and the financial terms of contracts was that the major industrialized countries were very vocal regarding these matters. As a result, Canada did not vigorously pursue its national interests vis-a-vis the financing of the Enterprise nor the transfer of technology. Not only did that not seem necessary, given the strength of the presentation by the industrialized countries, but it was also wiser to avoid alienating the Group of 77, whose support was needed to get a satisfactory nickel production ceiling. While Canada's policies on deep seabed mining evolved fairly consistently throughout the course of the Conference, they can be categorized as falling into one of three time periods: December 1973 to May 1976; June 1976 to February 1981; and March 1981 to April 1982. Canada's role in the Committee One negotiations during the first period (sessions one to four) was largely that of a conciliator. Thereafter, attention was focused on securing the well-being of Canada's land-based mining industry. During the last two years of negotiations, the Canadian delegation once again played a particularly prominent role in trying to bridge the gap between the conflicting views of the major industrialized countries and the Group of 77. Our examination of Canada's policies on deep seabed mining will focus primarily on the evolution of dominant trends. For example, from the fifth to the tenth sessions (the second period), the Canadian delegation in Committee One devoted most of its attention to the production ceiling. Our discussion of this period will therefore concentrate on Canada's struggle to ensure that nickel from its land-based mines would be able to compete for world markets under free market conditions. This is not to say that Canada did not devote considerable energy to other issues under negotiation in Committee One. In addition to securing a universally acceptable treaty and an effective production ceiling, the key seabed mining issues for Canada were the following: membership and decisionmaking procedures of the Council of the ISA; financing of the ISA; finan-

38 Canada and the International Seabed

cial terms of contracts to mine the deep seabed; status of the Enterprise and arrangements to ensure the financial terms of its contracts to mine the deep seabed; status of the Enterprise and arrangements to ensure its financial and technological viability; provisions for the review conference and for preliminary investment protection; and rules to ensure fair economic practices in all stages of the development and marketing of deep seabed resources. Towards the end of this chapter, when Canada's overall success at the Conference is being assessed, Canada's objectives in these areas will be discussed. This approach will highlight both the dominant issues for Canada in Committee One and the evolution of its priorities throughout the Conference. During the initial four sessions (December 1973 to May 1976), priority was given to the issues under negotiation in Committees Two and Three. These were the issues of direct importance to Canada's economic interests. For example, prior to the third session, the Department of External Affairs announced that the major concerns for the Canadian delegation at Geneva were to be the continental margin, salmon, and marine pollution.13 In contrast to the immediate relevance of the Committee Two and Three issues, deep seabed mining appeared to be a matter for the distant future. In fact, it did not seem to be of any particular, immediate, economic or political significance to interests within Canada. Committee One, therefore was the forum in which the Canadian delegation could afford to be generous, to play the role of "good guy." At this time, its primary concern in that committee, was to reconcile the divergent views of the developed and developing countries and, thereby, to avoid the breakdown of the negotiations. As a result, its representatives worked hard, and with some notable success, to produce compromise positions which, while in keeping with its possession interests, would help to bridge the gap between the positions of the developed and developing countries. Two issues preoccupied Committee One during this period. The first was the question of who could exploit the resources of the Area, an issue that had resulted in a stalemate in the Seabed Committee. The second, an interrelated but more specific problem, concerned the establishment of the rules and conditions under which the resources of the deep seabed could be explored and exploited. On each of the key substantive issues, the positions of the Group of 77 and the industrialized countries diverged widely, as was apparent in the major policy papers presented by the Group of 77, the United States, eight EEC countries, and Japan.14 Neither the Group of 77, however, nor the developed countries, were completely unified in their stands. On the question of who might exploit the resources of the Area, the Group of 77 argued that the ISA should have the right to exploit the territory, either alone or in co-operation with other entities. It sought to reserve the

39 Canada's Policies at UNCLOS III

principal role of developing the Area resources for the Enterprise. This, it argued, was an essential prerequisite to translating the common heritage of mankind into practice. In contrast, the industrialized countries were eager to ensure their supplies of the minerals contained in the manganese nodules. As a result, they insisted that the resources of the Area be developed primarily by corporations and state entities. In addition to securing the right for these entities to conduct activities in the Area, the developed states sought to ensure that the provisions for the ISA did not place onerous burdens on private and state enterprises. They believed that these would only act as disincentives to the commercial exploitation of the resources of the deep seabed. The question of access was important to Canada, primarily because the conflicting positions of the two alignments threatened the success of UNCLOS III. The notion of access also involved a specific possession interest: the ability of Inco and Noranda to participate in activities in the Area. In an attempt to break the deadlock, the Canadian delegation proposed a joint venture system for developing the Area's resources. This system would ensure access for both the Enterprise and the private and state entities. The private and state entities would be able to mine under contracts with the Enterprise, for the latter did not have the necessary financial resources or technological expertise, alone, to begin exploration or exploitation. At least in the initial period, therefore, the actual mining activities would be subcontracted to private and state entities. Canada recommended that once the ISA had acquired the necessary financial and technological capabilities to exploit the resources, it be allowed not only to enter contractual agreements but to proceed unilaterally. Canada stipulated that, in order to allow the Enterprise as well as the private and state entities to participate in and benefit from activities in the Area, certain conditions would have to be met. The contractual agreements, for example, would have to ensure that the ISA received a fair share of the benefits accruing from the development. Private and state entities were to receive certain guarantees of fair returns on their investments. Canada stipulated that the only grounds for granting contracts to private and state entities would be their financial and technical ability to carry out the work. The ISA was not to award contracts for political reasons, nor to revoke or unilaterally revise a contract once it had been agreed upon. To prevent those private and state entities ready to proceed with exploitation from monopolizing all the regions of highest potential, and to reduce the likelihood of purely speculative activities in the Area, Canada recommended that certain sections of the deep seabed, including portions of those areas allocated to contractors, be reserved for the ISA. As is apparent from the above discussion, the question of who should have access to the resources of the Area was closely related to the question

40 Canada and the International Seabed

concerning the optimum basic conditions for exploring and exploiting these resources. On the latter question, the Group of 77 advocated that all activities in the Area be controlled by an ISA with considerable discretionary powers. In contrast, the industrialized states basically wanted the ISA to have limited regulatory powers and to function primarily as a licensing body for contracts dealing with the mining of the deep seabed. Once again Canada adopted a middle position. It supported the establishment of an ISA with "comprehensive powers." Such powers, it argued, would permit the body to determine the early, orderly, and rational development of deep seabed resources, while ensuring that such development was consistent with the common heritage of mankind principle. Canada advocated that, while the rights of the operators had to be protected and general guidelines set, the details of each contract should be worked out separately, according to the conditions and circumstances in operation at the time. Committee One also considered the question of what specific powers, if any, should be given to the ISA in order to minimize the negative effects that unregulated deep seabed mining could have on those countries exporting the same minerals as those found in manganese nodules. In spite of the fact that most developing states were consumers rather than producers of the minerals contained in the manganese nodules, the Group of 77 was generally supportive of the producers. It argued that the ISA should have the power to control deep seabed mining in order to protect land-based producers, particularly those less developed countries that were heavily dependent on mineral exports. In contrast, the industrialized states were opposed to granting the ISA any powers apropos price setting or production control of the Area resources. Both the United States and the United Kingdom argued that such controls would be of relatively little help to land-based producers and would actually be detrimental to consumers, who would face higher prices for minerals from the ocean floor as a result. In several respects, the fourth session (15 March to 7 May 1976) marked a watershed in the negotiations. In the first place, by 1976 general agreement had been reached on several contentious issues that were critical to Canada and had been under consideration in other Committees. For example, the granting of the right to the coastal states to exploit the resources within their respective continental margins adequately fulfilled Canada's objectives in this area. Success in achieving objectives in the other two committees enabled the Canadian delegation to devote greater resources to the Committee One negotiations. Second, the prospects for reconciling the conflicting positions of the developed and developing countries were improved during the 1976 negotiations, because the United States demonstrated a considerable degree of flexibility in its bargaining position. In April 1976, for instance, us Secretary

4i

Canada's Policies at UNCLOS m

of State Henry Kissinger proposed a system of parallel banking as a solution to the problem of access to the resources of the Area.15 Under this system, the Enterprise, as well as the states and corporations, could participate in the exploration and exploitation of the resources of the Area. In brief, the parallel banking system proposed that states or private entities wishing to begin seabed mining should submit two sites of equal value to the ISA. The latter would select one site for the Enterprise or a qualified developing country to exploit, while the other could be mined by the applicant under contract from the ISA. In return for this compromise, the United States sought a significant voice in the decision-making process of the council of the ISA. Towards the end of the fifth session in September 1976, Kissinger presented additional compromise proposals.16 In return for guaranteed access for private companies, the United States said it would agree to explore ways of ensuring that the Enterprise would receive sufficient financial and technical resources to enable it to become commercially viable and to begin seabed mining at the same time as other private and state entities. Kissinger further proposed that a review conference be held twenty-five years after the law of the sea treaty came into force at which the regime for the Area would be reassessed. The proposal was a concession to the developing countries that wanted mechanisms for making future revisions to the international regime. By and large, Canada welcomed the American compromises, for they enhanced the possibility of reaching agreement. Ironically, however, the inclusion of these provisions in the negotiating texts, and subsequently in the Law of the Sea Convention, was a major reason for the subsequent rejection by the United States of the Convention in 1982. The watershed was further shaped by a third development - one that was far less satisfactory from Canada's point of view. In fact, it presented Canada with a problem that would devour large amounts of its delegates' time and energy for the rest of the Conference. In the spring of 1976, Paul Engo, chairperson of Committee One, had, at the instigation of the United States, organized a small secretive group known as the "Mafia" - its objective to design a formula to regulate the production of minerals from the deep seabed. At its centre was Leigh Ratiner, an American representative in Committee One, who insisted that all participants were to keep the proceedings confidential. Canada was not included in the group for, allegedly, Canada, as a major land-based producer whose international mineral markets could be negatively affected by production from the Area, had a 'Vested interest". Even Don Crosby, Canada's representative on Committee One, who knew the "Mafia" existed, did not know what it was working on.17 All too soon he was to find out. On the afternoon of 29 April 1976, the last day of the Session, a produc-

42 Canada and the International Seabed tion ceiling, allegedly the product of "Mafia" deliberations, was distributed in Committee One. It was designated paper c. I/PBE.Q. Although "PBE" were Engo's initials, the formula had actually been drafted by the United States and included at its insistence. Up to this point, Canada, like most industrialized states, had been opposed to any interference with free market competition for new forms of production. After some rapid calculations, however, Crosby concluded that the formula limited future markets for land-based, not seabed, producers. When he went to check his calculation with V.K.S. Varadhan, director general of the Geological Survey for India, and Eric Langevad, commissioner of mines for Zambia, he found that they already had figures for the formula that had been worked out by the "Mafia".18 Since Canada had been branded as a country with a vested interest, Crosby borrowed Varadhan's figures and went over to Engo to protest both the formula and the secretive way in which it had been negotiated. But it was too late. Engo was already banging his gavel to close the meeting. Angry, and concerned about both the content of the production ceiling and the clandestine way in which it had been introduced - it had never even been debated openly - Crosby set off to brief Alan Beesley, deputy head of the Canadian delegation. Two hours later both men sat down to a dinner hosted by the formal head of the Canadian delegation, the secretary of state for external affairs, Don Jamieson. Other guests included Romeo LeBlanc, minister of fisheries, members of the Canadian delegation, and their spouses. Although the dinner was to have been a social occasion, light conversation soon gave way to discussion of a highly technical subject: the production ceiling. The next day, the same issue dominated the morning meeting of the Canadian delegation. Once again, Crosby explained developments in Committee One and the implications of the production ceiling for Canada's nickel industry. He recommended that the Canadian delegation work to ban that formula from inclusion in the Revised Single Negotiating Text19 scheduled to appear only a few days later. All agreed with the recommendation.20 Since Jamieson and LeBlanc were both in attendance, ministerial approval was considered given. It subsequently became clear, however, that Beesley and Crosby had rather different views on how to get rid of the production ceiling. Beesley pointed out that the recommendations concerning the ceiling had come out in a key paper, one very likely to be included in the Revised Single Negotiating Text. The concept was firmly entrenched and hence, he argued, the best strategy was to try to replace the existing formula with one that would assist land-based producers rather then curtail their future markets. Crosby preferred to focus on demonstrating that the whole concept, rather than just the existing formula, was ill-conceived. He based his stand on the grounds that UNCLOS III lacked experts capable of assessing com-

43 Canada's Policies at UNCLOSIII

modity policies. He also argued that if Canada were to present a counterproposal, subsequent discussions would focus on a debate of the relative merits of formulae rather than the means of dispensing with the concept of a production ceiling. As deputy head of the Canadian delegation, and its leader in practice, Beesley bore responsibility for its actions and had the authority to allocate the related work. In effect, he had the final say. He asked Crosby to draft a counter proposal. Crosby complied and, using pencil, paper, and a pocket calculator run on batteries he drafted what became known as the "Canadian formula". Thereafter, beginning at the first session in 1977, the Canadian delegation always took a computer to the Conference to assist in the complex calculations. In terms of content, Crosby's primary concern with the Engo formula revolved around the arbitrary 6 percent figure set as the minimum percentage of the annual growth in world demand for nickel that seabed operators should be allowed to supply. If the actual growth rate fell below 6 percent, the formula would offer no protection for land-based producers and, in fact, their markets could be depressed. The 6 percent figure was based on the demand for strategic stockpiles of nickel needed for military consumption during the Vietnam War. According to Crosby's calculations, the growth rate was expected to be 4.5 percent at best.2' The formula therefore appeared likely to place a ceiling, or an upper limit, on land-based, rather than seabed, production. In fact, the Canadian formula was an improvement over the Engo formula on two important counts.22 First, it linked the ceiling to the actual yearly growth rate in the world demand for nickel, over a set period and prior to the commencement of deep seabed mining. As noted above, the Engo formula was based on the arbitrary figure of 6 percent, although there were several provisions for revising this figure periodically. Second, the period during which the Canadian formula was to apply began with the actual start-up of commercial production from the deep seabed. In contrast, the date of commencement in the Engo formula was arbitrarily set for i January 1980. The Canadian formula sought, furthermore, to protect the interests of both land-based and seabed miners. As a start-up incentive for seabed producers, they were allowed to supply the entire growth segment during the first five years of commercial production from the seabed. After the initial five-year period, the increase in the world demand for nickel would be split between land-based and seabed producers on a fifty-fifty basis. In a final effort to prevent the Engo formula from being included in the Revised Single Negotiating Text, Beesley, Crosby, and a third member of the Canadian delegation, Bob Auger, went off to see Engo, Crosby's counterproposal in hand. They hoped that, by providing more realistic figures, they

44 Canada and the International Seabed

could convince Engo of the flaws in the formula he had presented. In spite of their lobbying efforts - phrased at first gently, but then with increasing vehemence - they were unable to prevent the formula from appearing in the Revised Single Negotiating Text out on 6 May. They did, however, persuade the chairperson to add a footnote to the text saying, in effect, tha.t further work was needed on this issue, especially on the projected rate of increase in the world demand for nickel. Once inclusion of the Engo formula in the Revised Single Negotiating Text appeared inevitable, Beesley and Auger began to try to convince delegates from other countries of the superiority of the Canadian production ceiling. The quest for a ceiling on the production of seabed nickel was not based on a concern for the economic viability of Canada's land-based mines under free market conditions, since Canada's sulphidic nickel was economical to produce. There was, however, the very real fear that some of the countries that consumed the metals found in the manganese nodules would subsidize, either directly or indirectly, the deep seabed mining operations of their nationals. The General Agreement on Tariffs and Trade (GATT) provisions offered no real protection from such subsidization, or avenues for recourse should subsidization take place. Under the GATT code, export subsidies were prohibited, although signatories to the codes could justify other types of subsidies on the grounds that they were necessary for the attainment of policy goals. Subsidization could take place in several ways, including tax concessions processing allowances, and guaranteed markets for the nationals through imposition of quotas on or tariffs against imports from land-based producers. The risk of subsidization was great, not only because of the strategic importance of the minerals found in manganese nodules but because several of them, especially cobalt, came from countries that the Western states viewed as unreliable sources of supply. Given the enormous costs of deep seabed mining, especially in the short-term, and the fact that ihe Revised Single Negotiating Text appeared to give the Enterprise unfair advantages over state and private operators, several countries thought subsidies were necessary as a guarantee of production and hence a secure supply source of these strategic metals. The advantages which the Revised Single Negotiating Text accorded the Enterprise, in terms of tax and import duty exemptions, immunities, and other privileges, meant that its operations would be in a better position to compete with land-based producers for international markets. Because Canada considered these to be unfair advantages, it suggested that a portion of the increase in world demand for land-based exporters be reserved. In effect it suggested that a ceiling be put on the amount of growth in world demand that the seabed miners could supply. The Canadian formula received mixed reviews. Although it was wellreceived by a large number of land-based producing countries, including Columbia, Guatemala, Indonesia, Brazil, Cuba, and Chile, and formed the

45

Canada's Policies at UNCLOS m

basis for a subsequent Group of 77 position paper on the subject, it was strongly opposed by the major industrialized states, including members of the EEC, Japan, and the United States. The inclusion of the production ceiling in the Revised Single Negotiating Text prompted Canada to organize the Land-based Producers' Group. The membership of this group consisted of those countries that mined and exported one or more of the minerals contained in the manganese nodules. As will be discussed in chapter 7, the land-based producers were a diverse group, largely because of the nature of their various exports. Of the three minerals of greatest concern to the land-based producers - cobalt, nickel and copper - deep seabed mining was expected to disrupt world markets of the former most and those of the latter least. In fact, the production ceiling in the Revised Single Negotiating Text offered good protection for copper producers; once that protection was established in writing, there was little reason for those members of the Land-based Producers' Group to be very active. In contrast, the producers of nickel, and more especially those of cobalt, continued to work throughout the Conference; they wanted adequate safeguards to ensure that the international markets for their exports would not be seriously disrupted by deep seabed mining. Canada was very active in the Land-based Producers' Group from its inception and continued to play a lead role throughout its operation. The production ceiling preoccupied Canadian delegates in Committee One for the next two years. In the summer of 1976, the Group of 77 presented its own formula that incorporated the Canadian mechanism of constructing a production curve. But by excluding the five-year build-up period, the Group of 77'$ proposal placed greater restrictions on production from the Area than did the Canadian ceiling. The latter was presented, therefore, as both a realistic approach and a compromise position between the Engo and Group of 77 formulae. At the same time, in an ongoing attempt to ensure fair and equitable access to international markets for both seabed and land-based producers, the Canadian delegation tried to have anti-subsidization clauses included in the text. It also tried to ensure that the Enterprise was not given unfair advantage over other producers. It was unlikely, however, that these goals would ever be fully realized. A production ceiling on seabed mining appeared to be necessary. As time went on discussions on the production ceiling became increasingly more complex. In 1976, Canada sent four technical advisors to the summer session.23 That autumn, a British delegate, Alan Archer, formed a group of experts to study mechanisms for calculating production ceiling formulae. The only land-based producing countries to be represented in the group were Canada and Indonesia, and, of the fifteen to twenty group members, three were from Canada's DEMR. Following Canada's lead at the 1977 spring session, the United States began to bring its own computers to the meetings. Thereafter, technical

46 Canada and the International Seabed advisors from both delegations calculated and recalculated figures for tonnages, number of mine sites, and build-up periods. Formulae were drafted and redrafted. Other land-based producers also began to send mining experts. The prospects of securing an acceptable ceiling brightened on 4 May 1978, when members of the Canadian and American delegations concluded an ad referendum agreement. According to Don Crosby, the breakthrough was the result of two years of hard negotiations, a veritable "battle of computer paper."24 The last, controversial technical details were worked out by Dave Pasho (Canada) and Ray Meyer (USA) during a ski weekend in Zermatt, Switzerland. One evening after a day on the slopes, the two men, both technical advisors for their respective delegations and experts in offshore mining, sat down over cognac and agreed to negotiate "off-the-record."25 A middle ground was reached. Once back in Geneva, they ran computer simulations in the agreed range and arrived at an acceptable compromise. The very day that the ad referendum agreement was reached, Beesley flew back, as scheduled, to his diplomatic post in Canberra, Australia. News of the agreement was leaked to the press and rumours began to fly. On the advice of Elliot Richardson, head of the American delegation, Crosby, as the acting head of the Canadian delegation, tabled the Canada-USA Production Ceiling Proposal in Negotiating Group One on 9 May 1978. The ad referendum agreement, subsequently incorporated into the draft negotiating text, provided a basis for discussions at the resumed seventh session. The agreement came when international nickel markets were depressed, at a time when the United States Congress was moving closer to passing unilateral deep seabed mining legislation. Because it wanted to protect its mining industry, Canada was eager to have an effective production ceiling included in a law of the sea convention. Canada's bargaining position was strengthened by the depressed world markets for nickel, the lay-offs in Sudbury, Ontario, and the fact that representatives of Local 6500 of the United Steelworkers of America (the union representing the Sudbury miners) were on the Canadian delegation and strongly in favour of the inclusion of a nickel production ceiling. The Canada-us formula represented significant compromises by the world's largest nickel producer and nickel consumer. Although Canada had favoured a fifty-fifty split, the United States had wanted a seventyfive/twenty-five split in the percentage of market growth that deep seabed miners and land-based producers, respectively, could supply. They therefore agreed on a formula that reserved 40 percent of the increased world demand for nickel for land-based producers, while allowing land-based and seabed miners to compete for the remaining 60 percent. The formula sought to provide protection for land-based producers without undermining the incentives for deep seabed miners. The production figures set for the tonnage of

47 Canada's Policies at UNCLOSIII

nickel from the Area were deemed to be sufficiently high to satisfy the requirements of all potential miners of the deep seabed.26 The Canada-us ad referendum agreement differed from that contained in previous formulae on three important scores. First, the agreement was due to come into effect when commercial production from seabed operations had actually begun, rather than on a predetermined date, as was the case in the 1977 Informal Composite Negotiating Text. Second, the period during which seabed production would be allowed to supply the total amount of the cumulative growth in world nickel demand was reduced in the Canada-us agreement to five years, from the earlier Informal Composite Negotiating Text's figure of seven years. Finally, the calculation of the limit for nickel production from the Area was based on an annual, rather than a five-year, assessment. These three differences made the ad referendum agreement more acceptable to Canada than the conditions of the formula found in the Informal Composite Negotiating Text. The spring of 1979 marked the high point in Canada's struggle to obtain a production ceiling. At that point, the Canada-us agreement had been incorporated into the negotiating text, thereby taking on a degree of legitimacy. Its inclusion implied that it was a compromise position for which there was a certain amount of support. But the sense of triumph was short-lived. The fact that the Canada-United States formula was ad referendum meant that it needed the approval of the governments of both countries before it could become official. This stipulation posed a serious stumbling block in as much as the American government refused to agree to the formula on the grounds that it placed too many restrictions on deep seabed miners. The Canada-United States proposal encountered further problems at the Conference. Although it had the support of most of the land-based producers and the Group of 77, the industrialized countries were not satisfied and proposed seven amendments. The major source of this dissatisfaction was the figure used to apportion future market shares between land-based production and deep seabed mining. According to the major consuming states, the ceiling would severely limit the amount of tonnage the deep seabed miners could produce during periods of low growth in the international demand for nickel. The limitation, they insisted, would make it difficult for deep seabed miners to begin, let alone increase, their operations. Further concern was voiced over the number of mine sites specified in the Canada-United States Agreement. The inclusion of the Canada-us agreement in the 1979 Informal Composite Negotiating Text/Rev. i. prompted several of the major consuming states, including the United States, Japan, United Kingdom, Federal Republic of Germany, France, and Belgium, to propose the concept of a production floor that would set a minimal level (a floor) on the amount of

48 Canada and the International Seabed

market growth reserved for deep seabed miners. The "floor" proposed by the major consuming countries guaranteed seabed producers 3 percent of the annual growth rate in world demand for nickel. It was subsequently incorporated into the negotiating text at the ninth session in the spring of 1980. Canada objected to the 3 percent floor on the grounds that predictions based on actual rates of past consumption were much lower than those used in the floor formula.27 It argued that the combination of allowing deep seabed mining to supply all of the growth in the world consumption of nickel during a five-year build-up period, and 65 percent thereafter, and of setting the floor at an artificially high level, would force land-based producers to cut back production. Reductions in production would inevitably result in a loss of earnings and jobs. Canada went beyond that, however, arguing that no figures should be specified at that time because of the impossibility of making accurate predictions. Furthermore, Canada contended that, in the course of the previous ten years, the trend line of the growth in the demand for nickel had decreased. A number of countries - the Philippines, Ghana, Nigeria, the Ivory Coast, Zaire, and Zambia - voiced similar concerns. In an effort to appease the land-based producing countries, a "safeguard" clause was incorporated into the 1979 text. It was designed to offer some security to land-based producers during periods when the increase in world demand for nickel fell below the 3 percent guaranteed by the floor. Canadian delegates expressed doubts concerning the safeguard's ability to protect land-based producers during low-growth periods, as it was intended to do. They argued that tonnages, based on trend lines of growth rates in the past, would be allocated when a licence was granted. If consumption proved to be less than the projected growth rate, or if demand was lower one year than it had been the previous year, they contended, the 100 percent safeguard would not protect land-based producers from having to cut back production. By the spring of 1981, it was clear to the Canadian delegation that the negotiation of any substantial improvement to the production formula was impossible. The quest for negotiation, however, was not abandoned. Instead, attention was focused on co-operating with Australia, so that clauses that would prohibit states from subsidizing the deep seabed mining operations of their nationals, as well as from using unfair trading practices in the marketing of minerals from the Area, could be included in the negotiating text. Australia took the initiative in making the proposals, both to the Conference and other land-based producing countries. The Canadian delegation preferred to avoid the limelight, finding it easier to initiate proposals and engage in "corridor" negotiations while others served as the visible protagonists. For Canada, the purpose of the anti-subsidization and

49 Canada's Policies at UNCLOS III

fair market access clauses was to augment, not replace, the production ceiling. By 1981, not only were the prospects for improving the terms of the production formula greatly diminished, but tensions at the Conference were soaring. In June 1980, the United States and the Federal Republic of Germany had enacted interim deep seabed mining legislation.28 The legislation did not allow for deep seabed mining prior to 1988, by which time the Law of the Sea Convention was expected to be in force. As Elliot Richardson, ambassador at large and special representative of the president for the Law of the Sea Conference under the Carter administration, later explained, the legislation was passed to provide a significant bargaining chip in negotiations with the Group of 77 rather than to serve as an alternate regime to that of the ISA." In effect, if deep seabed mining was conducted unilaterally, the less developed countries would have little chance of benefiting from the resources of the Area, let alone of participating in their development. The us government hoped that the threat of further unilateral moves would make the Group of 77 more willing to compromise. The unilateral enactment of deep seabed mining legislation undermined the principle of the common heritage of mankind. In addition, it was contrary to the idea of working out agreements by consensus. As a result, it was not surprising that representatives from more than twenty states voiced objections to the moves.30 In the plenty debates on 28 July 1980, Beesley described the u.s. legislation as "unnecessary, undesirable, unjustifiable and untimely."31 A far graver threat confronted the Conference on 2 March 1981 when the Reagan administration announced that it had "serious problems"32 with the negotiating text and was, therefore, conducting a review of the entire set of law of the sea provisions. The administration was particularly concerned that the deep seabed mining provisions might be undermining the free enterprise system. Less than one week later, the acting head of the us delegation, George Aldrich, and the six senior members of the American delegation, most of whom had considerable experience in the UNCLOS m negotiations, were dismissed. The justification for such a move was that those who had been closely associated with the previous us policies on the law of the sea would not be able to conduct an objective review. Ironically, Reagan subsequently hired Leigh Ratiner, who had negotiated some of the original provisions, such as the parallel banking system, that the Reagan administration found unacceptable. The milieu goals apropos the securing of a universally acceptable treaty became particularly significant at the eleventh and final session of the Conference. This was the meeting at which the long-awaited results of the American review of the law of the sea text were presented, on 12 March 1982. Five of the six areas in which the United States advocated making amend-

50 Canada and the International Seabed ments pertained to deep seabed mining. These included access for private corporations, transfers of technology, production controls, and decisionmaking procedures for the Council of the ISA and the review conference. Acceptance of the us amendments would have radically altered the provisions to govern development of the Area, making them much more favourable to the potential, deep seabed, mining countries. At the same time, they would have left little room for the less financially and technologically advantaged states. The extensive and fundamental changes requested by the United States were unacceptable both in principle and in substance to the Group of 77, as well as to the Eastern European countries and the middle industrialized states. They all objected to the re-opening of issues after compromise positions had already been worked out. In addition, the proposals were seen as seriously undermining the concept of the common heritage of mankind. In spite of considerable efforts to influence its allies, the United States was not able to conclude a minitreaty with the other potential seabed mining countries. However, the United States, Federal Republic of Germany, the United Kingdom, and Japan tabled proposals for preparatory investment protection, so that any operator who claimed and explored a mine site before the law of the sea convention came into force would be guaranteed a title to it. In essence, these proposals served the same purpose as a minitreaty. The stalemate in Committee One posed a severe threat to Canada's goal of securing a Law of the Sea Convention. Its efforts at the eleventh session, therefore, were directed towards bridging the gap between the United States and its "like-minded" allies on one hand and the Group of 77 and the Eastern European countries on the other. On 11 March 1982, the Canadian delegation hosted a lunch for the Western, middle industrialized countries that had not enacted deep seabed mining legislation. At the meeting, in the hope of saving the Conference, Alan Beesley proposed that they form a group to work out a compromise acceptable to the Group of 77 and the United States. From this meeting, the "Group of 11" was born. Its membership subsequently increased to twelve and included Australia, Austria, Canada, Denmark, Finland, Iceland, Ireland, Netherlands, New Zealand, Norway, Sweden, and Switzerland. The proposals that this group worked out were aimed at bringing the United States back to the bargaining table without undermining the essence of the international regime. They focused on four major areas considered unacceptable by the United States: transfer of technology, membership on the Council of the ISA, the review conference, and the procedure for approving plans of work for deep seabed mining.33 The Conference president, Tommy Koh of Singapore, asked the Group of 12 to present their set of compromise proposals to the Conference.34 According to the Canadian delegation, the proposals "were generally well

51 Canada's Policies at UNCLOS III

received."35 Following discussion of the proposals, several changes were made to the law of the sea text. The Group of 77, however, refused to have amendments made to the transfer of technology provisions. It argued that these latter provisions were critical to the functioning of the Enterprise and to the participation of developing countries. As they stood, however, some of the provisions were actually unacceptable to the United States. The fact that the Group of 77 finally did agree to changes in some of these provisions was a significant concession. Among the agreed upon provisions was the guarantee that the United States would have a seat on the Council of the ISA, and that decisions in the review conference would require a threequarters rather than a two-thirds majority. Most importantly, the Group of 77 agreed to the provisions for preparatory investment protection, provisions which were to ensure that the first generation of deep seabed miners would be those with sufficient financial and technological resources to begin activities unilaterally. Still, the United States contended that the compromises did not go far enough to protect its interests. In fact, it was only on the last day of the session that the United States agreed to have the Group of 12's proposals included in the Law of the Sea Convention. By this point, the three-week period that had been allocated to informal negotiations was long past, and the Group of 77 was unwilling to have the negotiations re-opened. While it had been agreed that the Group of 12 was not to be used as a way of furthering the national interests of its members, the resulting proposals enhanced Canada's position. They narrowed the gap between the United States and its allies on one hand, and the Group of 77 on the other. The provisions regarding the transfer of technology, the review conference, and the terms and conditions for seabed mining operations were more amenable to Canadian possession interests than those in the negotiating text. In addition, Canada was one of the countries listed as a pioneer investor under the resolution for preparatory investment protection. To qualify for this protection, a developed country had to sign the Law of the Sea Convention by i January 1983. (Less developed countries had until i January 1985.) Inclusion on the list meant that once Canada had signed the convention, it would be able to get certification from the Preparatory Commission to allow Inco and Noranda to begin activities in the Area.36 In the end, the long cherished hope of adopting the Convention by consensus proved unattainable. On the morning of 30 April 1982, the us delegation requested a recorded vote. Canada and 129 other countries voted in favour of the Law of the Sea Convention.37 The United States and three other countries voted against the Convention. The USSR and sixteen other states abstained. Opposition to certain portions of part xi of the Convention, which dealt with activities in the Area, was the major reason for the negative votes and abstentions. While the United States opposed the Con-

52 Canada and the International Seabed

vention on the grounds that it discriminated against private enterprise, the USSR abstained in opposition to the preparatory investment protection provisions, which it considered were discriminatory against state entities wishing to mine the Area. The signing ceremony was held as scheduled on 10 December 1982, in Caracas. By that point 119 countries, including Canada, France, Japan, and the USSR, had signed the Law of the Sea Convention and hence were entitled to participate in the Preparatory Commission.38 On 15 March 1983, the Preparatory Commission began the work of translating the provisions in the Law of the Sea Convention into practice. When one examines the articles of the Convention in light of Canada's negotiating objectives, it becomes clear that the Canadian delegation achieved a great deal. Its success must be assessed not only in terms of the number of goals realized, but in terms of the extent to which the delegation was able to negotiate compromises, thereby achieving some if not all of its aims. The delegation was most successful in Committee Two. As Secretary of State for External Affairs Mark MacGuigan stated in 1980, "[t]he coastal states have obviously done well at the Conference - and none better than Canada... ,"39 In the convention articles, Canada benefited from a sizable extension to its continental shelf, the "Arctic exception", the acceptance of a i2-mile territorial sea, preferential rights over the resources in the 2oo-mile exclusive economic zone, and the right to enforce international regulations to safeguard against pollution within the 2oo-mile area. The articles on scientific research and the transfer of technology negotiated in Committee Three also met most of Canada's major concerns. The provisions for the transfer of technology laid out general principles for the promotion of transfers and the protection of the interests of owners of technology. While the provisions for protecting the marine environment were less stringent than Canada deemed necessary, they were the result of compromises by both the maritime and coastal state groups. For Canada, the outcome of the Committee One negotiations was less than satisfactory, in terms of both its milieu and its possession interests. In spite of the efforts of Canada and other countries, the Committee One negotiations failed to reconcile the conflicting positions of the Western industrialized bloc and the Group of 77. As a result, the Conference produced a treaty that received general but not universal acceptance. Without the support of the technologically advanced countries, the chances that the Enterprise could be viable, and the common heritage of mankind realized, were greatly reduced. In terms of its possession goals in Committee One, Canada had some modest successes. Tempering any feeling of accomplishment, however, was the fact that several of the main consuming and potential seabed mining

53

Canada's Policies at UNCLOS III

states did not support the convention. Even if Canada had been able to have its original nickel production ceiling included in the text, the formula would have offered little protection for land-based producers, since several of the major, potential seabed mining countries did not accept the convention. Although the interests of the land-based producers were recognized in the convention, the provisions were not deemed to offer adequate safeguards for the Canadian nickel industry. The production ceiling in the Law of the Sea Convention was far less effective in safeguarding the interests of the land-based producers than either the Canadian formula or the Canada-us ad referendum formula. The clause to restrict unfair economic practices, however, did offer some protection for land-based producers. In essence, it made the seabed mining activities sponsored by the members of GATT subject to the GATT regulations. That meant that minerals from the Area were not to be given preferential treatment over imports from other sources. Disputes over unfair economic practices were likewise to be resolved according to the GATT procedures for dispute settlement. These provisions were not, however, as stringent as Canada had wanted. The major loophole in the provision was a failure specifically to prohibit minerals from the seabed, which were subsequently processed within the country's borders, being counted as domestic production. The latter was not covered by the GATT rules. In addition, the provisions only applied to members of GATT and, of course, only to countries that ratified the Law of the Sea Convention. Throughout UNCLOS m, the Canadian delegation worked to ensure a voice for Canada on the Council of the ISA. As the executive organ, the ISA Council was authorized to formulate specific policies to govern activities in the Area. Representation in its decision-making process was important to a country such as Canada, one that was both the world's largest exporter of nickel and a potential deep seabed miner. Here, as had so often been the case in the post-World-War-II era, the Canadian doctrine of functionalism was employed.40 According to the doctrine, representation in international organizations should be based on a country's stake in the issues being considered and its willingness to contribute to the work of the body. Hence, Canada should be represented on international bodies dealing with matters in which Canada could, with authority, claim to be actively involved. Membership on the ISA Council was a case in point. Prior to the summer of 1976, four Council seats were allocated to major seabed mining states; none, however, was reserved for the major land-based producing countries, whose economies could be hurt by unregulated deep seabed mining. As a result of Canada's proposal in the summer of 1976 and its subsequent lobbying activities, four of the thirty-six Council seats were reserved for land-based producers. Although it was generally assumed that the world's largest nickel producer would get an ISA Council seat, Canada would

54 Canada and the International Seabed have preferred to have had its membership guaranteed. Nonetheless, the inclusion of a category for the exporters of the minerals found in the manganese nodules greatly enhanced Canada's chances of getting such a seat. The voting structure for the ISA Council represented a compromise between the desire of the Group of 77 for majority rule and the industrialized countries' preference for a voting system weighted according to a state's contributions to the ISA. Under article 161, procedural matters would be decided by majority rule. Issues of substance were classified into three categories; such classifications would determine whether the issue required a two-thirds or three-quarters majority, or a consensus, in order to be accepted. On the question of decision-making procedures for the council, Canada was torn. On the one hand, like the other industrialized states, Canada recognized that weighted voting would best protect its interests. On the other hand, Canada was reluctant to take a strong stand on this issue, wanting to avoid alienating its allies in the Group of 77 which favoured majority rule. The tiered voting structure, therefore, while not ideal, was an acceptable compromise. The issue of preparatory investment protection only attained a high profile in the final two years of the Conference. To the United States and other potential seabed mining countries, however, it was of utmost importance. It meant that the private and state entities that had conducted exploratory activities before the Law of the Sea Convention came into force would be guaranteed titles to exploit the sites in which they had already invested. Although the Canadian delegation consistently sought to ensure that Canadian companies could engage in activities in the Area, it never pressed for preparatory investment protection. But once the Group of 77 conceded to such provisions, Canada successfully had its name added to the list of pioneer seabed mining states. As a result, once it had signed the convention, Canada could sponsor the deep seabed mining activities of Inco and Noranda. Canada would have preferred less stringent requirements apropos the transfer of technology to the Enterprise and less developed countries, as well as for the provision of financing for the Enterprise. Unfortunately, the North and South were polarized on both these issues. For the developing countries, the transfer of technology was a vital prerequisite to ensuring the viability of the Enterprise. For the developed states, however, it represented a threat - not only to their industries, but to the future development of technology. Canada's interests on this issue were contradictory. Its industries and commercial enterprises vehemently opposed mandatory transfers. Canada advocated voluntary codes for transfers at the United Nations Conference on Trade and Development (UNCTAD) and it wanted to keep its policies on the transfer of technology consistent. But, more importantly,

55 Canada's Policies at UNCLOS m

Canada was eager to avoid alienating its major supporters of the production ceiling, virtually all of which were developing countries, by voicing strong opposition to the transfer of technology provisions. Under the Law of the Sea Convention, states are required to make financial contributions to the ISA, to help the Enterprise in its attempts to borrow the capital necessary for its operations, and to guarantee almost all such loans. Canada's possession interests were undermined by state subsidies to the deep seabed mining operations of the Enterprise. That latter entity would be competing for world markets with the land-based producers and private seabed mining operators. Nevertheless, because Canada recognized the inherent need of the Enterprise to have sufficient financial resources to begin deep seabed mining, it was prepared to accept the concept of state contributions and loan guarantees. The provisions for the Preparatory Commission further polarized developed and developing countries. During the period between the signing of the convention and its entry into force, the commission was responsible for translating the terms of the convention into concrete rules, regulations, and procedures. These rules and procedures would then be referred to the ISA for approval. Canada agreed with the final provisions, dictating that membership on the Preparatory Commission should be restricted to states that had signed the Convention, but contended that observer status should be accorded to countries that had signed the Final Act of UNCLOS m. The Canadian delegation was pleased by the decision made at the last session of the Conference, one which appointed the commission to examine the problems that deep seabed mining posed for land-based producers. Even before the structure and regulations of the ISA were worked out, provisions for a review conference to assess the functioning of the ISA were discussed. Again a North-South split emerged. The questions were several. Would changes proposed by the review conference require the consent of all, or only the majority, of state participants? What assurance could entities that began deep seabed operations be given to ensure that the review conference would not alter the terms of their contracts? If the ISA was not adequately promoting the common heritage of mankind, how could the situation be rectified? The final provisions for the review conference provided some safeguards for deep seabed miners, while at the same time reassuring the developing countries that changes could be introduced if necessary, at a later point, to ensure that the common heritage of mankind principle was still made operational. It was agreed that the review conference was to be held fifteen years after the commencement of deep seabed mining. If, after a five-year review period, the conference was unable to agree on the future of the international regime to mine the Area, it would be granted an additional year in which to amend the system, based on the assent of a two-thirds majority. Once agreement had been reached, either

56 Canada and the International Seabed

through ratification or by the accepted voting procedure, the provisions would come into force and be binding on all state parties to the convention. Since Inco and Noranda were not assured long-term rights to engage in deep seabed mining operations, the provisions were not ideal from Canada's point of view. Nevertheless, they were an acceptable compromise. In conclusion, all the issues of crucial importance for Canada in Committee One also polarized the North and South, thus threatening the country's milieu goal of securing a universally acceptable treaty on the law of the sea. Moreover, Henry Kissinger's 1976 proposals, especially the concession to the Latin American copper producers, profoundly affected Canada's options at UNCLOS in. Canada's resulting decision to seek improvements in the terms of the production ceiling, and to give this goal priority over its other possession interests, made it necessary to retain the support of its less developed allies. As a consequence, Canada had to softpeddle several other objectives, particularly with regard to the transfer of technology, the financial terms of contracts, and the financing of the ISA. The following chapters explore how and why Canada arrived at this allocation of priorities.

CHAPTER FOUR

Federal Government Actors

Inasmuch as the federal cabinet ministers and bureaucrats were the most important actors in determining Canada's policies on deep seabed mining, this case can be said to be typical of Canadian foreign policy development. Cabinet ministers held the ultimate authority for the decisions taken, while members of the bureaucracy were the sources of most policy positions and were responsible for the implementation of the decisions. Although, in theory, there was a clear cut division of power and responsibility between the cabinet and the bureaucracy, in practice, civil servants played the lead role in formulating and implementing Canada's policies on deep seabed mining. Foreign policy, particularly when international negotiations are involved, is not well suited to the reasonably linear, input-through-output model that is frequently used to analyze domestic policy. For example, the bureaucracy may develop a position regarding Old Age Security policies. ("We recommend that pensions be distributed to all Canadians aged sixty-five and over, rather than on the basis of a means test.") Authority rests with the politicians. (Cabinet approves the recommendation for universality and secures its passage through the House of Commons.) The decision is then implemented by the bureaucracy. (Pensions are sent to all Canadians sixtyfive years and older). There we have it: a linear policy-making process. In practice, foreign policy-making contrasts markedly with the linear process just described. Positions on ideal outcomes are most often developed within the bureaucracy and subsequently presented to cabinet for approval. As we saw in chapter 3, the process of negotiating with other countries makes it very difficult, if not impossible, to stick rigidly to ideal objectives. Compromises are required even by the most powerful of countries. Policies therefore have to evolve as the negotiations progress. Eventually, as in our case, the negotiators have to go back to the ministers and explain: "We did our best and achieved this degree of success. Even though it falls short of our original objective, we cannot back out without demolishing the delicate

58 Canada and the International Seabed balance of compromises that have been negotiated in all other areas. Thus we recommend that you accept our position as it has evolved." The foreign policy-making process is rendered more complex by this ongoing need to refine and redefine positions in negotiation with other states. At UNCLOS m, the involvement of the various government decision makers varied considerably. Some participated throughout the negotiations, while others were involved only for limited periods. All had the same overall objectives: to promote and protect Canada's milieu and possession interests. They all considered an international agreement to be the best means of securing Canada's goals; hence, it was a shared milieu objective. Nevertheless, perceptions of the issues and problems varied considerably. The major source of conflict within the federal government (and there was a considerable amount, especially during the latter half of the Conference) revolved around the critical choices of tactics and priorities. Throughout the UNCLOS in negotiations, a few, critically placed individuals played significant roles in influencing the direction and nature of the policy-making process. Although personality was only one of the many factors coming into play, the abilities and willingness of certain individuals to promote particular policy options certainly affected the decision-making process. For example, the involvement of the Departments of Finance, as well as Industry, Trade and Commerce, and the Ministry of State for Science and Technology, during the latter 19708, was due largely to the fact that a few of their officers, particularly Nelson Guillemette and Victor Bradley, felt strongly about the deep seabed mining issues. As a result, they were willing to invest considerable effort in trying to influence Canada's policies in this area. The political astuteness of Alan Beesley, a foreign service officer in the Department of External Affairs who led the Canadian delegation throughout the Conference, was a significant factor in Canada's success in achieving many of its objectives at UNCLOS m. He went to meetings well prepared, argued his case forcefully, and had an excellent sense of "who to see when." His astuteness also helped to ensure the dominance of the Department of External Affairs in the Interdepartmental Committee on the Law of the Sea (iCLOs)1 and on the Canadian delegation. The discussion in this chapter, therefore, pays considerable attention to the roles of certain individuals. For the process of formulating Canada's policies on the law of the sea, it was the civil servants who served as the sources of the policy positions sent to cabinet for consideration. Once cabinet had approved the recommendations, members of ICLOS and the Canadian delegation were bound by their contents. THE

POLITICIANS

The cabinet's role in the formulation of Canada's policies on the law of the

59 Federal Government Actors

sea varied, both with time and the interests of the individual cabinet ministers. Four ministers attended the original Caracas session. Ministerial interest waned, however, as the Conference progressed, for many of the issues of concern to Canada had been resolved. This was particularly true of the questions under negotiations in Committee Two.2 The most important determinant of a minister's involvement was his or her portfolio. The most active ministers were the secretary of state for external affairs, the minister of energy, mines and resources and, from 1980 when the position was created, the minister of state for mines. The degree to which the individuals who held these portfolios were involved depended largely on the nature of their constituencies as well as their personal interests. Secretary of State for External Affairs Don Jamieson was an elected representative from Newfoundland. As a result, he was interested in the issues pertaining to the continental shelf and fisheries.3 Judy Erola, as both the minister of state for mines and a member of Parliament from Sudbury, was concerned about developments in Committee One which affected the health of the mining industry in the Sudbury Basin. Jean-Luc Pepin, who, as minister of the Department of Energy, Mines and Resources took a personal interest in the UNCLOS ra negotiations, was also very involved.4 Although the ministers of state for fisheries participated with members of ICLOS in drafting memoranda for cabinet on fisheries issues, cabinet ministers generally played little part in the formulation of Canada's policies on deep seabed mining.5 These policies were first drafted by the Legal Operations Division of the Department of External Affairs, then approved by ICLOS , and finally submitted to the Cabinet Committee on External Policy and Defence. Cabinet never made any major changes to these ICLOS recommendations.6 (See figure 4.) Cabinet's lack of involvement in the formulation of Canada's policies on deep seabed mining was due to several factors. In the first place, general policy guidelines had been agreed upon by cabinet in March 1971.7 Thereafter, it was a case of working out the specifics and negotiating the best possible treaty package. Second, the issues under negotiation were not high on the Canadian government's list of priorities, nor were they sufficiently sensitive, politically, to warrant substantial attention by a cabinet facing time restrictions. During the course of UNCLOS m, there were two periods of minority government and three federal elections.8 Consequently, considerable cabinet attention was devoted to obtaining and retaining political power. Cabinet had two major areas of focus during the latter 19705: national unity and economic recovery. In November 1976, the Parti Quebecois came to power in Quebec. The election of a political party that advocated the separation of Quebec from the rest of Canada posed a serious threat to the Trudeau government's goal of national unity. The economic recession in the second half of the 19708 was accompanied

Figure 4 Formulating Canada's Policies on Deep Seabed Mining: The Formal Process

61 Federal Government Actors

by inflation, low levels of economic growth, and high unemployment. These developments were of serious concern to the Canadian people, who demanded that their government take action to remedy the problems. The question of national unity and economic recovery were highly political. As a result, they were the focus of cabinet's attention in the latter 19708. In comparison the question of deep seabed mining had a relatively low priority. The law of the sea never became an election issue, nor was it the subject of party policy. There were no appreciable changes in Canada's policies at UNCLOS m when the Progressive Conservatives assumed office in 1979, for example, or when the Liberals regained power in 1980. All political parties generally agreed with the positions taken by the Canadian delegation in Committee One at UNCLOS m. Questions pertaining to developments in Committee One and to Canada's positions in this forum were raised, however, in the House of Commons from time time. But the object of these questions was more to obtain information and to encourage further efforts to safeguard the nickel-mining industries in Sudbury and Thompson, than to criticize or embarrass the government. Most of the major potential sources of political pressure outside the federal government supported Canada's stand in Committee One. For example, the only provinces that made representations on the deep seabed mining issues, Ontario and Manitoba, were in favour of continuing the efforts to secure an effective production ceiling in the Law of the Sea Convention. Members of municipal governments, such as the mayor of Sudbury, and representatives of the United Steelworkers of America viewed the production ceiling as essential to safeguarding the Canadian nickel industry. The nickel-mining communities represented large blocs of geographically concentrated voters, whose electoral support was necessary to retain parliamentary seats. Interest groups, such as the Canadian Business and Industry International Advisory Committee, which questioned this allocation of priorities, only became involved when the negotiations were nearing completion, when the positions of the Canadian delegation were firmly established. As a result, the only pressure that was applied during the actual establishment of the priorities favoured the nickel production ceiling. As will be discussed subsequently, this support was not entirely fortuitous. Third, the issues under negotiation in Committee One were very specific and technical, and they became more so as time progressed. Furthermore, the extremely complex computations involved in the calculation of the trend lines for the production ceilings were the subject of great debates, even among the experts. Consequently, the relative merits of alternate formulae could not be assessed without considerable time being devoted to their study. In general, cabinet ministers had neither the time nor the expertise to evaluate the various proposals in detail.

62 Canada and the International Seabed Fourth, cabinet, as a whole, was kept less well informed of developments at UNCLOS m as the Conference progressed. Prior to the first substantive session in June 1974, a memorandum was sent to cabinet as a whole, recommending certain Canadian positions. Its arrival in cabinet, however, coincided with the 1974 election campaign. As a result, several key ministers, including the prime minister, were not present when it was approved.9 Thereafter, and throughout the latter 19705, memoranda outlining developments at UNCLOS in, provisions in the negotiating texts as they related to Canada's interest, and Canadian positions were sent to select ministers. Although there was no fixed list of "select ministers," the secretary of state for external affairs was always included and the minister of energy, mines and resources was usually found there as well. From time to time, these ministers sent memoranda to cabinet to keep their colleagues informed of developments. For example, the secretary of state for external affairs and the minister of energy, mines and resources sent a memorandum to cabinet in July 1976, after the production ceiling had been introduced into the Revised Single Negotiating Text. However, only in 1980, were the formal cabinet documents once again submitted.10 For the remainder of the Conference, one memorandum on the law of the sea was sent to cabinet each year.11 The fact that cabinet did not insist on being kept informed of developments at the Conference - once the general position had been defined in March 1971 - or on taking an active role in the ongoing process of formulating Canada's policies at the negotiations, indicated the relatively low priority awarded these Committee One negotiations. It also indicated the faith the cabinet had in ICLOS and the Canadian delegation. While cabinet's participation in the formulation of policies on deep seabed mining might have been small, certain ministers were actively involved. Secretaries of state for external affairs attended portions of most of the UNCLOS in sessions, especially during the first half of the Conference. From time to time, they also made statements in the House of Commons regarding developments at the Conference. They made several representations in support of Canada's positions on the law of the sea at meetings with senior officials from other countries as well. In 1976, Secretary of State for External Affairs Allan MacEachen twice raised the matter of production policies with us Secretary of State Henry Kissinger - first at the May UNCTAD rv meeting in Nairobi and, again, at the September UNCTAD meeting in Ottawa. As will be discussed later in the chapter, ministerial support was critical in determining the bargaining strengths and influence of civil servants. As is the norm in foreign policy making, Parliament did not formulate Canada's policies on deep seabed mining. In fact, the deep seabed mining issues were never a significant source of friction in the House of Commons. From time to time, the secretary of state for external affairs and other ministers reported to Parliament on developments at UNCLOS in. For

63 Federal Government Actors

example, on 19 June 1975, following the second session, both the secretary of state for external affairs and the minister of state for fisheries addressed the House of Commons on the law of the sea. The speeches and the ensuing debates focused onfisheriesquestions12 - a focus that reflected the government's priorities at UNCLOS m at that time. On occasions, civil servants also reported to Parliament. At times, too, several members of Parliament (MPS) requested information regarding Committee One negotiations and the steps being taken to protect Canadian nickel miners. The most active MP in this regard was John Rodriguez (Nickel Belt, NDP). In addition to raising the subject during question period, Rodriguez wrote several letters to the secretary of state for external affairs, explaining the implications of deep seabed mining for Canadian nickel-mining communities and advocating the negotiation of an effective production ceiling.13 Questions were also raised by Alexandre Cyr (Gaspe, Liberal) on 24 October 1979 and by Pauline Jewett (New Westminster-Coquitlam, NDP) on 22 May 1981. On 2 December 1979, Keith Penner (Thunder Bay, Liberal) presented a private member's bill in support of the concept of the common heritage of mankind. The law of the sea issues were also discussed in the Standing Committee on External Affairs and National Defence. The committee held hearings in 1974 to gather the views of groups with interests in the law of the sea. These hearings enabled MPS from all political parties to become informed about the law of the sea issues and about the related concerns of various groups of Canadians. A second set of hearings was postponed when the House of Commons was prorogued. The Standing Committee on External Affairs and National Defence also held regular sessions on the law of the sea throughout the Conference. The secretary of state for external affairs addressed this Committee on 6 November 1973, prior to the first session of UNCLOS in . Civil servants involved with the law of the sea negotiations testified on several occasions as well, and Beesley answered questions during the committee's meeting of 28 May 1981. Appearances before the committee provided members of Parliament with the opportunity to hear about developments relevant to the law of the sea. Although these sessions were not considered to be sources of new insights for the cabinet ministers and civil servants who attended, they were taken seriously by all participants.14 The result was a well-informed group of politicians who generally supported Canada's policies on the law of the sea. It was this constant flow of information that helped to ensure that the deep seabed mining issues were never the subject of partisan politics.15 THE CIVIL SERVANTS

While several cabinet ministers and some MPS were involved in the Committee One issues, the general direction and specific details of Canada's policies originated in the civil service. (See figure 4 for a general schema of

64 Canada and the International Seabed the formal policy development process.) The key civil servants came from the Departments of External Affairs and Energy, Mines and Resources. The Department of External Affairs (DEA), responsible for the overall coordination of Canada's policies on the law of the sea, was the department that attached the greatest importance and allocated the largest number of officers to the law of the sea negotiations. Officers from the Department of Energy, Mines and Resources (DEMR) were also very active in assessing Canada's priorities and policies on the Committee One issues, especially those pertaining to seabed production. Officers from the Department of Finance (DOF) played significant roles, as well, on the Committee One issues. Their interests predictably focused on the financial implications of the law of the sea provisions. Most of their efforts in this respect thus took place during the second half of the Conference. In addition, civil servants from the Department of Industry, Trade and Commerce (DITC), as well as the Ministry of State for Science and Technology (MOSST), became involved in the formulation of Canada's policies on deep seabed mining at various times throughout the law of the sea negotiations. But for the ministers and senior civil servants of these departments, other issues had to take precedence over the UNCLOS m negotiations. As a result, relatively few of their officers were involved, and those who were, did not receive any significant support from the more senior ranks in their respective departments. Before discussing the participation of these five departments, it is important to note that the views of each were not monolithic. Although, in general, the views of the senior officers from the DEA dominated, their views were frequently opposed by representatives of other departments and, in some cases, were not even shared by the more junior officers in their own department. But as is generally the case with the civil service, the oath of secrecy constrained the more junior officers from publicly criticizing the positions of their superiors. Concern for future job promotions was a further reason for restraint. The DEA played the lead role in the events and negotiations surrounding the law of the sea. It was legally and operationally responsible for conducting Canada's foreign policy, negotiating international agreements, and representing Canada at international conferences. Foreign service officers, with their expertise in diplomacy and international negotiations, also played a major role. The head of the Canadian delegation was always the secretary of state for external affairs. The deputy head16 of the Canadian delegation, Alan Beesley, was a senior diplomat in the DEA and ICLOS was chaired by senior officers of the same department. In spite of challenges by the Departments of Justice and the Environment in the early 19708, the DEA was able to maintain its leadership role during the Seabed Committee period throughout UNCLOS in. The DEA'S involvement in the law of the sea was spearheaded by its

65 Federal Government Actors

lawyers. These were the individuals who were the most active and influential in shaping Canada's policies on the law of the sea. They provided all the major initiatives in this area, with the exception of the loo-mile jurisdictional claim over Arctic waters for purposes of environmental protection, which originated in the Prime Minister's Office.17 The size and the status of the DEA'S legal division grew during the latter 19605 and early 19705. In the late 19608, the Legal Operations Division handled questions pertaining to international fisheries, Canadian sovereignty and jurisdictional rights in the Arctic, privileges and immunities, international environmental law, and the law of the sea. The Division expanded as the work associated with each of these subject areas grew. By the early 19705, as part of a general departmental reorganization and expansion, a Bureau of Legal Affairs was established with two separate sections: the Legal Advisory Division, and the Legal Operations Division. Canada's policies at UNCLOS m fell within the mandate of the latter. Since the Legal Operations Division had expertise in the international legal arena, it was logical that that group should handle the UNCLOS m negotiations. Prior to the commencement of UNCLOS m, the Legal Operations Division had established itself as an efficient and capable co-ordinator in a key area of concern to the Canadian government. By the late 19605, the provincial governments had become increasingly interested in external developments that were seen as having relevance to the well-being of their citizens. Because the Legal Operations Division had also carried out the liaison work with the provinces on the negotiating and signing of international agreements, it therefore had established contacts with the provincial governments at a time when Prime Minister Trudeau and his cabinet were according a higher priority to federal-provincial relations. The position of the Legal Operations Division was strong enough by the late 19605 to permit it to resist attempts by the Department of Justice to subsume its functions. Following the implementation of the Glassco Commission's Report in 1966, all the legal divisions in the other federal departments were incorporated into the Department of Justice. The DBA was the only department that managed to withstand the trend. The debate as to whether the Legal Operations Division or the Department of Justice should be providing legal counsel to the Crown on matters of international law continued into 1971. The Legal Operations Division emerged as the leader in this field, partly because of its expertise in international affairs and international law, and partly becase Beesley was able to outmanoeuvre officers from the Department of Justice.18 As a result, the Bureau of Legal Affairs had a virtual monopoly on providing international legal advice to the government as a whole. Its lawyers were seconded to other departments if the latter needed an expert in this field. In the second half of the 19705, there was a decline in the importance of the Bureau of Legal Affairs within the Department. The major gains had

66 Canada and the International Seabed already been made at UNCLOS m , and the progress in Committee One was very slow. In addition, the government was devoting greater attention to economic matters, such as the GATT negotiations. Moreover, the bureau's position on centre stage was assumed by the economic policy divisions. This reallocation of influence was reflected in the recommendations of the "mirror" committee in 1979. According to the latter, the Bureau of Legal Affairs had to report to the assistant deputy minister of the Subcommittee on Economic Relations. The Bureau of Legal Affairs would have preferred, however, to report to the assistant deputy minister of the Subcommittee on Political Relations. This development did not alter the Bureau's influence in ICLOS. In 1970, the DEA lawyers comprised an impressive slate of foreign service officers, including Alan Beesley, Leonard Legault, and Paul Lapointe. While Lapointe was very active in activities pertaining to Committee Two and in determining the rules of procedure for the Conference, Beesley and Legault assumed major roles in this story. Of all the DEA lawyers, and in fact of all the Canadians involved in the law of the sea negotiations, the most influential and prominent was Beesley. Described by a colleague as "one of the Department's wunderkinds," Beesley was ambitious, confident in his own opinions, and capable of being either exceedingly charming or exceedingly tough. Today Beesley is best known for his work on UNCLOS m. It was a real high point in his career. The success of the Conference and the attainment of as many Canadian goals as possible were, for Beesley, not merely objectives related to his job as a foreign service officer in the DEA. True, their attainment was important for his professional reputation, for the whole law of the sea issue had a high profile in the 19708 and Beesley's pivotal role in the decision-making process in Ottawa and at UNCLOS in enhanced his stature both at home and abroad. But his involvement went beyond the dictates of his position or even of career ambition. Beesley firmly believed in what he was doing; he truly thought that UNCLOS m was the best forum for creating an equitable and stable body of law to govern the oceans, and that Canada's choice of policies in the law of the sea negotiations was the most propitious for promoting and protecting the country's key interests. Confidence in one's course of action enables one to argue with great conviction and energy. It may also, however, make one less receptive to dissenting opinions. On the law of the sea issues, Beesley was the Canadian who occupied centre stage. Legault's main contribution to the development of Canada's deep seabed mining policies was made in Ottawa, where he co-ordinated the work of ICLOS, wrote almost all the memoranda sent to cabinet ministers, and helped facilitate the work of the Canadian delegation. Described as level-headed, Legault was well respected by his colleagues for his capabilities both in his profession and in the fostering of good interpersonal relations.

6j

Federal Government Actors

His ability to smooth feathers ruffled by his more outspoken colleagues served to enhance relations within the DBA as well as between the DBA lawyers and officers from other departments. As time went on, the positions that Legault and Lapointe had held in the process of formulating Canada's policies on the law of the sea were filled by younger and less senior officers. This was partly due to changes in the way in which the DEA allocated its personnel; it was also the result of the law of the sea's lower priority.19 Although the relative importance of the Legal Operations Division within the DEA may have declined in the latter 19705, it still played the lead role with regard to the law of the sea issues throughout UNCLOS in . Canada's choice of policies, priorities, and tactics, as discussed in chapter 3, were largely those of the Legal Operations Division. A few other divisions within the DEA also became involved with the Committee One issues, although their roles were fairly minor.20 The implications of the law of the sea provisions for Canadian international trade and commerce were the main concern of the economic divisions, for instance. The officers in these divisions tended to share perceptions similar to those held by officers in the DOF and DITC; that is, all strongly supported the free market system. But because of numerous organizational changes within the DEA, there was no continuity in the structure of the economic bureau and divisions.21 As a result, it was difficult to trace trends in the developments of their policies.22 Officers from the economic divisions played a minor role in the formulation of Canada's policies on Committee One issues. For example, even though the Economic Bureau was a member of ICLOS, it did not send representatives on a regular basis. In the spring of 1974, the Commercial Policy Division sent several letters to the Legal Operations Division, indicating that the former did not fully share the views of the latter on the international seabed regime. The Commercial Policy Division requested that the Legal Operations Division make greater efforts to keep it informed of developments in this area and to consult with it on policy directions. In 1976 several letters dealing with the production ceiling in the Revised Single Negotiating Text and the possibility of discussions on deep seabed mining being held at the OECD meeting, were sent. In 1980, the director of the Commodity and Energy Policy Division wrote the Bureau of Legal Affairs, urging it to cease its efforts to get a production ceiling. The economic divisions, which favoured the use of free market forces, never supported the idea of quantitative restrictions. A senior lawyer in the DEA later attributed the lack of ongoing involvement by the economic divisions to two factors.23 Initially, the actual scope of the law of the sea negotiations was not perceived. By the time the relevance of the issues under negotiation at UNCLOS m to the economic divi-

68 Canada and the International Seabed sions' mandates was realized, the Legal Operations Division was firmly in command. In effect, it had established itself as the key actor within the DBA on the law of the sea negotiations, and it had the support of the secretary of state for external affairs. At that point, any influence that dissenting voices might have had was clearly very small. In 1977, the Bureau of United States Affairs was established. It became involved with the law of the sea negotiations only on the several occasions when they impinged on matters pertaining to relations between Canada and the United States. Because the production ceiling issue involved relations between the two countries, the Legal Operations Division at times consulted the us Bureau on this matter. Although the Federal-Provincial Coordination Division initially took the initiative in contacting the provinces about matters pertaining to the law of the sea, its function was taken over fairly quickly by the Legal Operations Division, which thereafter assumed full responsibility for such contacts. The Federal-Provincial Coordination Division did, however, contact the Bureau of Legal Affairs from time to time, in order to reiterate the importance of the nickel production ceiling to Ontario and Manitoba. The Bureau of Defence and Arms Control had been involved, very briefly, prior to the drafting of the recommendation to cabinet in 1974. Yet because the Area had been reserved for peaceful purposes, the issues under negotiation did not fall within the mandate of this bureau. In addition, the Department of National Defence was monitoring the developments at the Conference; it was therefore considered unnecessary for the Bureau of Defence and Arms Control to devote resources to this area. Besides the DBA, only one department sent representatives to the entire law of the sea negotiations - from the inaugral meeting of the Seabed Committee through to the closing session of UNCLOS ra. In 1968, Don Crosby, director-general of the Resource Management and Conservation Branch, became Canada's chief representative on the Technical and Economic Subcommittee of the Seabed Committee. This subcommittee dealt with the continental shelf and offshore resources. Crosby was a logical choice for the job for his branch handled matters pertaining to non-living offshore resources, as well as to mineral resources on Crown lands within Canada. Crosby himself had expertise in geology, mining (especially as it pertained to the mineral resources of the continental shelf), and mathematics. Reputed to be assiduous, forceful, and brilliant in his field, Crosby was actively involved in the continental shelf negotiations of Committee Two, as well as the deep seabed mining discussions of Committee One. For Crosby, the highest priority throughout the law of the sea negotiations was to ensure that any definition of the continental shelf would include the outer edge of the continental margin.24 Once UNCLOS m began, the Technical and Economic Subcommittee of the Seabed Committee was transformed into Committee One. Given

69 Federal Government Actors

Crosby's expertise and experience, it was logical that he be asked to serve as Canada's principal representative on Committee One. When the production ceiling was introduced to the Conference in 1976, Crosby was the only member of the Canadian delegation with sufficient technical knowledge to draft a counterproposal. This he did on instructions from Beesley, deputy head of the delegation. Upon his return to Ottawa in May 1976, Crosby put together the "Nickel Team" to provide additional expertise for the very technical and complex issues being raised in Committee One. The team comprised three officers from the DEMR-David Pasho, William (Bill) Jackson and Martin Gauvin - as well as a civil servant from the Ontario Ministry of Natural Resources - Tom Mohide. Mohide's involvement is discussed more fully in Chapter 5. Pasho, a marine geologist, was already working under Crosby on matters relating to the continental shelf. Bright, committed, and enterprising, Pasho's resourcefulness was exemplified by his negotiation of the final, technical details of the ad referendum agreement on his ski weekend at Zermatt. Before joining DEMR in 1975, Pasho had worked for the Lockheed Joint Venture and had participated in the exploration for offshore minerals, including manganese nodules. Jackson and Gauvin, who both worked for the Mineral Policy Sector, had not had direct involvement in ICLOS or UNCLOS m until this point. Although their sector focused on hard minerals within Canada, both men had expertise in the land-based mining industry. In addition, Jackson understood international metal markets and Gauvin was very knowledgeable about production statistics. In summary, whereas Jackson and Gauvin were very effective behind the scenes, Pasho was very active in selling Canada's proposals at the Conference. Indeed both Jackson and Gauvin tended to avoid the limelight, whether at UNCLOS m or in Ottawa. Until 1979, Crosby attended the Conference sessions regularly; thereafter he attended the sessions for considerably briefer periods. The main reason for this change was the Liberal government's establishment of a National Energy Policy in 1980, and the simultaneous emergence of the Canada Oil and Gas Lands Administration, set up under Crosby's directorship to make the policy operational. As well, by 1979, with the Conference's acceptance of articles 76 and 82 (which defined the continental shelf in such a way as to include significant amounts of the very extensive continental margin off Canada's east coast), Crosby's highest priority had been realized. As a result, the responsibility for working out and negotiating the formulae and representing the interests of the DEMR could be delegated to more junior officers. In 1979, in order to be in a better position to assess the production formula and the possible benefits that deep seabed mining could have for Canada, the DEMR decided to study the economic viability of exploiting manganese nodules. The project also examined the possibility of process-

70 Canada and the International Seabed ing manganese nodules on Canada's west coast. Because the timing of the study coincided with a study on smelting being conducted by the government of British Columbia, the two governments co-operated. The study was completed in 1979 and the final report, published in I983,25 concluded that sites for processing manganese nodules existed on Canada's west coast. Unfortunately, by the time the study was completed, all the consortia had put their plans to mine the deep seabed on hold and there was no reason to explore the concept of processing sites any further. Although the DOF was not as involved in the UNCLOS m negotiations as the DEA and DEMR, it did play an important role, especially with regard to the issues under discussion in Committees One and Two. Its influence, however, was never as great as its representatives in ICLOS and on the Canadian delegation would have liked. This was partly because UNCLOS m was not a high priority for the department as a whole, but partly, too, because some of the senior officers of the Legal Operations Division had outmanoeuvred the officers from the DOF.26 During the Seabed Committee period and the early years of the Conference, the DOF, for several reasons, had little involvement with the law of the sea negotiations, in general, and the deep seabed mining issues, in particular.27 The first and most important factor was that the DOF had far more pressing matters to consider. The DOF'S macro economic focus predisposed it to give its greatest attention to the broad issues affecting the economic well-being of the country. In 1975, top priority was given to the serious deficit facing the Canadian government. Relative to this problem, the financial aspects of deep seabed mining were a minor consideration. Second, the DOF, during the Seabed Committee period, viewed the law of the sea negotiations as a diplomatic exercise with little relevance to its own areas of interest. By the time the DOF became involved with the deep seabed mining issues, the general direction of Canada's policies was firmly established. Third, deep seabed mining was not perceived as a threat to the Canadian mining industry. Any commercial exploitation of the deep seabed seemed a long way off and Canada's resources were plentiful and competitive. In addition, Canada was viewed as a politically stable country, a reliable source of supply. There was, therefore, no political or economic justification for the buyers of Canadian nickel to seek alternate sources. Fourth, Canada's interests as a developed country were thought to be protected by the other Western industrialized states. The latter were actively participating at UNCLOS in to safeguard similar interests. Finally, the DOF had a large area of responsibility and a small staff relative to some of the major federal departments, such as the DEMR and DEA. As a result, its thinly spread personnel were preoccupied with the higher priority issues. For example, throughout the period of UNCLOS activity, GATT

7i

Federal Government Actors

was the international forum of greatest importance to the DOF. In total, the DOF allocated between five and ten officers to international trade issues.28 Moreover, whereas the assistant deputy minister of finance attended the GATT negotiations, much more junior representatives were sent to UNCLOS in. These factors explain why the DOF did not become involved with Committee One negotiations during the early years of the Conference and, partly as a consequence, why its bargaining position within ICLOS was not stronger. And once its officers did become involved, that position was even further undermined, this time because these officers tended to focus on all areas of concern rather than a few key ones. It was not until 1975, then, when the issue of revenue-sharing was being discussed in Committee Two, that the DOF began to take a greater interest in the UNCLOS m negotiations. In order to gain the international community's recognition that Canada's continental shelf extended beyond the 200-mile limit off the east coast, Canada was expected to share some of its revenues derived from the exploitation of resources beyond that point. Although the DOF expressed concern that the percentage of the pay-out would be too high, the issue was not accorded a high priority. The upshot was that, prior to 1977, the DOF sent only one representative to attend a few days of one Conference session.29 It was only in 1977 that the DOF began to appoint representatives to the Canadian delegation on a regular basis. Then, two officers, Nelson Guillemette and Armand Blum, were sent to UNCLOS m to represent their department's interests, particularly those pertaining to revenue-sharing. Of the two, only Guillemette became involved with the deep seabed mining issues. Concern for the issues under negotiation was not the only reason for sending Guillemette. It was thought that UNCLOS m would be a good forum for him to gain experience in conference diplomacy, that is, before attending the more important (to the DOF) international meetings.30 Once Guillemette attended UNCLOS m, however, he realized that many of the issues under negotiation were of importance to his department. Guillemette, very knowledgeable in corporate finance and taxation, was determined and confident. He was not afraid to fight for what he believed was the correct policy, even when the odds were stacked against him. He was the first of the dissenting coalition to become seriously involved in the deep seabed mining negotiations and, in the beginning, was a lone voice querying Canada's priorities. Yet, according to one DBA lawyer, Guillemette had the remarkable ability of rebounding, even after his position had been castigated by Beesley in delegation and interdepartmental meetings. In general terms, the DOF was concerned with the economic aspects of the law of the sea provisions, as well as their implications for Canada's domestic and international interests. The latter included the effects that the provisions would have domestically on Canadian industry and inter-

72 Canada and the International Seabed

nationally on foreign trade and world trade obligations. The DOF sought to maximize the economic benefits and to minimize the costs that would stem from the law of the sea treaty.31 It also sought to ensure that the provisions negotiated at UNCLOS m did not set any undesirable precedents that could be cited in negotiations in other fora. Within the DOF, the International Economic Relations Division was responsible for the law of the sea issues. The latter fell within the division's mandate to handle international relations with all countries, except the United States and Western Europe.32 The International Economic Relations Division did consult with other divisions within the department when issues arose that were of particular importance to them or that required their expertise. The Department of Industry, Trade and Commerce's interest in the law of the sea negotiations began in the days when the Seabed Committee was meeting. Its primary concern throughout the law of the sea negotiations was the effect on Canadian industry and trade of the treaty provisions. The department had a long association with international negotiations on trade and commodity agreements and had been active in the GATT, OECD, and UNCTAD negotiations. In contrast, UNCLOS in was never sufficiently important for the DITC to appoint a representative to the Canadian delegation. Two divisions within the DITC were involved with the Committee One issues: the Industrial Resources Division, and the Ocean Industries Division. The former was part of the Office of General Relations, responsible for commodity agreements, general GATT negotiations, and issues of international trade that were not country specific. The Ocean Industries Division, later to become part of the Marine Systems Division, was the industry sector unit and concerned with Canadian industries involved in ocean activities. The Canadian fishing industry was not included in the division's mandate, however, since its interests were handled by a separate department. While officers in both the Industrial Resources Division and the Ocean Industries Division shared similar outlooks, representatives from the former tended to focus on production policies, while those of the latter were most active on issues pertaining to free trade. The DITC'S first concern regarding the common heritage of mankind was the possible effect it would have on the rights of the coastal states to exploit the resources of the continental shelf. At UNCLOS m, the department's initial foci of interest were offshore oil and gas resources. In terms of deep seabed mining, the DITC was primarily concerned with the potential industrial spin-offs for Canada. Because Canada's mineral resources were finite, the department decided to conduct a study to assess the implications of deep seabed mining for Canadian industries, particularly those pertaining to ocean activites. It concluded that the only way in which Canada could benefit from deep seabed mining would be if its companies were able to par-

73 Federal Government Actors

ticipate in the exploitation. The DITC accordingly offered to pay $5 million of Noranda's $io-million share of the Kennecott Joint Venture's budget for developing technology to mine the Area.33 This money was to be given on the condition that Canada would share in the technology to be developed. The idea was vetoed by the Kennecott partners, however, which wanted to retain control of the technology. To the DITC this response indicated that Canada's participation in the development of the resources of the deep seabed mining would be small, and hence of little future benefit to Canada.34 Officers from the Ocean Industries Division were the first DITC members to become involved with UNCLOS m . Their involvement stemmed initially from their worry regarding Canada's offshore development rights but, once involved, they soon discovered that negotiations in other areas of the law of the sea were also relevant to their department. The Office of General Relations became involved with the Committee One issues in 1976, when its general director, Percy Eastham, read a telex containing Canada's counter proposal to the production ceiling formula in the Revised Single Negotiating Text.35 At a subsequent meeting with Beesley and Crosby, Eastham criticized the use of the quantitative restrictions and pointed out that Canada usually opposed commodity agreements that put restrictions on production.36 When Beesley and Crosby were unresponsive to his concerns, Eastham decided to end his involvement with the whole question. Thereafter, the matter was delegated to Dugal Stewart, a trade relations officer in the Industrial Resources Division. For several reasons, the DITC was never represented on the Canadian delegation.37 The department had more important priorities. The delegation itself was wedded to the production ceiling and it had a constituency in Canada that supported this stand. As a result, the prospects for altering the direction of policy seemed remote. Senior officers in the Office of General Trade Relations, including the director general, thought that the United States would never agree to the provisions governing activities in the Area. Without u.s. involvement, deep seabed mining was deemed to be nonviable. It thus did not seem worthwhile to have a representative on the Canadian delegation. Its officers, however, were involved in the ICLOS discussions. The MOSST was involved with the UNCLOS m issues from the inception of the Conference. Its interests during the early years focused on the Committee Three discussions regarding marine scientific research and the transfer of technology. The Committee One discussions during this period were not, however, considered to be very important, nor of particular relevance to MossT.38 In fact, the issues under negotiation in Committee One only began to be viewed as "important" in the late 19708. The role played by MOSST on the law of the sea issues was greatly influenced by the individuals involved. Initially, interest was stimulated by the

74 Canada and the International Seabed fact that the director of legal services for the ministry, Melville Goldberg, considered the negotiations to be important.39 Goldberg's interest in UNCLOS in focused on marine scientific research. In 1973 and 1974, Goldberg attended the ICLOS meetings and sent several memoranda on marine scientific research to, Edward Lee, the associate director general of the Bureau of Legal Affairs. In 1974, Victor Bradley became involved with the transfer of technology as it pertained to marine scientific research. He was responsible for handling the international parameters of multilateral negotiations, especially as they related to the transfer of technology. When Bradley was posted away from Ottawa in February 1977, he was not replaced and the minister chose to focus on other issues. As a result, developments in the UNCLOS m setting were ignored by MOSST until Bradley returned in October 1979.9. The MOSST'S involvement on the Committee One issues focused entirely on the transfer of technology. At UNCTAD, Bradley had worked to ensure that the voluntary codes of conduct were drafted in universal rather than North-South terms. When he returned to Ottawa, he found that the matter was been handled very differently at UNCLOS ra and that Guillemette (DOF), alone, was opposing Canada's position on the transfer of technology. Within six months, Bradley was spearheading the opposition to Canada's stand on technology transfers at UNCLOS ra . As a result, Guillemette was free to focus on other areas of concern, although he supported Bradley's work. Bradley argued that Canada was not only a land-based producer and a potential deep seabed miner, but also a producer of technology.40 Canada, he stated, was strong in the areas of ocean technology and mining technology. Furthermore, Canada was a middle economic power that was both a substantial net importer of technology and a significant developer and exporter of technology. He argued, therefore, that Canada had a stake in getting a fair price for its technology and in encouraging the development of technology. Bradley participate4 in ICLOS where, as one colleague noted, "he was always in Beesley's hair." Bradley was committed to his ministry's position and argued tenaciously in its favour. In interdepartmental debates, Bradley was the "hard cop." The counterbalancing role of "soft cop" was played by James Mullin, Bradley's director. Mullin chaired Canada's Interdepartmental Working Group on the Transfer of Technology and headed the Canadian delegation to the United Nations Conference on the International Code of Conduct on the Transfer of Technology. Canada's policies on technology transfers, argued Mullin and Bradley, contradicted Canada's stand in the UNCTAD negotiations. The bargaining power of the MOSST representatives was limited by the lack of support they received from more senior levels in the Ministry. The assistant deputy minister of MOSST, Bev Dewar, although sympathetic to the con-

75 Federal Government Actors

cerns expressed by Mullin and Bradley, did not regard the law of the sea negotiations as a priority. Neither were developments at UNCLOS m of any appreciable interest to his superior, Denis Hudon, the deputy minister of MOSST. In fact, apart from sending Goldberg as representative to the first session of UNCLOS m, MOSST was never represented on the Canadian delegation. THE DEPARTMENTAL MOSAIC

Officers from all five departments sought to further Canada's milieu and possession interests. Views varied, however, not only with regard to the actual constitution of the milieu and possession goals but with regard to the relative importance of each objective. There were also divergent opinions as to the choice of tactics to be used to further Canadian interests. The different perceptions of the issues and the diverse approaches to the negotiating process made it very difficult for members of ICLOS to agree on policy recommendations. Only the DEA lawyers had general milieu goals. These were to strengthen the United Nations and to promote the orderly and peaceful development of international law through negotiation. The DEA lawyers' highest priority was the specific milieu objective of facilitating negotiations in Committee One so that agreement could be reached on a universally acceptable treaty. Officers from the DOF, DITC and MOSST also had specific milieu goals. They were concerned, for example, about the precedents that the law of the sea provisions might set for negotiations in other international fora of specific interest to them. The transfer of technology provisions were of greatest concern. For the DOF officers, the provisions for revenue-sharing and the financial obligations placed on developed countries were undesirable precedents. Representatives from the DITC expressed similar concerns about the clauses concerning commodity agreements. Representatives of all five departments agreed that Canada's interests would best be served by an international agreement, rather than by multilateral, bilateral, or unilateral action. Opinions varied as to the price that Canada should be willing to pay to achieve an international treaty. There was general agreement that the resources of the deep seabed should be developed in a peaceful, equitable fashion. Interpretations of the word "equitable" varied, however. To the DEA lawyers, equity involved working towards the creation of a new international economic order, one in which the world's resources would be more fairly distributed among all peoples. Because officers in the other departments, particularly the DOF, DITC and MOSST, tended to see UNCLOS m as a forum in which the developing countries dominated, they tried to ensure that the interests of the industrialized

76 Canada and the International Seabed

countries were protected and that the international seabed regime did not undermine the free enterprise system. The differences in the milieu goals of the DEA and the other four departments should not be overstated. All departments put Canada's interests before any altruistic concern for other countries. Among the DEA lawyers, the degree of commitment to the new international economic order varied considerably. In addition, the need to court allies for the production ceiling provided a pragmatic reason for the DEA'S support of the Group of 77*5 goals. The differences in the milieu goals of the DEA lawyers and the other department officers hinged on their assessment of priorities. While the former were willing to make more concessions to facilitate the establishment of a new international economic order than were the other department officers, the latter were more concerned with maintaining the free enterprise system. The professional perspectives of the Canadian officers affected their willingness to make compromises. The DEA lawyers had the broadest range of interests, since they were responsible for co-ordinating Canada's policies on all the issues under negotation at UNCLOS m. They sought to obtain the best overall treaty package, one that would realize as many of Canada's objectives as possible. They approached the negotiations from the diplomatic perspective: in international fora, if the bargaining process is to succeed, countries are expected to give as well as to take. Officers from the other departments had far narrower concerns. Their expertise pertained to specific issues and they confined their attention to negotiations in these areas. For them, each element of an issue was an intricate component part, one that could not be traded for a benefit in some other area without undermining the utility of the provision as a whole. As a result, it was often difficult for them to compromise. From their perspective, compromises frequently undermined the whole complex structure of the provisions and hence nullified any benefits. It was quite standard for the DEA lawyers to point out all the gains that Canada had made at UNCLOS m, while officers from the other departments, especially the DOF, DITC and MOSST, were pointing out only the problem areas. All departments were concerned with the precedents that would be established during the UNCLOS m negotiations. Here again perspectives varied. The DEA lawyers wanted UNCLOS in to serve as a model for future international problem solving, particularly in terms of the North-South dialogue. The other departments were concerned lest precedents undermining the ability of developed countries to protect and promote their interests be established. Canada's reputation abroad was important to all the federal actors. The specialist departments wanted Canada to maintain its commitment to the Western industrialized countries, which they considered to be Canada's

77 Federal Government Actors

most useful allies. The DBA was more concerned with promoting Canada's reputation as a conciliator and with maintaining good relations with Southern as well as Northern countries. Of course, all departments preferred to remain on good terms with all countries. The differences expressed were actually ones of degree. TheDOF, DITC, and MOSST, in particular, gave higher priority to relations with other Western industrialized countries than did the DEA lawyers. The latter took a more global approach. In terms of possession interests, the DEA, DEMR, DOF, DITC and MOSST all sought to protect and promote Canada's interests as a major land-based producer, a potential seabed miner, and a developed country with considerable technological and financial resources. They differed, however, on the perception of issues, assessment of priorities, and choice of tactics. Both the DEA and the DEMR had general possession objectives in Committee One, for they were concerned with all the deep seabed mining issues. In contrast, the other three departments focused on the specific possession objectives of their respective mandates. These ranged from several issues, in the case of the DOF, to only one in the cast of MOSST. Nevertheless, they tended to share similar concerns about the deep seabed mining provisions and, on issues where one department played the lead role, the other two departments generally supported its stand. To the senior levels of the DOF, DITC , and MOSST, the Committee One issues were a low priority, relative to other matters within their jurisdictions. However, to the officers of these departments who did become involved, these same issues were deemed important to Canada's position as a developed country. They worked hard to ensure that Canada's policies in Committee One reflected the latter stance. Just as the milieu and possession goals of the five departments differed, so did the extent of their involvement. There were some issues, such as the provisions to protect pioneer investors in the Area, that were handled by officers from the Legal Operations Division with little, if any, input from other departments. Then there were other issues, such as the transfer of technology, on which representatives from all departments had established positions. All departments were in complete agreement concerning the necessity of membership on the Council of the International Seabed Authority. All thought it was important to protect Canada's interests as a major land-based producer, a potential seabed miner, and as an industrialized country that would be expected to contribute to the ISA. Furthermore, a council seat would enhance Canada's prestige; its importance would be recognized. Even on this issue, however, priorities varied to some extent. The Legal Operations Division did not want to exert too much pressure in pursuit of this objective, for fear of alienating other land-based producing countries. The DOF, DITC and MOSST, all nonadvocates of quantitative restrictions, were

78 Canada and the International Seabed less concerned with maintaining close relations with other land-based mining states. On the associated question of the decision-making procedures of the Council, it was generally agreed that weighted voting would best protect Canada's interests. Such a system meant that industrialized states would have greater voting strength than was possible under simple majority rule. The DBA, not wanting to alienate its allies on the nickel production ceiling, was reluctant to take a strong stand on this issue. Once again the DOF and DITC did not face these constraints. Because their primary concern lay with Canada's position as an industrialized country, they expressed preference for weighted voting. The DOF, DITC and MOSST were thus critical of many facets of the official Canadian position in Committee One. They argued that too much weight was given to political considerations, such as North-South relations, the common heritage of mankind, and the securing of gains achieved in the other two committees. Concern for these issues, they contended, was manifested at the expense of economic considerations, such as the taxation implications of certain provisions in the law of the sea text, certain commodity questions, international trade, and the free enterprise system in general. The DEA lawyers were more receptive to the needs and demands of developing countries than were the representatives from other departments. This sensitivity stemmed primarily from their desire to court allies for the nickel production ceiling and, even more importantly, to secure universal agreement on a law of the sea treaty. It also mirrored the stance of the government on the North-South dialogue. Nevertheless, there was also some genuine empathy and support for the aspirations of the developing countries within the legal echelons of the DEA. This receptivity was largely due to the personal inclinations of Beesley and some of his colleagues, who enjoyed a particularly good rapport with delegates from less developed countries.41 Officers from the DEMR occupied a middle position on UNCLOS in and the North-South dialogue. They generally shared the concern of other specialist departments that Canada's interests as an industrialized country should be maintained. Support for these interests was somewhat curtailed, however, by the desire to maintain good relations with Canada's allies on the production ceiling. At least some support, it was felt, had to be given to the demands of the Group of 77. All federal departments involved in Committee One issues wanted to protect the well-being of the Canadian nickel mining industry. Views varied within these departments as to the degree of the threat that deep seabed mining posed for land-based producers and the likelihood of subsidization

79 Federal Government Actors

taking place. The major divergence of opinion occurred over the means by which the mining industry should be safeguarded and, more especially, the priority to be given this issue relative to that accorded other Canadian interests. On the whole, the officers from the DOF, DITC, and MOSST tended to take threats less seriously than did most of their counterparts in the DBA and DEMR. The view of the specialist departments that, in effect, deep seabed mining was a long way off, was no doubt linked to the fact that, even though the necessary processing technology had been developed, there was no guarantee that the recovery technology would ever be perfected. As we have seen, the officers argued that the Canadian nickel mining industry was highly competitive and that Canada had a reputation as a safe source of supply. These factors, they contended, reduced the likelihood that the major consuming countries would ever pay subsidies for alternative sources of nickel. The different policy orientations of these players may, in part, have accounted for their different policy orientations vis-a-vis the deep seabed mining issue. The DOF, DITC and MOSST looked at international relations primarily from the perspective of economic considerations. In economic terms, the subsidization of seabed production by the major consuming countries did not make sense. The Legal Operations Division, in contrast, with its legal and political orientation, considered the political instability in some of the land-based producing countries to be of such significant concern to the major consuming countries that payment of subsidies to ensure alternate sources of supply was warranted. Officers from the DOF, DITC, and MOSST also had qualms about the utility and desirability of quantitative restrictions. Doubts were raised as to the workability of a production ceiling because of the problems inherent in using past trends to predict future growth and the need to rely on the goodwill of deep seabed miners to enforce it. In addition, the terms of the production policies were deemed inadequate, especially after the floor was added. Although officers from DEMR did the technical assessments and calculations for the various production formulae, their views on the issue varied with time as well as the individuals involved. For example, the response of the officers from the Resource Management and Conservation Branch and the Mineral Policy Sector to the production ceiling of the Revised Single Negotiating Text evolved through several states.42 Initially, there was disapproval of the means by which the formula had been incorporated into the text and, more especially, of the merits of having quantitative restrictions on production from the Area. But, although doubts about the desirability of a production ceiling persisted in many quarters,43 it became quite clear very early on that the concept was there to stay. As a result, attempts were

8o Canada and the International Seabed

made to ensure that the formula included in the law of the sea text would phase in deep seabed mining without seriously disrupting the international markets for land-based producers. Officers from the Legal Operations Divisions relied on the technical experts from the DEMR to assess the formulae and to predict their implications. When Crosby contended that the production ceiling in the Revised Single Negotiating Text would pose serious problems for land-based producers, they accepted his assessment. All of the Canadian government actors agreed that the formulae in the negotiating texts were inadequate. Beyond criticizing the actual formula in the text, officers from the DOF, DITC, and MOSST wanted to see free market forces determining the share of the demand supplied by the various sources. They believed that limits should be considered only in extreme instances where markets would be severely disrupted. Deep seabed mining, they argued, would not pose a serious threat to international metal markets. Although they recognized that market forces would allocate resources and that this process would inevitably produce winners and losers, they felt that, given the competitive advantages of sulphidic nickel, Canada's mining industry was not likely to be severely disrupted. In addition, they argued that the placing of restrictions on production from a new source would only establish an undesirable precedent, one that could hinder the future development of other types of resources. The DOF, DITC, and MOSST were concerned that Canada's position in Committee One would undermine its relations with allies in other multinational fora. The DITC was involved in the Organization for Economic Cooperation and Development (OECD), where Canada was generally classified as a developed country, although it was a major exporter of natural resources. The MOSST was active in the UNCTAD negotiations, where Canada not only was a member of the bloc of industrialized states (the Group B Countries) but also spoke on their behalf in negotiations regarding the code of conduct for the transfer of technology. The three departments were concerned, as well, with the ability of Canadian companies to participate in activites in the Area. Restrictions on production from the deep seabed were seen as hindering the commercial exploitation of the manganese nodules and were considered, therefore, to be undesirable. Despite these reservations, the officials from the DOF, DITC and MOSST did not take strong stands against the production ceiling. The reasons were several: other Committee One issues were more important to them; by the time they had become involved, the production ceiling was firmly entrenched as Canadian policy; and, during the first few years after the introduction of the concept, opinions varied from department to department as to the implications of including quantitative restrictions. For example,

81 Federal Government Actors

when the production ceiling first emerged in 1976, some officers in the Department of Finance strongly criticized it, while others considered it benign and therefore not worth worrying about.44 While officers from these departments questioned the utility and desirability of having quantitative restrictions, their main concern was the priority it had been accorded. To their mind, the focus on the production ceiling had diverted attention and bargaining resources from other issues that they judged to be more important to Canadian interests. It had also curtailed Canada's ability to pursue these interests. In order to retain the support of the land-based producers and the Group of 77 for the nickel ceiling, they argued that Canada had not taken a firm stand on the issues that affected its financial and technical resources. The protection of the latter was of greatest concern to the DOF, DITC, and MOSST, for the issues of technology, industrial development, trade, and commodities fell within the mandates of these departments. Representatives from the DOF, DICT, and MOSST all expressed concern regarding transfer technology provisions. Most important, they felt, was the fact that the UNCLOS m provisions for technology transfer seemed to set undesirable precedents for future North-South negotiations regarding other types of technology. These representatives also argued that the provisions contradicted the principle of universality that Canada had supported at UNCTAD and in other international fora. Another major concern was the mandatory nature of the transfers. It was argued that no company should be forced to sell its technology as a condition of obtaining access to the Area. In addition, although the text specified "fair and reasonable terms," the exact meanings of these terms were not defined. Thus the representatives contended that those Canadian companies which, without the help of government subsidies, had developed advanced technology in the areas of submersibles, navigation, and sensitive feed-back systems for use on the continental shelf might suddenly find these technologies deemed relevant to deep seabed mining. They also argued that the text failed to specify who would decide what constituted "fair and equitable" terms. The "Brazil clause" was considered to be particularly discriminatory, because it stipulated that technology was to be transferred to developing countries and their nationals, as well as to the Enterprise. The representatives opposed such blanket transfers to developing countries, on the grounds that they would give the more sophisticated developing states, such as India, preferential access to technology.45 The concern was that industries in these countries might provide competition for Canadian companies in the near future. Officers from the DEMR agreed with the opposition, those representatives of the other specialist departments, who opposed the transfer of technology

82 Canada and the International Seabed provisions being negotiated at UNCLOS in. However inasmuch as the support of allies from the Group of 77 was wanted for Canda's production ceiling, criticism was muted. Within the legal echelons of the DEA, some officers were more committed to the creation of a new international economic order than others.47 The degree of support given to the transfer technology also varied from individual to individual. Although the DEA lawyers were aware that the provisions for the transfer of technology posed problems for industrialized countries and their companies, they did not consider the provisions posed to be nearly as serious a threat to Canadian owners of technology as that envisaged by the DOF, DITC and MOSST officers. In interdepartmental meetings, the DEA lawyers pointed out the safeguards that had been included in the texts to protect the owners of technology. Although the DEA lawyers never directly traded off technology transfers for the production ceiling, they tended to keep relatively quiet apropos the transfer of technology issue, not allocating as much time to it as they might have under other circumstances.48 The us review prompted the Canadian delegation and those of several other industrialized countries to try to work out a compromise proposal, one that would in effect return the us to the bargaining table but still be acceptable to the Group of 77. The DEA representatives were therefore willing to consider some alterations in the terms for transferring technology, the goal being to make them more amenable to the needs of the owners of technology. Such changes were to be contemplated, however, only if they did not jeopardize Canada's other gains at the Conference. The DEA lawyers recognized the need for Canada's position on the transfer of technology at UNCLOS m to be consistent with those pursued at other conferences. In order to achieve their other objectives, however, they accorded the higher priority to adopting a flexible and more liberal policy at UNCLOS in. According to the DEA lawyers, the provisions to transfer technology pertaining to deep seabed mining were designed to address a unique situation and, therefore, would not establish precedents for negotiations in other fora.49 Officers from the DOF and DITC criticized the DEA lawyers for not giving enough consideration to the rights of the seabed operators. Many of the terms in the negotiating texts were seen as disincentives to the private exploitation of the Area. In addition to the previously mentioned problems posed by quantitative restrictions and the transfer of technology provisions, the obligations for private operators to transfer technology to the Enterprise and to make financial payments to the International Seabed Authority were seen as onerous. State contributions to the ISA and the Enterprise were considered to be inflicting burdens on developed states, while simultaneously providing unfair advantages to the Enterprise. In effect, the privileges

83 Federal Government Actors

and immunities granted to the Enterprise were greater than those offered to other miners of the deep seabed. Provisions forcing industrialized countries both to finance the Enterprise and to provide it with advantages not enjoyed by private companies were unappealing to the DEMR officers, as well. They recognized, however, that these terms were necessary conditions for securing a treaty that would be acceptable to the Group of 77. As a result, they did not vehemently object to these provisions. The Department of Finance took the lead for Canada in negotiating the anti-subsidization and fair market access clauses. The subsidization of deep seabed mining was thought to pose the greatest threat to Canada's interests as a land-based producer. As a result, it appeared logical to tackle the problem at this point. The goal was to get clauses with "teeth" in them, ones which could be backed up by internationally agreed-upon rules and regulations. The DOF officers considered the anti-subsidization and fair market access clauses to be both predictable and enforceable which was more than they could say for the production ceiling.50 The DOF'S efforts on this issue were the result of teamwork by two officers in the International Economic Relations Division, Soe Lin and Tom Shenstone. Whereas Soe Lin, a member of the Canadian delegation, was directly involved in the negotiations pertaining to this issue, Tom Shenstone provided information and support from Ottawa. Although the DOF generally viewed the anti-subsidization provisions as desirable, there were some doubts raised as to the appropriateness of the forum. UNCLOS ra was seen as a setting in which political considerations predominated, where the less developed countries had inordinate power. As a result, some officers in the DOF would have preferred to see the issue dealt with at the GATT negotiations.51 Despite these concerns, there was general support for the anti-subsidization clause. Unlike the production ceiling, this clause was thought to offer somewhat better safeguards for Canada's mining industry. It was also more acceptable ideologically to the DOF, given its interest in preserving the free enterprise system. The efforts of Soe Lin and Shenstone, along with members of the Australian delegation, resulted in the inclusion of an anti-subsidization clause in the text. Although that clause was not as strong as had been hoped, it did offer landbased producers some additional protection. Even though the DITC and MOSST officers viewed the anti-subsidization clause as preferable to a production ceiling, they had virtually no involvement with this issue. Within the DITC, however, a few queries concerning the workability of the anti-subsidization clause were raised.52 The fear was that since manganese nodules would be processed on land, they might be considered "domestic production." The corollary was that because the GATT provisions did not apply to domestic production, it was possible that

84 Canada and the International Seabed the minerals from the Area refined on land would be open to subsidization. Yet to define deep seabed mining so as to preclude having the resulting metals considered domestic production would be a difficult problem. After the introduction of the floor proposal, the DEMR sought a production policy package that would include a production formula, an antisubsidization clause, and a free market access clause.53 Jackson and Gauvin worked closely with Soe Lin of the DOF to secure these clauses. The proponents of the nickel production ceiling were concerned lest any attempt to negotiate anti-subsidization and free market access clauses undermine efforts to secure an effective limit on production from the Area.54 In order to obtain support for the nickel production ceiling in the first place, they had had to argue that such clauses would not offer sufficient safeguards for land-based producers. They felt that to then turn around and begin to lobby for these clauses would undermine their credibility. It would also raise questions among their allies as to whether Canada was really serious about negotiating a nickel production ceiling. In addition, the concept of the ceiling was strongly supported by the governments of Ontario and Manitoba, as well as Local 6500 of the United Steelworkers of America. The representatives of these organizations had sold their constituencies on the value of the formula. It was impossible, therefore, to change their position without losing credibility. And finally, whereas the production ceiling, in spite of all its uncertainties, was based on hard figures, the anti-subsidization and free market access clauses were, by way of contrast, just words. This meant that the formula appeared to offer more concrete protection than did the clauses. The Legal Operations Division supported the efforts to negotiate antisubsidization and free market access clauses. It was not willing, however, to risk losing the production ceiling in order to secure these other provisions. The Canadian delegation never welcomed Kissinger's proposal that the land-based producers which were also less developed countries should receive compensatory financing. Nor did it vehemently oppose compensatory financing, for fear of alienating its allies in the land-based producers' group, most of which were less developed countries. For Canada, compensatory financing did not seem important enough to warrant taking a strong stand. The issue became more critical for the Canadian delegation, however, towards the end of the Conference, when Zambia, Zaire, and Zimbabwe were strongly advocating its acceptance. At that point, it seemed likely that the compensatory financing principle would be used by the potential seabed mining states as a means of persuading the land-based producing countries to give up on the production ceiling. Since Canada was a developed country, it would not have benefited from such provisions. Moreover, compensatory financing for less developed countries would have been a way of subsidizing Canada's competitors. As a result, the burden of any oversupply that might have occurred when production from the Area appeared on the in-

85 Federal Government Actors

ternational markets would have shifted to Canada.55 In addition, any provisions for compensatory financing in the law of the sea text would have established precedents for the subsidization of other forms of production in the less developed countries. Members of the DOF, particularly Guillemette, became actively involved in the compensatory financing issue. Their chief concern was not the amount of the payments, which were relatively small, but the precedent that compensatory financing would have established.56 Guillemette and his allies at UNCLOS ra were able to negotiate provisions which ensured that payments to the less developed countries would be small.57 The final decision was that the ISA would pay compensatory financing after money had been paid to finance the Enterprise. Given the enormous costs of deep seabed mining operations, the amount left over to pay compensatory financing was expected to be very limited. Although compensatory financing was viewed as nonnegotiable after 1980, officers from DOF wanted the issue re-opened.58 They contended that if such provisions were to be included, the basis should be geared to a country's overall balance of payments position, rather than to just one commodity.59 The Legal Operations Division of the DEA never took a strong stand on compensatory financing. The amounts of money involved were small. More importantly, it did not want to alienate its allies in the Group of 77. When one compares the official Canadian policies on the issues relating to deep seabed mining, discussed in chapter 3, with the interests and priorities of the five federal departments, it is clear that those of the DEA lawyers dominated. From 1976 on, priority in Committee One was given to Canada's interests as a land-based producer. This position was pursued in close cooperation with the senior representative from the DEMR. Crosby's initiative and expertise were critical to the efforts of the Canadian delegation in this area. Officers from the DOF, DITC, and the MOSST, who gave priority to Canada's interests as an industrialized country, had relatively little success in altering the focus of Canada's policies in Committee One. In order to understand the reasons for this outcome, it is important to examine the policy-making process, the relative bargaining strengths of the various departments, and the tactics each employed. THE INTERDEPARTMENTAL C O M M I T T E E ON THE LAW OF

THE SEA

The key body in the formulation of Canada's policies pertaining to the law of the sea was the Interdepartmental Committee on the Law of the Sea (ICLOS), an entity which succeeded the Interdepartmental Committee on

86 Canada and the International Seabed Territorial Waters in 1970. ICLOS was the forum in which representatives of interested federal departments met regularly to work out recommendations on the law of the sea for cabinet. Memoranda to cabinet were drafted by the DBA lawyers, approved by ICLOS, and presented to the Cabinet Committee on External Policy and Defence by the secretary of state for external affairs, who chaired the latter. Following publication of the "mirror report" in 1979, ICLOS no longer reported directly to the Cabinet Committee on External Policy and Defence. Instead it channelled its recommendations through the assistant deputy ministers' Committee on External Policy and Defence which, in turn, reported to its "mirror" committee in the cabinet. This reorganization meant that ICLOS no longer had direct, formal access to the cabinet. To a certain extent, this reallocation represented a decline in the prestige of ICLOS. It did not seem, however, to affect the ability of ICLOS to have its policy proposals on Committee One issues accepted by cabinet. Its success was probably due to the fact that it enjoyed the continued support of individual ministers, notably, the secretary of state for external affairs, and the secretary of state for mines. Even during the period when ICLOS reported directly to the Cabinet Committee on External Policy and Defence, contact between the two bodies was not always regular. Prior to the first session in June 1974, a memorandum was sent to cabinet, mentioning but not elaborating on the idea that seabed mining might have some negative effects on land-based production, and hence that some form of control over production from the Area might be necessary.60 Although the DBA lawyers and DEMR officers viewed the production ceiling as a priority from the time it was first introduced to the Conference in 1976, the issue was not referred back to cabinet. Instead, subsequent memoranda were sent to several individual ministers. These steps were taken on the grounds that production limits had been mentioned in the 1974 cabinet instructions to the Canadian delegation61 and in discussions with two senior cabinet ministers, Jamieson and LeBlanc, at UNCLOS in in 1976. Cabinet as a whole was never asked whether or not it wanted to have a production ceiling included in the law of the sea convention and, if so, which option it favoured.62 Fairly detailed memoranda on the subject were sent to select ministers, including the secretary of state for external affairs and the minister of energy, mines and resources, who agreed with the concept. Their approval was used as the authority for further action. This practice of drafting memoranda to individual ministers, rather than to cabinet as a whole, continued throughout the latter 19705. It was a quick and efficient way to keep key ministers informed and to elicit their support. This was particularly true in the latter half of the 19705, when it became increasingly difficult to reach consensus in ICLOS. To seek out the opinions of a wider range of ministers would either have been counterproductive or, more likely, a waste of time for the DBA lawyers. Civil servants in the DOF, DITC, or MOSST had not been able to engender interest in the deep seabed

87 Federal Government Actors

mining negotiations from their respective ministers. Why then would these ministers be more receptive to presentations by civil servants from another department? Even if the DEA lawyers had been able to interest these ministers, the latter would, in all likelihood, have supported the positions of their own civil servants. In short, none of the ministers from the DOF, DITC or MOSST asked to be kept informed and there was no return for the DEA lawyers in doing so. In addition to its involvement with UNCLOS m, ICLOS was also responsible for law of the sea issues that were handled unilaterally, bilaterally, and in multilateral and other international fora. In the early 19705, ICLOS was not only busy preparing for UNCLOS m, but also for the Food and Agriculture Organization and the Intergovernmental Maritime Consultative Organization conferences on marine pollution, as well as the Stockholm Conference on the Environment. Up until 1979, ICLOS was designated a deputy ministers' committee and, during the early 19705, some deputy ministers, such as Alfred Needier from the Department of the Environment, did attend. However, because of the number of other committees and the time restrictions faced by deputy ministers, ICLOS meetings were generally chaired and attended by less senior officials. For example, the assistant deputy minister of DEA attended a few of the initial sessions and the final review of cabinet documents.63 In his absence, the legal adviser for the department chaired the ICLOS meetings. This position was held sequentially by Alan Beesley, Edward Lee, Maurice Copithorne, and Leonard Legault. Because the assistant deputy minister of the DEMR never attended,64 the DEMR'S most senior representative to ICLOS was Don Crosby. It was possible for all federal departments and central agencies to appoint officers to ICLOS. Participation in the Committee facilitated a two-way communication network. It provided an opportunity for representatives from all interested departments and agencies to present the concerns of their respective departments and to share pertinent information. Considerable effort was also made to keep those participating in the ICLOS discussion well informed of relevant developments domestically, at UNCLOS in, and internationally. Written reports and papers on the law of the sea were circulated regularly to all members of ICLOS. In addition, Canadian delegates to UNCLOS m made oral presentations to the committee after each session. The ICLOS sought to reach consensus among the participating departments on the desired direction and general content of Canadian policy. Proposals outlining policy options were then sent to cabinet or to individual cabinet ministers for approval. The main objective of the participants in ICLOS was to facilitate the work of the Canadian delegation. As a result, the focus was on meeting the immediate needs of the delegation, rather than on doing studies regarding the long-term implications of the issues under negotiation. In addition to discussing policy positions on the issues under

88 Canada and the International Seabed negotiation, the participants devoted time to planning bargaining strategies and the tactics to be used during the sessions, both at the intersessional meetings and in foreign capitals. In order to facilitate a thorough examination of the issues, working groups were established within ICLOS to consider specific areas of concern. Most of the departments and agencies participating in ICLOS sent representatives to the working groups, each of which was chaired by an officer from a department or agency with a specific interest in the issues under discussion. The ICLOS Working Group on Committee One was chaired by Crosby. Each time the Conference produced a new negotiating text, this group would analyse its provisions and their implications for Canadian interests. Although ICLOS functioned as an interdepartmental committee, in the sense that a wide variety of federal departments actively participated in its discussions on the law of the sea, the DEA lawyers assumed the position of "first among equals." Their ultimate trump card, had it been necessary, was that their minister would defend their choice of priorities before cabinet. As discussed earlier in this chapter, the senior DEA lawyers, especially Beesley and Legault, devoted a lot of effort to retaining the support of the secretaries of state for external affairs.65 Their success in getting these ministers to pay considerable attention to UNCLOS in at a time when cabinet attention was focused on other priorities was a significant accomplishment. This was most notable in the case of MacEachen who, in 1980, was both deputy prime minister and secretary of state for external affairs. In spite of the enormous pressures on his time and the fact that UNCLOS m was not among the Government's highest priorities, MacEachen attended portions of the sessions and raised questions about the deep seabed mining negotiations in meetings with his counterparts from the United States, the United Kingdom and Australia. The minister of state for mines, like the secretaries of state for external affairs, gave full support to the Canadian delegation's efforts to secure an effective nickel ceiling as well as a law of the sea treaty that would be accepted by the international community. In contrast, the bargaining positions of the officers of the DOF, DITC and MOSST were relatively much weaker. Their respective ministers did not consider the Committee One issues to be important enough to warrant taking the associated concerns to their subordinates to cabinet. The minister of finance agreed to the parallel system with two provisos: that the Enterprise and all other seabed miners compete on equal terms to develop the resources of the Area; and that Canada be given a seat on the ISA council.66 Both these conditions were accepted by cabinet, although neither was realized at UNCLOS in.67 The minister of industry, trade and commerce never became involved with the deep seabed mining issue at all. However, when the document on the

89 Federal Government Actors

law of the sea convention was presented to cabinet in 1982, the minister, Ed Lumley, did sign it, thereby giving it his approval.68 Most of the ministers of state for science and technology took no interest in the transfer of technology discussions at UNCLOS m.69 In March 1981, John Roberts, minister of state for science and technology, wrote to Mark MacGuigan, secretary of state for external affairs, expressing concern over the transfer of technology provisions, particularly the "Brazil clause", and the precedent that would be established by making transfers mandatory. He urged that the Canadian delegation support the renegotiation of these provisions if the issue was re-opened at the tenth session. Beyond this action, none of the ministers of state for science and technology was willing to debate the issue with his cabinet colleagues.70 Cabinet's preoccupation with the macro, rather than the micro, level of policy predisposed it to favour the broader perspective of the DEA lawyers, rather than the more narrow and highly technical concerns of the DOF, DITC, and MOSST. The prime minister and his ministers were concerned with Canada's relations with other countries, the North-South dialogue, and obtaining the best possible treaty package for Canada at UNCLOS in. Scarce cabinet resources were not devoted to such highly technical issues as the means by which the economic value of technology was to be assessed. Interdepartmental negotiations were carried out, then, at the bureaucratic, rather than the political, level. Deep seabed mining was never the subject of conflict within cabinet. In the long run, it was the relative bargaining strengths within the civil service that determined the policies recommended to cabinet. The DEA lawyers had structural and functional advantages over the other departments involved with Committee One issues. One advantage was its position as the lead department in matters pertaining to international relations and international law. Within the department, the law of the sea issues were the responsibility of its lawyers. The latter had expertise in international law and international negotiations, as well as experience in coordinating interdepartmental activities in both these areas. As a result, they had an initial advantage over officers from other departments, who had no knowledge of international law and whose experience in international negotiations was generally very limited. Most of Canada's policies in Committee One reflected the priorities of the DEA lawyers. Their efforts on the production ceiling, however, would not have been possible without the support of the officers from the DEMR, the lead department in matters pertaining to Canada's mining industry. Such an alliance was a formidable obstacle to opponent's of the production ceiling. The only way by which officers in the DOF, DITC, and MOSST might have convinced Canada to withdraw its strong support for the formula would have been if their respective ministers had taken the fight to cabinet.

90 Canada and the International Seabed Yet even if these ministers had been willing to advocate a re-evaluation of Canada's policies in Committee One, the chances of reorienting Canada's priority interests to those of a developed country would not have been great. The DBA lawyers had the support of strong and senior ministers. Not only were these lawyers and the officers from the DEMR a powerful coalition, but there was also a strong constituency in support of their positions outside the federal government. This support came not only from Canadian nickel miners and officials from municipal and provincial governments, but from other powerful interests, such as members of the Canadian fishing industry, who did not want Canada to take any positions that might jeopardize the negotiation of an internationally acceptable treaty. Such negotiation was necessary to ensure them of the rights worked out in Committees Two and Three. The ICLOS meetings were chaired by an officer from the DBA - usually its legal advisor - and held in its headquarters. Along with the position of chairperson went considerable discretionary powers, such as deciding who will be recognized to speak when, administering the rules of procedure, and organizing the distribution of discussion papers. The secretarial functions for ICLOS, which the Privy Council Office was originally intended to perform, were handled throughout UNCLOS m by the DBA lawyers. These functions included setting the agendas for ICLOS meetings, writing the minutes, co-ordinating the distribution of information to Committee members, and drafting memoranda for cabinet. The method by which cabinet ministers were apprised of ICLOS' work on the Committee One issues strengthened the bargaining position of the DBA lawyers. Following the second session in 1974, and until 1980, no documents on the deep seabed mining issues were sent to cabinet itself. The change from preparing cabinet documents to sending memoranda to individual ministers helped entrench the position of the DBA lawyers. While these latter officers could not have withheld information from ministers who requested it, issues that might have been of interest to ministers were simply not always brought to their attention. 71 This point, however, should not be overstated. It was the civil servants from the DOF, DITC, and MOSST who were actually unable to elicit strong support from their respective ministers for their positions on the Committee One issues. Memoranda to cabinet ministers outlined Canada's interests, presented policy options, made recommendations, and pointed out the parameters within which the Canadian delegation had to negotiate. But according to some members of ICLOS, the memoranda drafted by the DBA lawyers did not reflect the dissenting opinions adequately.72 Being able to exercise considerable control over the circulation of information was a useful negotiating advantage. For example, by using some discretion in the distribution of information, DBA lawyers could help deter-

9i

Federal Government Actors

mine who saw what materials when. Such tactics were important when civil servants began to court allies and avoid potential sources of criticism and dissension. The DBA lawyers benefited from having access to an extensive communications network. Because their department had missions all over the world, it was relatively easy for these officers to keep abreast of relevant developments internationally. Numerous telexes, for example, were sent back and forth between Ottawa and the Canadian embassy in Washington. Since the decisions of the u.s. government significantly affected the UNCLOS m negotiations, the Canadian embassy kept the Legal Operations Division informed of pertinent developments and trends in the United States, in particular moves to enact deep seabed mining legislation, positions on the production ceiling and, after 1981, progress on the review of the law of the sea text. In the latter 19705, regular reports were also sent back to Ottawa from London, Bonn, and Tokyo with regard to movements within these countries towards the passing of deep seabed mining legislation. Certain actions relevant to the Committee One negotiations, taken by the governments of other land-based producing countries, were likewise monitored. During the sessional and intersessional meetings, a steady stream of telexes passed between the Legal Operations Division in Ottawa and the Canadian delegation. Those from the Conference provided extensive details on the state and content of the negotiations, the strategies pursued, and the positions of other delegations. In turn, the legal officers in the DBA provided relevant information regarding developments in Canada and sundry talks held with foreign representatives in other fora that had a bearing on the law of the sea. At times, they also suggested negotiating strategies. The DEA'S extensive international networks also facilitated lobbying efforts in other countries. Apart from the many telexes passed between Ottawa and the Canadian embassy in Washington - arranging meetings between Canadian and us officials at the political and bureaucratic levels and providing useful advice on which us officials would be most sympathetic to Canada's views and on how best to arrange appointments - telexes were also frequently sent between Ottawa and Canada's missions in other landbased producing countries. Canadian diplomats in these countries were asked to make representations to officials in their host countries in support of Canada's position on the production ceiling. Such communication networks enabled the Legal Operations Division to keep in close contact not only with its representatives travelling outside the country to promote Canada's positions but with those posted abroad. During the period of UNCLOS m, for example, Alan Beesley served first as ambassador to Austria (1973 to 1977) and then as high commissioner to Australia (1977-80). While on these postings, he and his colleagues in the Legal Operations Division sent numerous telexes back and forth, frequently

92 Canada and the International Seabed several in one day. In addition to exchanging information, they outlined strategies to be used at ICLOS meetings as well as during discussions regarding Committee One issues with representatives from other countries. Similar, although much less frequent, exchanges of telexes took place between the Legal Operations Division and officers who had worked for it on law of the sea issues prior to being posted abroad. The Legal Operations Division's control of the telex operation gave it a significant advantage over other departments. Although much of the information collected from abroad was shared with the members of the ICLOS, some telexes specified that their content was to be limited to the eyes of the Legal Operations Division. In addition, if officers from other departments wanted to send a message to the Canadian delegation - one which the Legal Operations Division disapproved of - the message, at least according to one interviewee, was not always sent. The division's extensive communications network facilitated its job as co-ordinator, inasmuch as the division's officers were in the best possible position to benefit from having access to information from around the world. Officers from other departments, for example, had to go to the DBA lawyers for much of this information. The files indicate that representatives from all the other departments concerned with the deep seabed mining issues, and from several divisions within the DBA (not including the Legal Operations Division), complained that they were not always kept adequately informed of developments in this area. Even Crosby, who co-operated most closely with the senior DEA lawyers on this issue, wrote in August 1978 criticizing the Bureau of Legal Affairs for not keeping him fully informed. For whatever reason, the departments and divisions not sharing the priorities of the Legal Operations Division generally felt more excluded than those that held positions similar to those of the DEA lawyers. The Legal Operations Division allocated more personnel to the negotiations than any other department. As a result, its officers were able to keep abreast of the issues under negotiation and to ensure that its interests were represented. The actual personnel allocated to the UNCLOS m issues were also relatively consistent, especially at the more senior levels. This was particularly notable in a department where job rotations were fairly frequent. Alan Beesley and Leonard Legault, for example, were actively involved in the law of the sea negotiations during the Seabed Committee and throughout UNCLOS m. That consistency facilitated a better understanding of the evolving nature of the negotiations and provided the two men with the opportunity to become well versed in the issues. To capitalize on this expertise, efforts were made to have persons familiar with UNCLOS m return to Ottawa for key meetings. In 1977, requests were made for Clark and Lapointe to return from Washington and New York, respectively, to attend a meeting

93 Federal Government Actors

of ICLOS. While serving as ambassador to Austria, Beesley was also asked on several occasions to travel back to Ottawa to attend meetings of ICLOS and to join in on consultations on the law of the sea with visiting officials from other countries. The DEA lawyers not only had structural and functional advantages but they knew how to use them effectively. They had contacts already established with deputy ministers and members of cabinet,7 3 which meant that access to those in authority was relatively easy. When officers from other departments threatened to take an interdepartmental dispute to the cabinet level, Beesley would get there first.74 He went to the ministers well prepared and was able to convince them of the legitimacy of his position.75 And Legault, who drafted most of the memoranda sent to cabinet ministers from ICLOS,76 was careful to phrase the recommendations in sufficiently broad terms to allow the Canadian delegation maximum leeway in negotiating at UNCLOS m. 77 The role of the DEA lawyers at ICLOS increased as the Conference progressed. In the early 19705, several other departments, such as fisheries and the environment, began to perceive the negotiations as very important to their interests; they became extremely active in ICLOS and on the Canadian delegation, at both the political and bureaucratic levels. By 1976, however, their major concerns had been accommodated by the provisions in the Revised Single Negotiating Text and their involvement began to wane. By that time, the DEA lawyers had firmly established their position, and the momentum of the negotiations made it very difficult for departments that had not established a strong presence earlier in the negotiations to alter the direction of policy. Thus the debates in ICLOS during the latter 19705 and early 19808 were frequently contentious; officers from the DOF, DITC and MOSST held very different views from those of the DEA lawyers, as to how best to secure Canada's interests in Committee One. These divergent opinions made it increasingly difficult to reach consensus. After 1976, ICLOS became less of a brokerage forum, in which participants presented the concerns of their departments and hammered out concerted policy, and more of a setting in which discussions were pro forma.16 Altogether, then, although the DEA could not dictate the policies that Canada would pursue in Committee One or at UNCLOS in generally, its strong bargaining position meant that its will tended to dominate. Indeed, the only hope officers from the DOF, DITC and MOSST had of getting Canada's policies revised lay in persuading their ministers to argue their case in cabinet, in spite of opposition from the secretary of state for external affairs. This they failed to do. The federal government actors who were actively involved with the deep seabed mining issues sought allies to enhance their bargaining positions in the interdepartmental negotiations. As discussed earlier, the positions of

94 Canada and the International Seabed the DEA lawyers and officers from the DEMR were mutually reinforcing. Together they were a formidable team. Officials in the DOF, DITC and MOSST generally shared the same concerns regarding Committee One provisions. Although they tended to focus on specific areas of interest to their respective departments, they co-operated to a considerable extent. In 1979, when Bradley (MOSST) began to attend the ICLOS meetings and spearhead opposition to the provisions for the transfer of technology, Guillemette (DOF) and the DOF officers who subsequently became involved in ICLOS (or sat on the Canadian delegation) began to focus on matters relating to financial questions, such as the anti-subsidization clause. Civil servants from DOF, DITC, and MOSST consulted with each other and were generally supportive of each other's efforts withing ICLOS and on the Canadian delegation. Officers from the five departments also cultivated allies outside the federal government to support their positions regarding the regulation of activities in the Area. Representatives of provincial and municipal governments and of nongovernmental organizations were included among these allies. The DEA lawyers and officers from the DEMR also co-operated with representatives from Ontario, Manitoba, and the United Steel workers of America on the production ceiling. These representatives were useful allies, both at ICLOS meetings and on the Canadian delegation. The fact that these provinces and a union representing Canadian nickel miners were all backing efforts to get an effective nickel production ceiling helped to strengthen the credibility of this position during negotiations with the cabinet and other countries. Officers from the DOF, DITC, and MOSST also sought allies outside the federal government. This activity was particularly important, for the proponents of the production ceiling had stronger positions in ICLOS and on the Canadian delegation and already had allies from provincial governments as well as the labour movement. Following his attendance at the sixth session, Guillemette of the DOF wrote a report, subsequently circulated to all the relevant federal departments, outlining the provisions in the Informal Composite Negotiating Text pertaining to deep seabed mining. Up to this point, neither MOSST nor DITC had been involved with the Committee One negotiations. Guillemette's report helped to acquaint these departments with the deep seabed mining provisions and officers in both departments became involved. A brief version was subsequently published in the Northern Miner,19 a journal read internationally by individuals concerned with mineral development. The article sought to alert people in the mining industry to developments at UNCLOS m, to increase their awareness of the implications of the provisions under negotiation. Although the article did not appear to generate a significant amount of interest group activity, it did increase the mining industry's awareness of the Committee One issues and

95 Federal Government Actors was cited by members of several other delegations at the next session of UNCLOSIII. 80

Efforts to get external allies did not stop there. Prior to a meeting between the Canadian Business and Industry International Advisory Committee (CBIIAC) and several federal government departments, officers from the DOF, DITC, and MOSST met privately with representatives from CBIIAC to inform them of the provisions in the law of the sea text. They pointed out the problems that these provisions could pose for the business community. At a subsequent meeting, representatives of CBIIAC raised the law of the sea issues and criticized officers from the Legal Operations Division for ignoring the interests of Canada as a developed country and of the Canadian business community in particular. From that point on, Alan Swabey of CBHAC monitored developments at UNCLOS ra and Canada's deep seabed mining policies very closely. In fact, as discussed in chapter 6, CBIIAC became actively involved with the deep seabed mining issues. In addition to its numerous representations to the Canadian government, it was responsible for activating some individuals in the American business lobby who were influential in bringing about the Reagan administration's review, and subsequent rejection, of the Law of the Sea Convention. Civil servants in the second coalition may have had limited influence vis-a-vis Canada's choice of priorities. But by activating the business lobby in Canada, which in turn helped to galvanize American opposition to the Law of the Sea Convention, they played a role, albeit small and indirect, in prompting the Reagan administration to vote against the Convention. As will be discussed more fully in chapters 5 and 6, allies outside the federal government provided useful support for civil servants in the process of interdepartmental bargaining. These contacts also facilitated a twoway flow of information between the Canadian government and those groups within the country affected by the provisions under negotiation in Committee One of UNCLOS m.

CHAPTER FIVE

Provincial and Municipal Governments

With regard to external affairs, the Canadian constitution does not provide for a clear-cut division of power and responsibility between federal and provincial governments. In practice, however, most provincial players regard their federal counterpart as the dominant actor in this domain.! As a result, responsibility for foreign policy generally rests with the federal government. Canada's policies on deep seabed mining were no exception to this rule: they were negotiated in the federal ICLOS, drafted by the DEA lawyers, and approved by the federal cabinet. In Canada, federal and provincial governments share in the development of natural resources. Under the constitution, provincial governments are empowered to establish policies to manage their natural resources and to regulate the rate at which they are developed. The federal government has other areas of jurisdiction that enable it to influence both directly and indirectly the development of mineral resources within Canada. These include the power to set fiscal and monetary policies; to regulate interprovincial and international trade, and transportation between provinces; to designate works of national significance; and to determine external relations. These federal powers are very important to the prosperity of the Canadian mining industry, for it is highly dependent on foreign exports. Not only were provincial interests at stake in the deep seabed mining discussions but, in recognition of overlapping constitutional jurisdictions, the federal government had committed itself in its 1968 White Paper on Federalism and International Relations to consider the views of the provincial governments when their specific interests are areas of jurisdiction affected by federal policies.2 Since the health of the nickel mining industry had, as we have seen, direct economic and political implications for the governments of Ontario and Manitoba, the federal government had a political, if not a legal, obligation to consult these provinces, at least on the

97 Provincial and Municipal Governments

deep seabed mining issues. Other provinces had interests in other areas of the law of the sea. The Canadian government thus went to considerable effort to involve the provinces. Prior to UNCLOS m, federal officers travelled to the provincial capitals to brief provincial officers on the upcoming conference. The provincial governments were asked to identify their interests in the negotiations, so that the federal government could take them into consideration when establishing its objectives at the Conference. In addition, the provincial governments were invited to appoint representatives to the Canadian delegation. Thus eight provinces sent representatives to UNCLOS in. As discussed in chapter 9, such provincial participation would have been unheard of prior to the 19605. More recently, however, it has become quite normal to see provincial governments involved in law of the sea issues. For example, Nova Scotia and New Brunswick both had representatives on the Canadian government's Gulf of Maine Advisory Committee. Not only were these provincial advisors consulted by Ottawa but they were also asked to attend the judicial proceedings of the Chamber of the International Court of Justice during the adjudication of the Gulf of Maine dispute. Newfoundland, during the four years of negotiations that culminated in the CanadaEuropean Community long-term fisheries agreement, also actively sought input into the formulation of Canada's policies. In that case, provincial input was minimal, however, largely because Newfoundland's grounds for opposing the agreement differed from those of the fishing industry.3 As a result, government and industry representatives from Newfoundland were unable to present a united front to Ottawa. Canada's maritime provinces were likewise very active at UNCLOS m, particularly during the early years of the Conference. Since Committee Two was the major forum for discussing the limits and nature of coastal state jurisdiction, it was the focus of their attention. Once the provisions for the exclusive economic zone were incorporated into the negotiating texts in 1976, the maritime provinces had less direct involvement in UNCLOS m negotiations, although they continued to monitor efforts to define the outer limits of the continental shelf and to provide for some sharing of the revenues derived from exploiting the resources of the continental shelf beyond 200 miles. Both these issues were settled in 1979. None of the east or west coast provinces ever participated in Committee One discussions, because they dealt with areas beyond national jurisdiction. Only two provinces, Ontario and Manitoba, were actively involved in the deep seabed mining negotiations. Throughout the course of the Conference, regular contacts were maintained between the governments in Ottawa and Toronto. Manitoba, which did not take an active interest in the deep sea-

98 Canada and the International Seabed bed mining issues until 1979, was also kept informed throughout the negotiations, although to a much lesser extent. As mentioned earlier, given the geographic concentration of nickel deposits in Canada, it was not surprising that Ontario, in particular, as well as Manitoba, took an active interest in the deep seabed mining negotiations. Seventy-five percent of Canada's nickel production came from the Inco and Falconbridge Nickel Mines deposits in the Sudbury Basin, while most of the remainder came from Inco's mines at Thompson.4 Copper and cobalt were also important to Ontario, for not only did 13 percent of the copper mined in the Western world originate in that province5 but Sudbury's production of cobalt was the third largest in the world.6 The production of copper and cobalt from the deep seabed was nevertheless not expected to have serious implications for the Ontario mining industry. In aggregate terms, nickel was the most valuable mineral mined in Ontario.7 However, while 90 percent of Ontario's nickel production was exported, much of its copper was consumed domestically.8 For both provinces, the key issues at UNCLOS m pertained to deep seabed mining and the impact it would have on their nickel-mining industries.9 In Ontario and Manitoba, the health of the mining industry had economic and political implications for the governments. It was an important source of tax revenues. A decline in corporate profitability would have led to a reduction in tax receipts. In addition, any change in government policies that affected the health of the mining industry would have influenced voting behaviour in the regions affected. Since nickel mining was geographically concentrated, swings in voting patterns would have affected election results. A decline in the profitability of the nickel-mining industry would also have caused economic dislocation and unemployment. All these conditions would have entailed political and economic costs for the governments. These considerations, expressed to the DBA by both provincial governments, were consistent with the federal-provincial co-ordination of regional development, which dated back to the late 19605. The deep seabed mining issues never involved partisan politics at either the provincial or federal levels. When the Progressive Conservatives took over office from the New Democratic Party in Manitoba, for instance, there was no appreciable difference in the policies on deep seabed mining.10 In Ontario, the deep seabed mining issues are handled by the Mineral Resources Branch. The latter is part of the Mineral Resources Group of the Ontario Ministry of Natural Resources. The Mineral Resource Group is "responsible for encouraging and regulating the orderly development and utilization of the province's mineral resources."11 The key participant from the branch during the UNCLOS m negotiations was its director, Tom Mohide. He received assistance from the supervisor of the Metallic Minerals Sec-

99 Provincial and Municipal Governments

tion, Gerald Anders. In addition to their government experience, both men had had extensive background in the mining industry. They actively participated, therefore, in assessing the technical issues pertaining to deep seabed mining. Officers from the Ministry of Intergovernmental Affairs played a limited role, restricted really to asking Ottawa to keep the Ontario government informed of developments related to deep seabed mining. On several occasions in the latter 19705 and early 19808, Edward Greathed, executive director of the Office of Intergovernmental Affairs, wrote to Howard Weidman, director of the Federal-Provincial Coordination Division, requesting that provincial civil servants be allowed to participate more fully in the policymaking process, given the importance of nickel mining to Ontario. He also reiterated Ontario's position on the nickel production ceiling. At the prompting of the United Steelworkers of America, the Ontario minister of labour and employees of his ministry attended several meetings to discuss the deep seabed mining issues. These meetings involved representatives of the federal and provincial governments as well as the United Steelworkers of America. It was the involvement of the latter which prompted the participation of the official from the Ontario Ministry of Labour. Deep seabed mining offered few benefits to Ontario.12 Even though Inco and Noranda were involved in international consortia, the profits from any joint venture activities had to be shared among the partners. As a result, tax revenues for Ontario were not expected to be very large. In addition, both companies channelled their participation through their American subsidiaries; hence it was doubtful that resulting profits would be redirected back into the province. In contrast to the minimal returns expected from its deep seabed mining, Ontario considered its land-based nickel industry to be of immediate political and economic importance. Early in the federal-provincial consultations on UNCLOS m, Ontario expressed an interest in the impact the Committee One provisions would have on its mining industry. No doubts were expressed as to the competitive position of its nickel-mining industry under free market conditions. Its main concerns were that other countries might encourage their nationals to mine the Area, by offering subsidies and by erecting barriers to market access for their foreign competitors. According to the officers from the Ontario Ministry of Natural Resources, the future growth rate in the demand for nickel was the key factor when calculating the impact of the deep seabed mining provisions on land-based production.13 They considered the forecasts of such bodies as the Club of Rome and UNCTAD to be unrealistically high.14 Since production formulae were based on predicted growth trends, errors in calculations were significant. In periods of low growth in demand, a production floor based on a high

ioo Canada and the International Seabed

growth rate would force land-based producers to cut back production. When the production ceiling was introduced into the Revised Single Negotiating Text in 1976, Ontario's representative, Tom Mohide, joined Canada's "Nickel Team." He, like the officers from DEMR, vehemently opposed the 6 percent figure, on the grounds that it constituted a ceiling on land-based production rather than a floor on seabed mining. Ontario's strong support of the efforts of the Canadian delegation to negotiate an effective nickel production ceiling continued to be its major focus throughout the Conference. Ontario also wanted the Canadian government and the Canadian delegation to allay misconceptions concerning the adequacy of its mineral resources and its reliability as a supplier of metals concerns that had been raised by foreign delegations at the Conference. Throughout the Conference letters were sent from officers in the Ministry of Intergovernmental Affairs to the Legal Operations Division, requesting further consultations between provincial and federal representatives. These officers also asked that Ontario be kept fully informed of any developments on the deep seabed mining issues. The Legal Operations Division generally kept Ontario apprised of relevant developments at home and abroad, although not all the province's requests for involvement were granted. In May 1976, the Ontario Ministry of Intergovernmental Affairs sent a letter asking that provincial representatives be allowed to participate in bilateral consultations with us officials on production policies. The Federal-Provincial Relations Office in Ottawa, while promising to keep the province informed, replied that it was only appropriate to send federal negotiators to this meeting. Although Ontario appeared to have accepted this verdict, Mohide, as a valuable member of the "Nickel Team", did join the federal civil servants from the DEMR for subsequent technical level discussions in Washington. The political and economic importance of the deep seabed mining negotiations for Ontario was evident from the attention they received from the premier, cabinet ministers, members of the provincial legislature, and civil servants. In 1980, after receiving a representation from the United Steelworkers of America, Premier Davis, who strongly supported efforts to negotiate an effective nickel production ceiling, wrote to Prime Minister Clark. He expressed concern over the need to reassure Canadian metal consumers of the security and adequacy of the country's supplies. This correspondence was subsequently tabled in the Ontario Legislature. In fact, several ministers in the Ontario Government wrote to their counterparts in Ottawa concerning deep seabed mining. In July 1977, the minister of natural resources, Frank Miller, wrote to the secretary of state for external affairs, Don Jamieson, expressing interest in Committee One issues. In March 1980, the minister of natural resources, James Auld, wrote to the secretary of state for external affairs, Mark MacGuigan, and to the

ioi

Provincial and Municipal Governments

minister of energy, mines and resources, Marc Lalonde, stressing the need for continued efforts to secure a production ceiling on nickel. He also pledged Ontario's support for such efforts. In addition, federal and provincial cabinet ministers met to discuss Committee One issues. While the individual participants varied from meeting to meeting, attendees included the secretary of state for external affairs, the minister of state for mines, and the Ontario ministers of natural resources, intergovernmental affairs, and labour. In time, members of the legislature from the Liberal and New Democratic parties also became involved. In 1977, a letter was sent from the office of Stuart Smith, leader of the opposition in Ontario, to the Bureau of Legal Affairs, supporting the United Steelworkers of America in their efforts to arrange a meeting with the secretary of state for external affairs. The provincial member for Sudbury, Bud Germa, wrote to Prime Minister Trudeau in 1976, following the introduction of the production ceiling. Germa, a member of the NDP, supported the Sudbury Resolution that had condemned the us formula. Such support indicated that he had either been approached by members of the Sudbury Council or was in close contact with them. The secretary of state for external affairs, Don Jamieson, responded to Germa's letter, explaining the formula and expressing concern about its provisions. Two years later, Germa reiterated his concern to the prime minister. His views were shared by Elie Martel, a fellow NDP MPP for Sudbury East, who wrote to convey similar concerns. Their efforts were prompted by letters sent by Dave Patterson of the United Steelworkers of America, in April 1978, which had discussed deep seabed mining and the possible threat to land-based producers posed by unilateral us legislation. The major provincial involvement with Committee One issues took place on the bureaucratic level. Tom Mohide and the officers in the Legal Operations Division corresponded on a fairly regular basis. In addition to arranging meetings and attendance at UNCLOS m, they discussed the policy directions within each government. Synopses of several of the deep seabed mining discussions held between various government officers and other domestic and foreign actors, were also provided. In October 1979, the director of the Legal Operations Division, Lome Clark, wrote to Mohide briefing him on the nickel-production ceiling talks which the secretary of state for external affairs had had with the us secretary of state during 325 September 1979 meeting. Information regarding a subsequent meeting on the same subject, between the director general of the Bureau of Legal Affairs, Leonard Legault, and the us ambassador, Elliot Richardson, was also included. Copies of some of the letters from the Legal Operations Division to Mohide were sent to Edward Greathed in the Ministry of Intergovernmental Affairs, presumably to indicate the willingness of the former to keep the government of Ontario informed of relevant developments.

102 Canada and the International Seabed Representatives from the Ontario government, particularly Mohide, met on a regular basis with federal civil servants from, primarily, the DEMR and the Legal Operations Division. These meetings were held both in Ottawa and in Toronto. Correspondence on the subject passed between civil servants in both governments. Beginning with the fourth session in 1976, Ontario sent Mohide to UNCLOS m with the Canadian delegation to represent its interests. Mohide was active there in the technical discussions regarding the production ceiling, working with Pasho, Jackson, and Gauvin of the DEMR to negotiate the ad referendum agreement in 1978. He also went with the DEMR representatives to Washington, for technical meetings with their counterparts. In March 1980, officials from the Ontario Ministry of Natural Resources toured Indonesia, Australia, the Philippines, New Zealand, and New Caledonia. In each country, Committee One issues were discussed with government officials, generally those with expertise in some aspect of nickel production. Where possible, meetings were also arranged with representatives of the local mining industries. Prior to the trip, the Legal Operations Division sent briefing notes on deep seabed mining to Larry Grossman, the minister of industry, trade and commerce for Ontario. The government of Ontario not only contributed experts to the law of the sea negotiations, but also produced several publications that assisted the Canadian delegation. In 1977, the Ministry of Natural Resources published a comprehensive background paper entitled Towards a Nickel Policy for the Province of Ontario. This report provided an in-depth analysis of the position of the Ontario nickel-mining industry within Canada and internationally. It also included a section on deep seabed mining and UNCLOS in. Three years later, the Ontario government published a brochure entitled The Future of Nickel and the Law of the Sea. This booklet supported the Canadian position on the nickel-production ceiling, criticizing the proposed floor. A wide range of governmental and nongovernmental actors helped produce this brochure. It was written by officers from the Mineral Resources Branch of the Ontario Ministry of Natural Resources, at the request of the Premier's Office, following a visit to the premier by officials of the United Steelworkers of America. Prior to its publication, Mohide and Anders took the brochure to Ottawa, where it was discussed with members of the Bureau of Legal Affairs and the DEMR. Following the suggestion of the DBA lawyers, excerpts from the Canadian delegation's assessment of the resumed eighth session were included. The following day, 11 January 1980, representatives of Inco and Falconbridge were asked for their comments. Thereafter, the brochure received the approval of the Ontario cabinet and was released. The brochure was designed to serve several purposes. As a brief distributed to members of the United Steelworkers of America, it not only served to outline the deep seabed mining issues but also pointed out the

103 Provincial and Municipal Governments

co-operative actions being taken by the federal and provincial governments to safeguard the interests of Canadian nickel miners. A revised version of the brochure was circulated at UNCLOS m to assist the Canadian delegation in its efforts to win support for its position on the production ceiling. The brochure was also used during bilateral talks with us officials in Washington in January iQSo.15 In addition, the Ontario Ministry of Natural Resources produced a series of publications on various aspects of mining. One such report dealt with forecasting. In December 1981, because the nickel predictions were considered to be useful for the Canadian delegation, the office of the undersecretary of state for external affairs wrote to the deputy minister of natural resources, requesting three copies of the report. The Ontario government was involved earlier and more intensively than the government of Manitoba in the process of formulating Canada's policies on deep seabed mining. Several factors help to explain this difference of involvement. At that time, nickel mining in Canada was largely concentrated in Ontario. In 1976, nickel production in Ontario was valued at $932 million,16 as compared to $264.9 million17 in Manitoba. Other actors with similar interests were already involved with the deep seabed mining issues. These included the government of Ontario; the United Steelworkers of America, which represented the interests of Canadian nickel miners; Inco, which was the major producer of nickel in both Manitoba and Ontario; and the Mining Association of Canada. The participation of all these actors enabled the government of Manitoba to justify taking a more passive role.18 Like Ontario, Manitoba's interests at UNCLOS m were confined to Committee One. Its involvement with the deep seabed mining issues was prompted by external pressures. In almost all cases, officials in the Manitoba government became involved only after they had received representations from the United Steelworkers of America or federal civil servants. In September 1973, representatives of several federal departments, including the DEA and DEMR, met with officials from Manitoba and British Columbia to brief them on the law of the sea issues. Yet apart from one request in 1976 for information concerning the production ceiling, Manitoba's active involvement with deep seabed mining was to date from 1979. In the autumn of that year, representatives of the United Steelworkers of America presented a brief to Manitoban Premier Stirling Lyon, strongly urging that his government take action to support the federal position on the production ceiling. This visit prompted the premier to write to the secretary of state for external affairs, Flora MacDonald, expressing concerns similar to those already voiced by Ontario. During his tour of Australia in December 1979, Premier Lyon expressed his worry regarding the possible negative impact that deep seabed mining might have on the Australian and Canadian nickel mining industries. These

104 Canada and the International Seabed

views were expressed during a television interview on December 3rd and during meetings with the deputy prime minister of Australia. Premier Lyon urged Australia to work with Canada at UNCLOS m to ensure that production from the Area was adequately regulated. Early in 1980, representatives from the DEA and DEMR briefed officials in the Manitoba government on the Committee One negotiations and enlisted their support. Subsequently, Minister of Energy and Mines Donald Craik wrote to Secretary of State for External Affairs Mark MacGuigan, expressing concerns about the production floor. In 1980, Sobharam Singh, was sent to UNCLOS m's ninth session as the province's first member of the Canadian delegation. Singh, senior advisor for the Manitoba Department of Energy and Mines and a geological expert, subsequently represented the province at all remaining sessions. Because Ontario and Manitoba shared similar positions on the deep seabed mining issues, Mohide and Singh worked together closely. In addition to their co-operative efforts at the Conference, they consulted each other from time to time. The activities of the federal and provincial governments in this case were complementary and mutually reinforcing. Co-operation in the realm of foreign policy has generally been the norm in federal-provincial relations,19 and, just as was seen in our study, Ontario has traditionally been more active in external affairs than Manitoba. MUNICIPAL GOVERNMENTS

Only those communities in which the United Steelworkers of America were active or in which Inco had mining operations showed any interest in the deep seabed mining negotiations. The most active Canadian municipal governments, therefore, were those of Sudbury and Thompson, both of which were highly dependent on the nickel industry for their survival. Even there, involvement for the most part was minimal. In May 1976, the mayor of Sudbury sent a resolution originating with the municipal governments of Sudbury, Thompson, Port Colborne, and Lac Edouard to Prime Minister Trudeau, expressing serious concerns over the production ceiling in the Revised Single Negotiating Text. The clerk of Parry Sound wrote to the prime minister in June 1976 in support of that resolution. The only other period of municipal involvement occurred in 1980, when politicians from Sudbury and Thompson attended the conference on the law of the sea organized by the United Steelworkers of America. In the fall of the same year, however, an article in Northern Life (24 September 1980) triggered several exchanges between federal and municipal officials. Members of the Sudbury Regional Council, for example, concluded that deep seabed mining posed a very serious threat and that the Canadian delegation was not doing enough to protect the interests of the Canadian

105 Provincial and Municipal Governments

nickel mining industry. In November 1980, Beesley wrote to the mayor of Sudbury, requesting a meeting to clear up the misunderstanding. The minister of state for mines sent a similar letter to the manager of the Sudbury Chamber of Commerce. A meeting held 5 January 1981 with representatives from the Canadian delegation appeared to alleviate many of the fears in Sudbury. No further concerns were expressed by the municipal government. Given the importance of nickel mining to Sudbury and Thompson, one might wonder why their municipal governments' involvement was so minimal. The answer is that their interests were already well represented, both in Ottawa and on the Canadian delegation, by the governments of Ontario and Manitoba and the United Steelworkers of America. More importantly, federal policies were already in accordance with the demands of the municipal governments, in as much as the latter were only advocating a continuation of policies already being pursued. Although municipal involvement was minimal, it contributed additional support to the dominant coalition in Ottawa. Federal officials cited the concerns of the municipal governments, especially those of Sudbury, as further justification for allocating resources to the nickel production ceiling.

CHAPTER SIX

Nongovernmental Actors

Not surprisingly, both business and organized labour lobbied to influence Canada's position on deep seabed mining. What was surprising was the result: Canada's policies reflected the priorities of organized labour rather than those of the business sector. It is a trend that is frequently alleged to be otherwise.' On the other hand, neither the lobbying efforts of labour unions nor those of business organizations determined the policy outcome, for the major battles were fought and won within the civil service. The bargaining strength of these two groups' respective allies within the federal civil service was thus the key determinant as to which group's interest would receive priority in Canada's policies on deep seabed mining. Nevertheless, the interests, perceptions, priorities, influence, and tactics of labour unions, mining companies, and business organizations offer fascinating points of contrast and comparison. They also accentuate the place of nongovernmental, as opposed to state, decision makers in this aspect of Canada's external affairs. LABOUR UNIONS

The labour unions were actively involved with Canada's policies on deep seabed mining at UNCLOS ra. The principal representative of the Canadian nickel miners was the United Steelworkers of America, the biggest and most influential international union in Canada.2 In 1965, the United Steelworkers of America had emerged triumphant after a long jurisdictional battle with a second union that represented nickel miners in the Sudbury region - the Mine, Mill and Smelter Workers Union. Local 598 of the Mine, Mill and Smelter Workers did, however, continue to represent the workers at Falconbridge's Sudbury operations. Nevertheless, its involvement in the policymaking process was limited to one letter, written in 1976, in which its president, Emile Prudhomme, requested information from Crosby about

icy

Nongovernmental Actors

developments at UNCLOS in. Almost by default, therefore, the only significant union participation came from the United Steelworkers of America (USWA). United Steelworkers of America Most of the formal contact between the federal government and the USWA was conducted from the union's Canadian headquarters in Toronto, although local branches of the USWA operated in Sudbury and Thompson. The executives of Local 6500 in Sudbury were also significant participants, through their work in the region and through representations to all levels of government. There is some confusion as to how the union members actually became involved. Several federal civil servants contend that Beesley and Crosby contacted the USWA, after Canada had introduced its nickel-production ceiling at UNCLOS in, with the express purpose of building domestic support for the proposal.3 Union officers, however, claim that they made the initial contact. Evidence from the files supports the contention of the latter. Be that as it may, in July 1977, the Director of the USWA, Stewart Cookes, wrote to the secretary of state for external affairs, Donald Jamieson, requesting that the union be represented on the Canadian delegation to UNCLOS m. The following month, Jamieson received a letter from Dave Patterson, president of Local 6500 of the USWA, requesting a meeting. Patterson criticized the federal government for not including the union or the Sudbury mining community in previous discussions regarding Committee One. Jamieson replied to Cooke's letter, agreeing that the USWA should participate on the Canadian delegation to UNCLOS m. Following a second letter from Patterson in October 1977, Jamieson invited officials of the USWA and representatives of Sudbury to a meeting with officers from the DBA. These letters marked the beginning of a regular exchange of correspondence concerning the deep seabed mining issues between federal government actors and executives of the union, both in Sudbury and in its Toronto headquarters. Union representatives met regularly with members of ICLOS and participated on the Canadian delegation for the remainder of the Conference. The secretary of state for external affairs did, however, include one proviso with regard to delegation membership: the delegates sent by USWA had to represent the interests of all nickel miners in Canada, not just its own membership. This ruling meant that the individuals chosen had to be acceptable to the United Mine Workers as well as to the Mine, Mill and Smelter Workers. Both these unions, although considerably smaller than the USWA, also represented nickel miners in Canada. The Committee One negotiations on the production ceiling came at a

io8 Canada and the International Seabed

time when the USWA already had concerns about the health of the Canadian nickel industry and the economic well-being of its members. In 1976, there had been a downturn in the world demand for nickel. Previous fluctuations in world consumption had had no serious effects on the jobs of Canadian nickel miners, inasmuch as Inco and Falconbridge had simply produced at a steady rate and stockpiled the minerals during periods of low demand. As a result, no lay-offs had occurred in Sudbury in the past twentyfive years.4 But the downturn in 1976 continued, to the point where Inco had some fourteen months' supply of nickel stockpiled. In 1977, the company accordingly announced that it would be laying off 2,000 workers.5 These developments coincided with the coming into production of Inco's mines in Indonesia and Guatemala. The USWA, concerned that deep seabed mining could pose an additional threat to the international market for Canadian nickel, decided to become involved with the law of the sea negotiations. It hoped to ensure that deep seabed mining would be phased in at a pace consistent not only with the growth rate of consumption but with the ability of the world to absorb new sources of supply. The USWA'S only direct concerns at UNCLOS m were the provisions to regulate deep seabed mining. It was willing to accept the Canada-United States ad referendum formula as a compromise position, although it had reservations concerning several implications for land-based miners. One of its principal concerns, for example, was the five-year build-up period. That build-up, it argued, would cause serious cut-backs in land-based production when deep seabed production came on stream. This, in turn, would result in the laying off of workers. Because of the time needed to organize financing and to build ships and refineries, the USWA estimated that there would be a five-year lag between a company's application for a mining licence and the actual commencement of production. Furthermore, the formula's assessment of the tonnage to be allocated to a deep seabed operation was based on a trend line that reflected the growth of world nickel consumption from the latest available data (which could have been one or two years out of date) and for fifteen years before that. The USWA contended that, according to the Canada-United States agreement, all the increased growth would be awarded the seabed miners during the first five years. It argued, however, that, because of the time lag, land-based miners would be supplying world markets for the first five years after the licenses were granted, and that, at the end of that five-year period, seabed miners would be allowed to bring all the tonnage allocated to them on stream. Cut-backs in land-based production would result. The USWA contended, further, that the laterite producers in developing countries would likely be harder hit than Canada's more economically viable sulphidic miners, although there was no guarantee of this. Nonetheless, while the USWA said it might have pre-

109 Nongovernmental Actors

ferred a shorter build-up period, it admitted that it would be prepared to accept a longer period in return for the support of potential seabed miners for the production ceiling. Of far greater concern to the union representatives was the introduction of a 3 percent production floor. They, like other members of the Canadian delegation, argued that this figure was too high and that, in periods of low growth, it would permit a level of production from the Area seabed mining that the market could not accommodate. The 3 percent floor, they felt, only compounded the deleterious effect of thefive-year%build-upperiod, making the amount to be allocated to seabed mining artificially large. While not enthusiastic about the concept of a production floor, the union representatives would nevertheless have been willing to accept a i .5 or 2 percent floor as a compromise. The USWA thus shared the priorities of the Legal Operations Division and the DEMR. It supported Ottawa's efforts to introduce anti-subsidization and fair market access clauses into the Conference texts. Given the problem of administering such provisions, however, its primary focus was the inclusion of an effective nickel-production ceiling. The union officials also argued that an international treaty was the best way to regulate activities in the Area, for it would safeguard the interests of the land-based producers. During a meeting with federal civil servants in 1980, however, officials of the USWA pointed out that they would lobby strongly against Canada's signing of a law of the sea convention if its provisions did not adequately reflect their interests. The USWA pursued its objectives through several channels. First, its representatives sat on the Canadian delegation. Second, union officials conveyed their views and elicited support for their positions in written correspondence with cabinet members, members of Parliament, and civil servants within the federal government. They also attended numerous meetings with officials of several federal departments, some of which involved representatives of the governments of Ontario and Manitoba as well as mining companies and business organizations. These meetings, in addition to providing ICLOS members with the opportunity to brief other officials on developments pertaining to Committee One and the direction of Canada's policies in this area, also enabled representatives of the USWA to present the views of their membership. The USWA attached considerable importance to these meetings. At times it sent its national director, Gerard Docquier, although it usually was represented by Burt Munro and Paul Lepage, both of whom had served on the Canadian delegations to UNCLOS m. The number of union representatives sent to these meetings was significant. On 12 February 1980, twentytwo union officials attended a meeting in Ottawa to discuss the law of the

no

Canada and the International Seabed

sea. Also in attendance were members of ICLOS, cabinet ministers, and civil servants from Ontario and Manitoba. The labour participants included officers from union headquarters in Toronto as well as representatives of union locals in Sudbury, Thompson, Port Colbourne, and Shebandowan. Officials from the USWA were active participants, with governmental and other nongovernmental actors, in meetings dealing with deep seabed mining issues. There, with the encouragement of the DBA lawyers, they frequently led the fight in advocating that Canada's priority in Committee One continue to be the negotiation of an effective production ceiling. The officials of the USWA participating in these consultations on the law of the sea reported back to the union executives in Sudbury and Thompson so that the membership could be kept informed of all relevant developments. Since union officials were participating in the decisionmaking process, most Canadian nickel miners thought their interests were being adequately represented. They did not seek any other form of input. From 27 February to i March 1980, Local 6500 of the USWA held a conference in Sudbury on "Seabed Versus Land-based Mining - the Future." The conference was attended by Judy Erola, minister of state for mines, Alan Beesley, and other officials of the federal government. Mine workers representing union locals in Sudbury, Thompson, Port Colbourne, and Shebandowan participated, as did officials for the Ontario government, the Sudbury Regional Council, Inco, and Falconbridge. The conference served as a forum for the exchange of views and the development of a greater awareness. After explaining the position of the Canadian government, representatives from ICLOS asked for a response from those in attendance. Local 6500 presented a resolution supporting the position taken by the Canadian government and urged it to continue its efforts to eliminate the floor. Ontario, Manitoba, and members of the Sudbury Council all agreed with this position. Their support gave credibility to the federal policy, while their unanimity gave legitimacy to their position. The conference may have been planned to coincide with the union elections. Certainly, it provided a forum in which union executives could demonstrate their concern for the economic livelihood of their members, as well as their commitment to ensuring that UNCLOS m provisions regarding deep seabed mining did not pose a threat to the jobs of Canadian nickel miners. As discussed in chapter 5, the USWA also made representations to the governments of Ontario and Manitoba. Union officials contacted provincial cabinet ministers, MPPS, and civil servants to elicit their support. They urged those contacted to encourage the federal government to continue its efforts on the nickel production ceiling at UNCLOS m. Officers of the USWA pursued similar objectives when contacting the nickel mining communities' municipal government members. In addition,

111 Nongovernmental Actors

they discussed the deep seabed mining issues in meetings with officials from local unions at Inco and Falconbridge. Canada was the only country with labour organization representatives on its delegation. Officials of the USWA, especially Munro, worked to get other unions interested in the UNCLOS m negotiations. They made contacts with union locals in the United States. In 1979, the USWA even held a twoday conference in Florida to discuss nickel problems. Its concerns pertaining to the law of the sea were not shared by u.s. locals of the USWA however, because the United States did not have a land-based nickel mining industry. In 1980 Munro also met privately with the International Secretary of the USWA. Although Munro found these American executives sympathetic, he realized that they were devoted to the welfare of workers in their own country and hence unwilling to join in his crusade.6 The USWA did not have contacts with nickel miners in Indonesia and Guatemala, because neither had labour unions with which it could communicate. It did, however, have contacts with the union representing workers at Falconbridge's mine in the Dominican Republic. The latter union requested information from Local 6500 on the deep seabed mining negotiations on several occasions, but never became actively involved. Representatives of the USWA tried to create support for their position among other unions abroad. When, in 1978, the education officers of the Amalgamated Metal Workers and Shipwrights Union of Australia visited Local 6500 in Toronto, Munro discussed the importance of the issues under negotiation in Committee One to all nickel miners in both Canada and Australia. The objective of the discussion was to prompt the Australian union to lobby its government to come out strongly in favour of the nickel production ceiling.7 Up to this point, the Australian delegation to UNCLOS m had not seen a need for a production ceiling. Nevertheless, although Munro suggested that the officers of the amalgamated Metal Workers and Shipwrights Union further explore the issues with Alan Beesley, who was posted to Canberra at the time, no contact was made. During a trip to Norway, Sweden, and Finland, Munro spoke to members of each government's delegation to UNCLOS ni and to labour unions in each country. The unions in the three countries claimed to have been unaware of the importance of the law of the sea issues, but assured Munro that they would become involved.8 The government officials even stated that they were willing to have union representatives on their respective delegations.9 Despite these assurances, no union representatives ever joined the delegations of Norway, Sweden, or Finland. Clearly, the unions did not consider the law of the sea issues sufficiently important to warrant sending representatives. Of the three Scandinavian countries, only Finland produced nickel. Representatives of the USWA also sought to enlist support for Canada's position on the production ceiling in meetings with union delegates from

ii2

Canada and the International Seabed

Japan, the USSR, New Caledonia, and the International Metal Workers Federation in Geneva. But a staunch ally was not to be found. Although the Bureau of Legal Affairs did not provide travel funds to assist the USWA in lobbying unions in other countries, it strongly supported such efforts. In May 1980, officers in the bureau provided the USWA with an overview of the deep seabed mining issues and the negotiations at UNCLOS in, to aid its representatives in their discussions with their counterparts in other countries. BUSINESS SECTOR

Within the Canadian business community, there were four principal actors involved in the issues pertaining to deep seabed mining: Inco Limited, Noranda Mines Limited, the Mining Association of Canada (MAC), and the Canadian Business and Industry International Advisory Committee (CBIIAC).10 Other mining companies, such as Falconbridge Nickel Mines Limited and Sherritt Gordon Mines Limited, channelled their concerns through the MAC rather than approaching the federal government directly. There was a good deal of interlinkage between the mining companies and business associations, as well as among the business organizations. Inco and Noranda were members of MAC and were also involved in CBIIAC. The MAC sent a participant to CBHAC'S meetings. The companies and business organizations all used individual and co-operative approaches in order to convey their concerns to the federal government. While they shared a general business perspective, there was a good deal of variation in the range of their interests, the periods of their involvement, and the tactics and access points they used. Inco and Noranda, for instance, were active from the beginning of the UNCLOS ra negotiations. In 1972 Inco presented a paper to the DBA, outlining its views on deep seabed mining. Noranda presented its recommendations to the House of Commons Standing Committee on External Affairs and National Defence in 1974, prior to the first substantive session of the Conference. Both companies had fairly wide interests relating to their positions as both land-based producers and partners in consortia exploring the feasibility of deep seabed mining. In contrast, CBIIAC'S overriding concern vis-a-vis the UNCLOS m negotiations was the transfer of technology provisions, and that had only been brought to its attention in September 1980. Because the provisions were considered serious threats to the interests of private enterprise, CBIIAC lost no time in presenting its views to the Canadian government, both in written form and orally at meetings with federal department representatives. In addition to these access points, the MAC had a representative on the Canadian delegation to UNCLOS ra throughout the Conference. There was also a certain amount of personnel movement among specialist departments and between these departments and the private sector. This

ii3

Nongovernmental Actors

trend is best exemplified by Bob Keyes who, in the course of the UNCLOS m negotiations, worked for the DEMR, the DOF, and subsequently with the MAC in 1980. While with MAC, he served on the Canadian delegation to UNCLOS in. In 1982, Keyes returned to the DEMR. In the same year, Gordon Peeling also returned to DEMR, after spending several years working for Inco. Such lateral movement was especially prevalent between DEMR and the private sector at the middle management level. The resulting career paths facilitated the formation of informal communications networks. For example, when Keyes represented the MAC on the Canadian delegation, he retained his contacts in the DOF. Through such overlap, he and his former colleagues were better able to brief their business sector allies. The Mining Companies The two Canadian companies most involved with Committee One matters were Inco11 and Noranda Mines. Because their Canadian mining operations focused on different metals, their positions as land-based producers were rather different. As potential miners of the deep seabed, however, they shared many similarities. Both companies gave highest priority to their respective mining operations in Canada. Noranda, for instance, produces 65 percent of the refined copper in Canada, making it the largest producer in the country.12 It is also oriented toward export sales. In addition to its copper production, Noranda owns the largest cobalt deposits in the United States, located in Idaho.13 As discussed in chapter 2, deep seabed production conducted under free market conditions was never viewed as a serious threat to land-based copper producers. As a result, Noranda's only real involvement with the Committee One issues resulted from its interest as a potential deep seabed miner. In contrast, Inco's principal interests at the UNCLOS m negotiations stemmed from its position as the world's largest producer and marketer of nickel.14 It also produces substantial amounts of copper and some cobalt. Inco's Canadian nickel mining operations are located around Sudbury, Ontario, and Thompson, Manitoba. It leads the field in metallurgical expertise, especially in processing. Although the sulphidic ore in the Sudbury basin was Inco's single most valuable asset,15 it also had nickel mining operations outside Canada. It began to mine laterite nickel deposits in Indonesia in 1973, extending operations into Guatemala in 1975. These mines were designed to produce capacities of approximately 22 and 6 percent respectively, of Inco's total production capacity in Canada. Hence these capacities were designed really to supplement, not replace, the company's mines in Sudbury and Thompson.16 By 1979 Inco's mines in Indonesia and Guatemala were not producing at even one-half their capacity.17 Despite the potential threat that deep seabed mining could have posed,

ii4

Canada and the International Seabed

particularly for laterite production, Inco never advocated quantitative restrictions. It was leery of measures that interfered with the free operation of international market forces, such as national subsidies that could nullify its competitive advantage. Since its domestic consumption was relatively small, Inco was heavily dependent on foreign markets for its products. It exported most of its nickel production, 50 percent of it going to the United States.18 Inco's Indonesian mine was designed to supply Japanese markets, and therefore would have been affected by Japan's subsidization of its own deep seabed mining ventures. However, Inco's primary emphasis in Canada was always on its nickel operation. Although Inco relied heavily on its exports, it did not perceive deep seabed mining as a threat to its land-based mining operations, as long as free market forces were allowed to prevail internationally. According to Inco, its Canadian nickel production was the most economically viable in the world, because of its advanced technology and good sulphidic resources.19 As a land-based producer, its principal concern with deep seabed mining was that some countries might subsidize the deep seabed mining of their nationals.20 This fear was made all the more real by the fact that certain countries, such as Cuba, the USSR, and France in New Caledonia, were already subsidizing their own land-based operations. Throughout UNCLOS m, Inco advocated free market competition. Never, therefore, did it support the idea of a production ceiling, on the grounds that such a ceiling was unnecessary as long as there was no subsidization. But Inco also opposed the concept of the production floor, on the grounds that it would hurt land-based producers by setting a figure higher than actual consumption. Both Inco and Noranda had been skeptical about the Club of Rome's predictions of future resource scarcities. Both companies contended that extensive Canadian resources and reserves of nickel, copper, and cobalt existed and that increases in the price of metals would provide the requisite economic incentives to develop new resources. As a result, they did not view deep seabed mining as being essential in the short-run, or even the mediumterm, to meeting world demand for the metals contained in manganese nodules. Neither company expected deep seabed mining to become an economically viable alternative to land-based production before the turn of the century. However, given the potential of the resources of the Area, each company decided to become a member of an international consortium so that it could then participate in deep seabed mining if that proved to be economically feasible. In 1975, Inco took a 25 percent share in Ocean Management Incorporated, which had its headquarters in Washington. Noranda subsequently took a 10 percent interest in the Kennecott Joint Venture, based in Kennecott's New York head office, largely because of its interest in copper. Both

115 Nongovernmental Actors

consortia focused on exploring the feasibility of mining the deep seabed, in addition to developing the necessary technology. They had great hopes, initially, for the economic viability of deep seabed mining, and large investments were made. But this optimism diminished in the latter 19705, as gluts emerged on the world metal markets and commercial exploitation of the Area receded into the distant future. The consortia, as a result, reduced their budgets. Inco and Noranda had two principal goals pertaining to the UNCLOS in negotiations: to ensure free market access for all producers; and to obtain an international agreement to regulate activities in the Area. Free market access meant no subsidization and no market barriers. If this could be guaranteed, a nickel-production ceiling would be unnecessary. The most secure way for a company to mine the Area was under an international treaty, one that recognized the company's right to develop such resources and that set up a regime overseeing the licensing of claims. Having the legal sanction of the international community not only minimized the risks inherent to exploiting manganese nodules but facilitated the attainment of the necessary financial backing. Moreover, having an international body to license claims would ensure a more orderly development of the seabed. These considerations were very important to the consortia members, for they had made huge investments in the development of the technology with which to mine the deep seabed and much larger investments were in store if the deep seabed mining was actually to begin. For all these reasons, Inco and Noranda favoured the establishment of an international regime that would recognize the right of private corporations to explore and exploit the resources of the Area. To realize this objective, the companies were willing to make certain concessions. They agreed that some of the revenue accruing from the exploitation of the resources of the Area should go to ISA. The key questions concerned the amount of taxes that should be paid and to whom they should be paid. In the case of the former, the companies were willing to pay a license fee for exploiting the resources of the Area (although not for the exploration stage, during which they would not be earning any revenue). They advocated, further, that tax rates should be set at levels that would ensure a sufficient rate of return for private developers; in effect the risks and huge investments made in the exploration for and exploitation of manganese nodules needed justification. The companies generally preferred to pay taxes to their own governments which, in turn, would forward a portion of this revenue to the ISA. This system permitted the companies to view their taxes in terms of the overall profit picture and, hence, to use some of their least lucrative operations to offset profits in other areas. A second consideration for the companies was the fact that developments at the United Nations were beyond their control. They feared having no

116 Canada and the International Seabed

recourse once aggrieved by decisions made by the assembly of the ISA, the majority of which was comprised of developing countries. In many cases, the interests of the latter were incompatible with those of private enterprise. The developing countries wanted the ISA to have the powers to collect taxes directly. Any other system, they argued, would only profit the rich, leaving them but a small role. There were other areas where the views of the two sectors - the private and those of the Group of 77 - were in conflict. Inco and Noranda opposed measures giving the Enterprise special privileges and immunities. They also opposed any mandatory transfer of technology. Given the high cost and risks involved in developing technology, they wanted some safeguard for their investments. The transfer of technology provisions in the law of the sea texts were criticized, because they had not clearly defined the phrase "fair and equitable terms" as it applied to the conditions under which transfers were to take place. They further contended that giving the Enterprise the discretion to withhold mine sites, if technology transfers were not made, actually made the transfers mandatory. Representation in the key organs of the ISA was a further concern for the companies. They endorsed Canadian and American membership on the Council of the ISA because such countries were considered sympathetic to their corporate welfare. Membership in the International Tribunal was also important, since its Sea-Bed Disputes Chamber could handle conflicts arising out of activities in the Area. Although Inco and Noranda favoured having deep seabed mining take place under an international regime, they were willing to consider other options if an acceptable agreement could not be reached. Their second choice was to have a multilateral agreement among the countries with the financial and technological capabilities to develop the Area resources. Such an agreement would be possible if each participating country passed its own legislation for regulating its own companies. Unilateral legislation was viewed not only as a fall-back position, but as a means of exerting pressure on the Group of 77 at UNCLOS m so as to bring about compromises. It was viewed primarily as a tactic, rather than an end in itself, for everyone realized that if unilateral legislation was opposed by most countries, only limited protection could be offered to operators in the international Area. Although Inco and Noranda shared many interests as potential miners of the deep seabed, there was little direct intercommunication on these matters.21 Several possible explanations may account for this lack of contact. First, both companies channelled a significant amount of their activities through the Mining Association of Canada and hence, to a large extent, relied on that organization to represent their common interests. While each gave priority to its mining operations in Canada, neither was particularly concerned about pressuring the federal government to protect

ii7

Nongovernmental Actors

these land-based mines. The companies differed significantly in many respects, both in terms of the size and location of their operations, as well as the nature of their products. On the other hand, as potential deep seabed miners, Inco and Noranda shared several concerns, especially the transfer of technology. Here again, the extent to which the two companies were involved in deep seabed mining varied considerably. Inco was more active in this area. The production ceiling was based on nickel and, as a nickelproducing company, Inco was more directly affected than Noranda, a copper-producing company. Inco also had a larger stake in the Ocean Management consortium than Noranda had in the Kennecott Joint Venture. In addition to relying on the Mining Association of Canada, Inco and Noranda approached the federal government independently. The nature of their relationships with governmental decision-makers, as well as their strategies, differed considerably. Noranda's relations with the federal government were less consistent, less intense, and less personal than those of Inco. Furthermore, each member of the Kennecott Joint Venture was responsible for lobbying its own government. Both the American and the British companies actively tried to get their respective governments to take sympathetic stands. On 25 February 1974, Noranda presented a brief before the House of Commons Standing Committee on External Affairs and National Defence, outlining the company's position.22 Its concerns focused on gaining access to the resources of the Area and protection for the private entities investing in the deep seabed mining operations. When the federal election was called and the House of Commons dissolved, Noranda's plans to appear a second time before the committee were cancelled. Noranda attended some of the Committee One meetings subsequently held between representatives of government and business. A few letters passed between company executives and officers in the federal government. But, overall, Noranda did relatively little lobbying on the law of the sea issues, largely because they were not a major priority for the company's executive, especially in the latter 1970S.23 In fact, the company's presentation to the House of Commons Committee hearings, and its subsequent participation in a few consultations with members of ICLOS, appeared to have been prompted by federal government officials. Several of the other partners in the Kennecott Joint Venture lobbied their respective governments much more actively. For example, in February 1981, a letter was sent to Noranda, from the Rio Tinto Zinc Corporation Limited in London, advocating that Noranda take a more active role in lobbying the Canadian government to have production controls deleted. It did not, however, appear to trigger any significant action on the part of Noranda. In fact, Noranda was always skeptical about the possibility of UNCLOS in producing a treaty generally acceptable to the international community as a whole. Only once, in fact, did Noranda send an observer to UNCLOS in.

118 Canada and the International Seabed

In general, it tended to regard such an allocation of personnel as a waste of time, energy, and money.24 This view was not shared by all of the companies in the Kennecott Joint Venture. Some of the British partners sent representatives to all sessions. Throughout the UNCLOS m negotiations, Inco maintained relatively close relations with the federal government. The company's expertise in the whole process of nickel production and marketing was useful to Canadian policy makers, in terms of drafting and assessing proposals for production policies. Furthermore, in the 19705, Inco was much more in the public eye than Noranda, thanks to the negative press coverage of its inept handling of its operations in Indonesia and Guatemala, its workers' prolonged strike in Sudbury, its pollution of the atmosphere, and its general financial situation. It was to its advantage, therefore, to take a more active role, in the hope of improving relations with the federal and provincial governments. Meetings were held and regular correspondence maintained between officers of the federal government and Inco. Each tried to keep the other apprised of relevant developments. Beesley and Alfred P. Statham, the vice president of Inco Incorporated, enjoyed a close working relationship. Letters passed back and forth between the two men and they socialized together from time to time. One of Beesley's colleagues actually complained that because Beesley and Statham met in private, no one knew what they actually discussed or agreed to. Crosby also participated in some of the meetings, but other DEA lawyers were not included. Then, in 1981, Statham, an American from Georgia, was succeeded by a Canadian, Charles F. Hews. Hews and Keith O'Brien, director of government affairs for Inco, developed more open relations with the Bureau of Legal Affairs. In addition Inco was sending observers to portions of some of the sessions of UNCLOS m, although it was not formally represented on the Canadian delegation. Despite this communications network and the fact that the relationship was, to some extent, symbiotic, each side was well aware of its limitations. For example, whereas Inco did not support quantitative restrictions, one of the Canadian government's major goals was to secure an effective nickel production ceiling. Inco was careful therefore not to denounce the concept in public. On the other hand, officers within the Canadian government were well aware of the fact that Inco might decide to file a claim under the u.s. deep seabed mining legislation, given the fact that several memoranda had circulated in the Legal Operations Division to this effect. It was clear that if Inco did file a claim and the Group of 77 perceived that the company enjoyed close relations with the Canadian government, the latter could question Canada's commitment to the common heritage of mankind and the protection of land-based producing countries. Federal decision makers valued

ii9

Nongovernmental Actors

the information, particularly the technical expertise, provided by Inco, but they did not want to be seen to be too closely linked with the company. The involvement of Inco and Noranda on the deep seabed mining issues was not limited to the Canadian setting. The consortium partners met regularly to discuss the issues and developments relative to their common interests. For example, the Kennecott partners had an agreement to share information on deep seabed mining. Written statements and briefs on UNCLOS m as well as strategies for policy input were circulated. This practice helped each company to keep abreast of developments and to affect policy directions in their respective countries. It caused embarrassment for Canada, however, when, in 1981, Noranda sent a brief it had received from the MAC to Rio Tinto Zinc. The latter passed it on to the British government, and the report was subsequently circulated at UNCLOS in by those delegations opposing quantitative restrictions. The MAC brief criticized certain aspects of Canada's policies in Committee One, particularly the priority given to the production ceiling and the inadequate attention given to the transfer of technology. MAC'S criticism made the Canadian delegation appear to be divided. It was also interpreted as proof that the delegation was not seriously committed to the economic well-being of other land-based producers. While the circulation of the brief at the Conference did not have any long-term effects, it did make it harder at the next session for the Canadian delegation to convince other land-based producers that they should oppose the provisions for compensatory financing and work for an effective production ceiling. Statham and other Inco officials worked to maintain relations with u.s. officials, including Secretary of State Elliott Richardson. At times, Inco wrote papers at the request of the u.s. administration, outlining the company's positions on the issues under negotiation in Committee One and sharing technical information. Following a request by Richardson, employees of Inco's Government Affairs and Market Research Divisions in Toronto produced a study critically assessing the impact which the floor would have on the nickel supply. Inco officials shared some of the contents of the correspondence and oral discussions they had with American officials, with the DBA lawyers. Inco may also have shared information regarding some of its dealings with the Canadian government, with its contacts in the u.s. administration. In 1980, Noranda put considerable effort into lobbying the u.s. government for a domestic floor on cobalt.25 The company argued that, rather than depend on Zaire, the government should be willing to pay a premium to secure a domestic source. While Noranda was one of the principal players in the cobalt debates in the United States, it did not pursue a similar tack with regard to deep seabed mining. This was largely due to the timing:

120 Canada and the International Seabed

during the period when Noranda was actively involved in the cobalt debates, the activity of the Kennecott consortium was winding down.26 In the late 19705, Noranda switched its interests in deep seabed mining to its wholly owned American subsidiary Noranda Explorations. Noranda wanted to take advantage of u.s. legislation that permitted American companies to apply for licenses. On 26 January 1982, Kennecott submitted an application for an exploration license, under the Deep Seabed Hard Mineral Resources Act, for 150,000 square kilometers in the ClarionClipperton zone in the North Pacific.27 Noranda Explorations had a 12 percent interest in this venture.28 Inco's participation in the Ocean Management consortium tended to be channelled through its American subsidiary, Inco United States, which was also qualified to apply under the u.s. legislation. In 1979, Alfred Statham, vice president of Inco Limited, appeared before the u.s. Senate's Committee on Foreign Relations, representing the interests of both the parent and subsidiary companies. Both companies participated in the consortia through their American subsidiaries. Falconbridge Nickel Mines, the second largest producer of nickel in Canada and also involved in the mining, smelting, and refining of copper and cobalt, shared Inco's perspective as a land-based producer. Its operations, small compared to those of Inco, were located in the Sudbury basin, although it also had smaller operations in Mainbridge, Manitoba. In 1973, Falconbridge's output accounted for approximately 16 percent of nickel production in Canada, while Inco contributed about 81 percent. Falconbridge opposed the production floor and the provisions to transfer technology, particulary those pertaining to processing. It also advocated Canadian membership in the key organs of the ISA, so as to ensure a voice for Canadian interests. Representatives of Falconbridge participated in meetings with government officials on the law of the sea issues both in Ottawa and Sudbury. In 1981, the president and chief executive officer of Falconbridge, Howard Berry, wrote to the secretary of state for external affairs, expressing his company's concerns with the production floor and the transfer of technology provisions. At the same time, he commended the Canadian delegation for its work at UNCLOS m. Copies of Berry's letter were sent to Ministers Erola, Gray, MacEachen, and Roberts as well as to Ambassador Beesley. Apart from this correspondence and participation in several meetings with federal civil servants, Falconbridge was not active in the formulation of Canada's policies on the deep seabed mining. It tended to channel its concerns through MAC and to let Inco take the lead. Sherritt Gordon Mines had even less involvement with the deep seabed mining issues. It had one nickel mine at Lynn Lake, Manitoba, that also produced some copper and cobalt. Sherritt Gordon's operations focused

121 Nongovernmental Actors

on the processing of minerals, rather than on primary production. As a result, the company's major concerns with the law of the sea texts were centred on the implications of the provisions for processing technology. The involvement of Inco, Noranda, Falconbridge, and Sherritt Gordon in the law of the sea development varied greatly. Inco, for one, participated throughout the Conference. Its concerns included the production ceiling, the transfer of technology, the financial terms of contracts, and the composition and powers of the organs of the ISA. At the other end of the continuum, Sherritt Gordon had a very limited involvement, one that focused mainly on the transfer of technology. Noranda and Falconbridge occupied middle positions, although the former played the much greater role. In essence, then, the major concerns of the mining companies were the transfer of technology and the develoment of the Area's resources under conditions of free market competition. BUSINESS ORGANIZATIONS

In addition to the provinces, organized labour, and individual companies, two prominent Canadian business groups became involved with the deep seabed mining issues. In this text, these actors will first be introduced individually. Their specific concerns about the provisions under negotiation in Committee One and their tactics will then be discussed simultaneously, since they shared similar perceptions and co-operated to a considerable extent in approaching the federal government. Of all the nongovernmental organizations, only the Mining Association of Canada fielded a representative on the Canadian delegation to UNCLOS m from the Caracas session in 1974 through to the final session in 1982. The MAC was a national organization with a membership of between eighty and eighty-five mining companies,30 including Inco, Noranda, Falconbridge, and Sherritt Gordon. Together its member companies accounted for 95 percent of the total value of production from Canada's mining sector.3! From its office in Ottawa, the MAC functioned as a watchdog for the Canadian mining industry and provided a two-way communications link between the industry and the federal government. The only issues under negotiations at UNCLOS m with which the MAC became involved pertained to deep seabed mining. The impetus for involvement came in 1974, when the DBA invited the MAC to participate on the Canadian delegation. Thereafter, for the duration of the Conference, the DBA reissued the invitation, and the MAC was to send a delegate for the working portion of each session. The first delegate was Charles Elliott, president of the MAC and chief executive officer of Conwest Exploration. Elliott's staunch support of Crosby during the assessing and drafting of technical proposals was especially helpful during the early years of the Conference,

122 Canada and the International Seabed when they were the only Canadian delegates with expertise in geology and mining. Together they formulated Canada's proposal for a joint venture system. Elliott never approved of the concept of a production ceiling and endorsed Crosby's recommendation that it be eliminated. Nevertheless, Elliott was always willing to share his technical knowledge and to assist Crosby in his calculations of the formulae. During the 19705, the MAC'S chief interest at UNCLOS m revolved around production policies. In 1980, as its involvement intensified, the transfer of technology became its top priority. But even during this period, the MAC officer who dealt with the deep seabed mining issues, devoted only 10 to 15 percent of his time to these topics.32 The MAC generally operated through standing committees, which dealt with particular areas of interest. No standing committee, however, was ever established within the association to handle the law of the sea matters. Furthermore, while Inco, Noranda, Falconbridge, and Sherritt Gordon were involved with Committee One issues, the association's other members showed little interest in deep seabed mining. This disinterest was due to a variety of factors.33 In the first place, the Canadian mining industry felt other problems required more immediate attention, such as taxation policy and international threats to the competitive position of Canadian mining companies. Second, the commercial exploitation of the deep seabed was thought to be a long way off and, hence, the mining of manganese nodules was not seen as an immediate or even a medium-range threat to the domestic land-based operations. In addition, many of the association's members did not mine or produce nickel. Third, because the deep seabed mining issues were very complex and technical, they could not be fully understood without a good deal of study and, hence, time. Such an allocation of time would have been justifiable for a company only if it considered the issues to be very important to its economic viability and prosperity. While Committee One negotiations were therefore never among the highest priorities of the MAC, attention was given to protecting and promoting the interests of its members in this area. Its positions were influenced by several concerns. Although not directly related to deep seabed mining, there was a general view among the membership that the Canadian government was providing aid to Third World countries for resource development but without considering the long-term implications of such development on the Canadian mining industry. For example, CIDA provided loans at low rates of interest to developing countries, such as Panama, to promote resource development. To the Canadian mining industry, such loans constituted the giving of advantages, which it itself did not enjoy, to its foreign competitors. The perception within the Canadian mining industry - that

123 Nongovernmental Actors

Canada's foreign policy was not sufficiently sympathetic to its industry's interests - provided a backdrop for that industry's views on Canada's policies in Committee One. In terms of the UNCLOS m negotiations themselves, there was a general perception among the members of the MAC that the industrialized countries were giving away much more than they were receiving.34 The provisions of the negotiating text for establishing the ISA were seen as a way of institutionalizing this trend and hence were not viewed in a favourable light. Although MAC had a representative on the Canadian delegation from 1974 on, the transfer of technology was not given serious consideration by the association during the first few years of its involvement. Two factors helped to account for this fact. In 1976, the Canadian delegation in Committee One became preoccupied with negotiating an effective production ceiling; other issues received less attention as a result. In addition, the provisions for the transfer of technology in the Single Negotiating Texts and the Revised Single Negotiating Text were considered basically acceptable to both Canada and MAC.35 It was only with the introduction in the Informal Composite Negotiating Text (1979) of more stringent terms, to ensure that technology transfers took place, that concerns began to emerge. The issue became of very real concern to the MAC in the summer of 1980. By that time, the specifics of the provisions had been spelt out in considerable detail in the texts. The MAC voiced concern about the need to protect the interests of Canadian companies that had developed technology in a wide range of areas relating to mineral production. Inco and Noranda, for example, had both participated in the development of deep seabed mining technology. And within the country, Canadian companies had invested large sums of money in order to develop sophisticated technology for exploration, processing, and transportation. Canadian mining companies were willing to sell their technology, but wanted to be paid market prices in return. The MAC'S views on the transfer of technology were shared by CBIIAC. Although the latter became aware that technology transfers were being negotiated at UNCLOS ra only in the autumn of 1980, it was to serve as an active participant during the final years of the Conference. The Canadian Business and Industry International Advisory Committee (CBIIAC) was established in 1977 to represent the interests of the business community in Canada on international matters. Its membership constituted seven of the most active business umbrella groups in Canada: the Canadian Chamber of Commerce; the Canadian Council, International Chamber of Commerce; the Canadian Manufacturers' Association; the Canadian Association - Latin America and Caribbean; the Canadian Committee of the Pacific Basin Economic Council; the Canadian Export Association; and the Canadian Importers Association. The group fostered co-operation amongst its member organizations, its goal being the melding

124 Canada and the International Seabed of the major business organizations' diverse positions into a common front for presentation to government. Its policies were developed in steering committees. Each committee was managed by a constituent member of CBIIAC and focused on one particular area of concern. The Industrial Property Committee, for example, was managed by the Canadian Chamber of Commerce and chaired by Alan Swabey, a patent attorney. While not the only official of CBIIAC to be concerned with the transfer of technology provisions under negotiation at UNCLOS ra, Swabey was particularly active in the area. Personally committed to the issue, he played a significant role in prompting CBIIAC to take a strong position on the transfer of technology provisions in the law of the sea texts. In September 1980, representatives of the federal government and of CBHAC'S Industrial Property Committee met to discuss technology transfers and the UNCTAD code. Prior to this meeting, officials from MOSST, DITC and DOF - who did not share the views of Alan Beesley, Leonard Legault, and their colleagues from the Legal Operations Division - went to Toronto and briefed the CBIIAC representatives on their concerns with the law of the sea text. In the course of the briefing, it was pointed out that not only were dangerous precedents being set at UNCLOS m, precedents that would compel owners of technology to transfer their intellectual properties to less developed countries, but that Canada was acquiescing to these provisions. Up to this point, the Industrial Property Committee had not been aware that technology transfers were even being negotiated at UNCLOS m. 36 They felt betrayed and angry. Their wrath was further inflamed when, in the course of their meeting with the DBA lawyers the next day, no mention was made of the UNCLOS m negotiations. The result was a vehement denunciation of government policies by the CBHAC committee. The DBA lawyers were criticized for not keeping CBIIAC apprised of developments at UNCLOS m and of promoting policies that seriously threatened the intellectual property of Canadian business and industry. These accusations came as a complete surprise to the DBA lawyers. Their plans for the meeting had not included a discussion of deep seabed mining. To make matters worse, one of the business representatives had written the names of the civil servants who had briefed him in advance, on his briefing paper. It took Leonard Legault, legal advisor for the DBA, and his colleagues little time to realize what had happened. They were furious. Heated words, accusations and counteraccusations flew back and forth across the room. Not only did the meeting conclude on a sour note but relations between the DEA and CBIIAC were severely strained for the next six months. Several factors help to explain why CBIIAC and its member organizations did not learn about the transfer of technology provisions in the law of the sea texts prior to September 1980. In general, the transfer of technology had had a relatively low profile at the Conference until the latter 19705, being

125 Nongovernmental Actors

overshadowed by concerns for such matters as navigational rights and coastal state jurisdiction. In addition, Canada's negotiating team, like that of the United States, had no one sensitive to the specialized problems of developing and transferring technology. Although the DEA had regular meetings with CBIIAC several times a year, the former did not make any effort to inform the latter and its member organizations of the transfer of technology provisions being negotiated at UNCLOS ra. When asked about this stance, officers in the Legal Operations Division differed as to whether or not the DEA was responsible for apprising CBIIAC of matters outside the agreed-upon agenda. Some members of CBIIAC thought that the DEA'S silence on the transfer of technology and UNCLOS m might well have been more than an oversight. They thought that the Legal Operations Division had not kept the appropriate person, the one whom representatives of CBIIAC had had most contact with concerning the UNCTAD codes, informed of developments pertaining to the transfer of technology at UNCLOS m. 37 It is surprising that neither CBIIAC nor its member organizations would have heard of the transfer of technology provisions in the law of the sea texts from their contacts within the Canadian business community. Although MAC had only really become concerned with the issue a few months before CBIIAC'S involvement, both Inco and Noranda had protested against the "mandatory" transfers considerably in advance of September 1980. Furthermore, Gary Germa, Noranda's general manager for international projects, sat on the executive of CBIIAC, although not on the Industrial Property Committee. The transfer of technology provisions became the focus of CBIIAC'S attention at UNCLOS m. Its perceptions of the issues under negotiation and its responses to the provisions in the law of the sea texts remained consistent throughout. The CBIIAC'S Industrial Property Committee, particularly Alan Swabey, systematically reviewed each law of the sea text, providing the Legal Operations Division with an assessment of the provisions. The provisions for the transfer of technology were unacceptable to both the CBIIAC and MAC. A major concern was that the UNCLOS m provisions would set dangerous precedents that developing countries might then cite to influence transfer of technology negotiations at UNCTAD and other conferences. The provisions could be used as the basis for future regulations to govern other areas, such as the extreme polar regions, outer space, or the air waves. The UNCLOS m was, nevertheless, the first conference to come even close to producing a treaty that included provisions for the transfer of technology. Yet, according to the Industrial Property Committee, it should be free market forces rather than an international body that should regulate the technology transfers. That committee also considered UNCLOS m to be an inappropriate forum in which to discuss such transfers. Codes to regulate

126 Canada and the International Seabed such transfers were already being discussed at UNCTAD and by the OECD. A special case, it contended, should not be made for deep seabed mining technology. Beyond these general considerations, both CBIIAC and MAC objected to the actual terms in the texts, especially to the concept of making technology transfers a condition of access. The terms stated that entities wishing to mine the deep seabed had to agree to transfer technology to the Enterprise or to developing countries as requested by the ISA. While the text specified that the transfers were to take place "on fair and reasonable commercial terms and conditions,"38 the precise meaning of this clause was not defined. CBIIAC and MAC recommended that article 5 in Annex III, which contained the substance of the provisions for the transfer of technology, be significantly amended, on the grounds that its ambiguity left it open to wide, and possibly conflicting, interpretations. They also were worried about who would determine the worth of the technology, and the means by which such assessments would be made. They feared that the assembly of the ISA, dominated by the developing countries, would not be sympathetic to the interests of the owners of technology. According to the business organizations, the provisions in the law of the sea texts overlooked the realities of developing technology. Entrepreneurs who undertook the risks and expenditures involved in developing technology expected the investments ultimately to increase their profits. Their primary purpose for investing in the development of technology was to provide themselves with a competitive edge. The generation of revenue from sales was but a secondary factor. In short, the provisions were considered to be very much biased in favour of the Enterprise and developing countries. Although no provisions were made to compensate companies which lost their proprietary data, corporations that refused to transfer technology were to be barred from further activities in the Area. The business groups felt that the provisions in Annex III imposed onerous conditions on the owners of technology. Such a policy, the business groups argued, was shortsighted, for it would discourage entrepreneurs from developing the technology to mine the Area. As a result, no one would benefit from the common heritage of mankind. Aside from the transfer of technology, MAC expressed views on several other issues under negotiation in Committee One. It never, however, supported the concept of a production ceiling, on the grounds that deep seabed mining could best be phased in by free market forces.39 And given the very high costs of producing minerals from manganese nodules and the highly competitive position of Canada's land-based mining industry, it deemed quantitative restrictions both unnecessary and undesirable. It was likewise opposed to the provisions for compensatory financing, for they interfered with the free operation of market forces. The MAC also expressed concern

127 Nongovernmental Actors

over both the financial terms of the contracts and the preferential treatment accorded the Enterprise. It stated that the provisions in both these areas provided the Enterprise with an unfair advantage relative to its private sector competitors. The MAC supported the efforts of the Canadian government to secure an anti-subsidization clause, although it recognized the problems inherent to working out an effective clause. The MAC contended, however, that efforts should be made to try to stop the most flagrant forms of subsidization. Although it did not consider the question a top priority, the MAC also supported the efforts of the Canadian government to secure a seat on the Council of the ISA. In light of these concerns, both MAC and CBIIAC used a variety of tactics to further their objectives vis-a-vis the deep seabed mining provisions. They approached the federal government, both individually and jointly, presenting their views in written briefs as well as oral presentations. Executives from the two organizations also initiated written correspondence with the secretary of state for external affairs and officials in the Legal Operations Division. The MAC had a natural affinity with the DEMR and dealt with both the Resource Management and Conservation Branch, as well as the Mineral Development Sector. On the deep seabed mining issues, most of its contact was with the DEA and DEMR, although it maintained close relations with all five of the departments involved. When a letter was sent to the minister of any one of these departments, copies were sent to other ministers. Since the Legal Operations Division was co-ordinating Canada's policies on Committee One matters, the MAC directed most of its correspondence to that office.40 Staff members, especially Bob Keyes, drafted briefs and recommendations for the federal government pertaining to Committee One negotiations. These briefs, based on recommendations presented by Inco, Noranda, and Falconbridge, were submitted to the board of directors of MAC for approval.4' Once approved, they were sent to the secretary of state for external affairs. Copies of the briefs were then distributed to other relevant ministers, particularly the secretary of state for mines. The MAC also alerted the civil servants in the Legal Operations Division to the problems it saw with the Committee One provisions. It advocated that greater attention be given to the transfer of technology and less to the production ceiling formula. For CBIIAC, the DEA had traditionally been its chief point of contact with the government, although its Industrial Property Committee dealt with MOSST on the UNCTAD code of conduct. In connection with UNCLOS m, the committee had contacts with civil servants from all five departments concerned with the deep seabed mining issues. Although relations between the Legal Operations Division and the Industrial Property Committee had

128 Canada and the International Seabed become strained at the September 1980 meeting, when the latter criticized the former's policies in Committee One, subsequent correspondence within each organization indicated that officers in both these groups were eager to improve relations. By January 1981 relations were friendlier, although neither side had changed its position. While the Legal Operations Division was the dominant actor in this area, neither group wanted to terminate the relationship. At meetings with members of ICLOS, representatives of MAC and CBIIAC'S Industrial Property Committee sought to explain the implications which the UNCLOS m transfer of technology provisions would have - for the owners of technology, the future development of technology and, ultimately, the common heritage of mankind. The officers of ICLOS, in turn, explained that Canada had already achieved a great many of its objectives at UNCLOS in, as reflected in the negotiating texts, and that these gains had been made possible because the Canadian delegation, like those of other countries, had made concessions. The DBA lawyers outlined the safeguards that had been established in the law of the sea texts to protect the owners of technology, such as the stipulation that the Enterprise must first establish that the technology in question cannot be obtained on the open market and then ensure that the purchases take place on fair and reasonable commercial terms. The DEA lawyers also pointed out that the provisions did not apply to processing technology. They explained that the industrialized states had agreed to these technology transfers, which were of such vital importance to the Group of 77, in return for access to explore and exploit the deep seabed area. They contended that any attempts to renegotiate the transfer of technology provisions would only jeopardize the success of the Conference. Finally, they argued that Canada, alone, would not be able to bring about changes in the terms of the texts. The business representatives agreed that the Canadian delegation had been successful at UNCLOS in in securing provisions that benefited a wide range of Canadian interests. They criticized the Canadian government, however, for not taking a strong stand to protect the interests of the Canadian business community. These interests, they contended, should not have been the price paid by Canada to secure benefits in other areas. In order to continue the dialogue on the Committee One issues, members of ICLOS and representatives of MAC and CBHAC met on a fairly regular basis throughout 1981 and 1982. Given the very different perspectives and interests of the federal negotiators, however, especially those from the Legal Operations Division and the business groups, the prospects for reaching an accord appeared rather slight. Both MAC and CBIIAC continued to express concern over the transfer of technology provisions in the Law of the Sea Convention, even after the Conference voted to accept it in April 1982. These protests were made in the hope of influencing the Canadian govern-

129 Nongovernmental Actors

ment's decision with regard to the signing and ratifying of the Convention. In order to promote their interests and to improve their bargaining position with the federal government, MAC and CBIIAC co-operated extensively. In addition to approaching the government individually, they wrote and presented joint briefs. Bob Keyes of MAC attended relevant CBIIAC meetings. He and Alan Swabey met to discuss the transfer of technology issues and any tactics for approaching the federal government. In the hope of eliciting additional support, the MAC sent Ontario government officials submissions it had prepared for the federal government. While continuing its attempts to convince the federal government of the merits of its positions, the CBUAC also tried to pursue its objectives through contacts in the United States. Since the Canadian government was unwilling to "rock the boat", the business community's last chance to obtain changes in the law of the sea texts appeared to lie with the United States government, which had called for a review in 1981. The very week after the CBIIAC representatives first heard of the transfer of technology provisions in the law of the sea texts, Swabey participated in a meeting of the International Patent and Trade Mark Association, in Chicago, where he was able to bring the matter to the attention of those in attendance. These members of the u.s. patent profession appeared to have had no prior knowledge of the transfer of technology negotiations at UNCLOS m. But, inasmuch as the participants represented the elite of the profession, including the commissioner of patents and trade and two former commissioners, the news spread quickly to all the patent-related organizations in the United States. One of these organizations, the Licencing Executive Society USA/Canada (LES USA/Canada), to which Swabey belonged, asked him to chair an ad hoc law of the sea committee. The LES USA/Canada was the founding branch of the Licencing Executive Society, a world-wide organization of business and professional people interested in the licensing of technology. In order to co-ordinate their activities, Swabey and the president of LES USA/Canada, William Riley, Jr., decided to keep each other as well as the other members of the committee informed of relevant developments in their respective countries. They discussed strategies. Swabey, who was an active participant in the LES'S discussions on the law of the sea, outlined, in both oral and written42 form, the implications of the transfer of technology provisions for the owners of technology. Swabey advocated that all those concerned about these develpments should make their views known to the u.s. government, particularly to the Senate Foreign Relations Committee and the State Department. In addition to providing members of LES USA/Canada with information and encouraging them to take action, Swabey prepared a brief to General Alexander Haig, outlining the position of LES'S Law of the Sea Commit-

130 Canada and the International Seabed tee. Swabey chose this tactic on the advice of several highly placed officials in Washington, including Ted Kronmiller, deputy assistant secretary of state for oceans and fisheries. These American officials were sympathetic to LES'S concerns about the law of the sea and the transfer of technology provisions. They advised him to act quickly, for General Haig was in the process of being confirmed as secretary of state by the us Senate. Sending a brief to General Haig would ensure that the matter would be brought to the attention of the Senate Foreign Relations Committee, which was overseeing the American review of the law of the sea texts. On Riley's instigation, Swabey also went to Chicago to brief a senior patent attorney and friend of Senator Percy, chairperson of the Senate Foreign Relations Committee. LES'S concerns were thus personally conveyed to the Senator.43 These tactics engendered a significant response from the senators and correspondence from Riley. Lobbying efforts by LES were complemented by the activities of the American Patent Law Association, to which most American patent lawyers belong. Its president, George Whitney, appeared before the Senate Foreign Relations Committee. The information he provided to LES concerning the principal actors in the law of the sea negotiations greatly facilitated its lobbying efforts. The relationship between the business representatives and their contacts in Washington was symbiotic. The latter provided useful information regarding relevant developments in Washington and the best ways of making effective representations to the us government. They, in turn, benefited from having information from and the support of, the private sector during their revision of us policy on the law of the sea. The us government's call for a review was partially due to the priorities of the president and his administration and partially the result of strong lobbying on the part of the business community. While the dominant lobbyists were obviously American, several members of the Canadian business community were active participants. Although MAC had established communication lines with the us Mining Congress, there was little interchange between the two organizations over deep seabed mining issues.44 Canadian companies were actively involved in the production of nickel and, with two exceptions, were unlikely to be engaged in mining the deep seabed. In contrast, the American mining industry wanted to ensure that its companies could participate fully in deep seabed mining. The u.s. Mining Congress did share some of its papers and views with the MAC. In most cases, however, the latter knew the positions of the former on these issues without needing direct contact. Despite numerous meetings and extensive written correspondence, there remained a fundamental difference of opinion between the DEA lawyers and the business community. The officers from the Legal Operations Division

131 Nongovernmental Actors

recognized the specific concerns of the business community. The success of the Conference however, was for them and their minister much more important than the concerns of business. For their part, the mining companies and business organizations realized that the Legal Operations Division and the Canadian delegation were involved in negotiating a whole package. They nevertheless, considered their interests to be important both to themselves and to Canada as a whole. They objected, therefore, to seeing their interests become the price to be paid for the support of the Group of 77 regarding the law of the sea treaty.

CHAPTER SEVEN

The Canadian Delegation

AT UNCLOS III

Because the cabinet's instructions to the Canadian delegation were phrased in fairly general terms,1 the delegation was able to exercise significant influence in the policy-making process. It did, however, have to operate within the parameters set by the directives from Ottawa. The range of its options was also circumscribed by developments at the Conference, as well as by international events and forces. The Canadian delegation was remarkably effective in protecting and promoting Canada's interests at the Conference. This was particularly evident in the areas negotiated by Committees Two and Three. It was clear, however, that the delegation also had a high profile on Committee One, exerting influence beyond its economic or political weight. The Canadian delegation to UNCLOS m consisted of federal cabinet ministers, members of Parliament, and civil servants from many of the departments participating in the ICLOS negotiations. It also included representatives from the provincial governments, as well as from nongovernmental organizations concerned with the issues under negotiation at the Conference. Each federal department could appoint representatives to the Canadian delegation. In general, the departments with interest in the law of the sea negotiations sent officers who were knowledgeable about the issues. As a result, there was considerable overlap between those on ICLOS and those attending UNCLOS in, although membership in ICLOS tended to be wider and more senior.2 Not all the departments participating in the ICLOS discussions concerning the deep seabed mining issues were represented on the Canadian delegation. For example, the DITC did not send a representative; even the MOSST

133 The Canadian Delegation

only sent one officer to the first substantive session in 1974 and he was not involved with the Committee One negotiations. Nor were all the organizations mentioned in chapter 6 invited. For instance, neither the municipal governments nor the CBHAC, nor the mining companies, were ever invited to join the delegation. Actually the municipal governments and CBIIAC never requested membership. The municipal governments generally relied on the provincial governments to represent their interests, while the CBIIAC became involved late in the Conference, that is, when the policy directives were well established. Also, since the CBIIAC considered its input in Ottawa to be minimal,3 its participation on the Canadian delegation was unlikely to be productive. Inco, however, did send observers to several sessions. One reason the mining companies were never invited to join the Canadian delegation was that it was felt that their interests were already represented by the MAC. A second reason was that the Canadian delegation, especially the DEA lawyers, did not want to be viewed as being too closely linked with private corporations. The DEA, DEMR, and DOF, as well as the governments of Ontario and Manitoba, the USWA, and the MAC, all sent representatives to participate in the Committee One negotiations. As discussed in previous chapters, the extent of their respective involvements varied considerably. Some individuals, such as Alan Beesley, were active on the Canadian delegation throughout UNCLOS m. Other representatives, such as Sobharam Singh of Manitoba, only attended during the final two years of the Conference. Generally, the organizations that attached the greatest importance to the negotiations tried to send people with experience and knowledge of the earlier negotiations. Hence, many of the same people, most notably, Beesley and Crosby, participated at each session. The governments of Ontario and Manitoba, and the USWA, each sent the same individuals over the years to represent their respective interests. Although MAC appointed several different individuals to the Canadian delegation during the course of the Conference, each representative attended at least three sessions. Members of the Canadian delegation shared attendance duties. Because ministers and members of Parliament could not afford to be away from Ottawa for a full six-week session, they attended the portions that they considered to be the most closely related to their interests and responsibilities and that fitted in with their schedules. In the latter years, the MAC sent representatives only to the working portions of the sessions. During the sessions, the Canadian delegation held morning meetings at least three times a week and sometimes daily.4 At these meetings, all members of the delegation were free to express their views. Outside the delegation meetings, however, the differing status of the various representatives came into play. The federal civil servants sat at the Canadian

134 Canada and the International Seabed

table, participated in the negotiations, and spoke for Canada. In contrast, the representatives of the provincial governments and interest groups, could attend the meetings only as observers, although they could contact members of other delegations if they so wished. Members of the Canadian delegation were expected to operate as a team in public and to support the formal Canadian positions.5 All members of the Canadian delegation participated in corridor discussions, however, for these were the key to in-depth negotiations. In informal discussions, it was possible to ascertain the areas of interest and concern to other countries and to explore possible compromise positions. Canadian delegates were generally assigned to matters lying within their particular areas of expertise. Officers from the DEMR handled production policies, while those from the DOF dealt with financial matters. The DBA lawyers were responsible for the overall coordination of Canada's policies. Generally, technical specialists tended to hold discussions with other technical experts, while diplomats conversed with other diplomats.6 This was largely due to the fact that each profession had its own terminology and means of approaching problems. For example, the officers from the DEMR and the representatives from Ontario and MAC, all of whom had expertise in mining, tended to co-operate in Committee One negotiations and moved in the circle of technocrats at the Conference.7 In Committee One Canadian delegates negotiated with four major groups of countries: the land-based producers; the Group of 77; the potential deep seabed mining countries; and, at the final session, the Group of 12 (middle-sized industrialized states). This chapter traces the interaction between Canadian negotiators and countries within each of the four groupings, both at UNCLOS m and subsequently in the broader international arena. Land-Based Producers Although the Land-based Producers' Group theoretically consisted of countries whose local mines contained the minerals found in manganese nodules, it was often difficult to determine the exact membership of this group. Participation seemed to vary from time to time, to the point that no two lists in the DBA files of the countries participating in the meetings of the landbased producers were ever the same. Robert Hage, a DBA officer who served on the Canadian delegation, included the following countries in his list of land-based producers: Argentina, Australia, Burundi, Canada, Chile, Columbia, Cuba, the Dominican Republic, Gabon, Guatemala, Indonesia, the Ivory Coast, Nigeria, Peru, the Philippines, Zambia, Zaire, and Zimbabwe.8 But this list cannot be termed complete, inasmuch as documents indicate that Angola, Brazil, Egypt, and Venezuela also attended

135 The Canadian Delegation

a lunch for land-based producing states, hosted by the Canadian delegation, on n March 1980. The fact that its members produced different minerals, and hence had divergent needs, undermined the internal unity of the Land-based Producers' Group. In actual fact, the extent to which deep seabed mining posed a threat to the economy of a country depended, by and large, on the type of minerals it produced. The effects that the various production formulae could be expected to have on individual land-based producing countries likewise varied with the minerals in question. Deep seabed mining, for example, was expected to have the least effect on copper-producing countries. These countries were also best protected by the production ceiling. Among the nickel-mining countries, those with sulphidic deposits were better off than those with laterite resources. The countries likely to be the most affected by deep seabed mining and the least assisted by the negotiating texts' production ceiling were the producers of cobalt. The Latin American countries, the first to join Canada's crusade against the Engo formula, were the first to lose interest, perhaps because most of them were copper producers. The exception was Cuba, a nickel producer; it continued to be active in the production-ceiling negotiations. When the floor was added to the negotiating text (Informal Composite Negotiating Text/Revision 2) in 1980, it was possible to classify the landbased producers into several categories.9 At one end of the continuum were the Latin American copper producers, which accepted the production formula in the negotiating text. Three countries - the Philippines, Australia, and Cuba - occupied positions in the middle of the spectrum, while Canada and Indonesia took harder lines. At the other end of the continuum were the three African producers of cobalt - Zambia, Zaire, and Zimbabwe - countries that continued to work to improve the terms of the production formula right up until the end of the Conference. By 1980, the key actors in the Land-based Producers' Group were Canada, Indonesia, the Philippines, Zaire, Zambia, and Zimbabwe.10 Participation in the Land-based Producers' Group cut across the NorthSouth and East-West divisions. Such cleavages, infact, only made it more difficult for the group to agree on common positions. Whereas Canada and Australia were industrialized states, the rest of the land-based producers were developing countries. To the latter such countries, compensatory financing was a viable option. But that tool was of no help, and in fact would have been a detriment, to the Canadian and Australian mining industries, since it would have benefited their competitors in developing countries. As has been seen in previous chapters, Canada's desire to secure the support of its "Southern allies" for the production ceiling only served to curtail the ability of the Canadian delegation to pursue Canada's interests as a developed state. The Australian delegation, which was never a prominent

136 Canada and the International Seabed

advocate of the production ceiling, never really had to face this problem. It did, however, help to mediate between Canada and the United States during the 1976-78 period, when the two countries were trying to work out a mutually acceptable formula. From 1980 on, Australia identified closely with Western industrialized countries and supported free market forces rather than quantitative restrictions. For their part, the developing states considered their position as landbased producers to be quite unlike that of Canada.11 Canada had higher grade ores and a more economically viable mining industry. In addition, it had greater capital resources and a more diversified economy. These factors put it in a better position to withstand any slump in the world metal markets. The importance of the North-South cleavage should not be overstated. The developing countries, which were land-based producers, were by no means a united bloc. The nature of their mining industries varied considerably, as did their priorities in Committee One and at the Conference as a whole. In fact, on the production ceiling issue, Canada co-operated more closely with both Indonesia and the African cobalt producers than with Australia. Having members from the "North" and "South" had some advantages for the land-based producers. For example, Canada's network of connections with other Western industrialized countries facilitated consultations. Delegates were able to attend the meetings of like-minded states as observers. The land-based producers that belonged to the Group of 77 were also able to present their case and elicit the support of the larger group. The "East-West" split within the Land-based Producers' Group was far less significant than the North-South cleavage. Cuba was aligned with the Eastern bloc, while Canada and Australia were part of the Western world. Although Cuba's participation in the Land-based Producers' Group was at times curtailed by pressure from the Eastern bloc,12 the latter was also eager to ensure the economic viability of the Cuban mining industry.13 In general, the land-based producers that were also developing countries cooperated, despite the differences in their political and economic systems. The Canadian delegation was the prime mover in organizing the Landbased Producers' Group. Immediately following the fourth session, when the production ceiling was introduced, the Canadian delegation began to seek allies for its efforts to negotiate a formula that would place limits on seabed rather than land-based production. In the summer of 1976, members of the Canadian delegation began lobbying other land-based producing countries to develop support for the nickel production ceiling. These efforts will be discussed later on in this chapter, in the section detailing the activities of the Canadian delegation outside the conference setting. Within the Land-based Producers' Group, the Canadian delegation tended to assume the lead role and to draft most of the proposals. It did

137 The Canadian Delegation

so because of the importance it accorded to the issues. It also had the expertise and the financial resources necessary to undertake the complex analysis required.14 The Canadian delegation frequently organized and hosted meetings of the land-based producers. Quite often these took the form of working lunches. Prior to the meetings, Canadian delegates put considerable effort into clarifying their positions and planning strategies for effective presentations. The aim was to develop joint positions on the production ceiling issue and to co-ordinate activities to support them. These meetings were also viewed as opportunities to develop a sense of camaraderie among the participants.15 The Canadian delegation initiated consultations between the proponents of the production ceiling and its major critics, the most successful of which brought about the negotiation of the ad referendum agreement. But efforts did not stop there. In February 1979, the Canadian delegation organized an informal luncheon at which the land-based producing countries, the United States, members of the European Community, and Japan could discuss that Canada-us agreement. The Canadian delegation, like those of many countries, was often reticent to appear to be taking the lead. Although all delegations were expected to promote the interests of their respective countries, Canada's bargaining position would have been undermined if it had been seen to be manipulating other countries to its own ends. Yet in order to weaken the alliance of the developing countries and Canada on the production ceiling, the potential deep seabed mining countries tried at times to convey the idea that the Canadian delegation was entirely self-seeking, that it had no real concern for the welfare of developing countries. To combat this perception, officers from the Legal Operations Division sent telexes to Canadian embassies in other land-based producing countries asking them to urge their host governments to organize meetings of the land-based producers. The host governments were also encouraged to put forward policy proposals. At times, other land-based producers agreed to cosponsor meetings of the group. Despite its efforts to avoid being perceived as the leader of the land-based producers, the Canadian delegation continued to be viewed by many as exactly that. In the final two sessions of UNCLOS in when the African landbased producers launched a major campaign to secure further amendments to the production formula, the British delegates assumed, erroneously, that Canada was behind the campaign. This error reflected a tendency to underestimate the technical expertise of some of the African delegates and, conversely, an assumption that since Canada had previously led the Landbased Producers' Group, it still "ran the show." The extent to which the two industrialized land-based producing countries co-operated in Committee One varied considerably during the course of the Conference. At times, the Canadian and Australian delegations

138 Canada and the International Seabed worked very closely together. This was best exemplified by their joint efforts to secure the anti-subsidization and fair market access clauses. Both countries sought, as well, to ensure that one of the four Council seats allocated to land-based producers would be reserved for an industrialzed state. Even though the Canadian delegation instigated the Land-based Producers' Group and worked hard to keep it active, other members were also very much involved. Indonesia, the Philippines, and the African land-based producing countries sent technical experts to the conference and carried out much of the work of the group.16 Group of 7j In Committee One, the Group of 77 sought to ensure that developing countries not only benefited from the wealth resulting from deep seabed mining but that they were also able to participate directly in the requisite exploration and exploitation. In short, it sought to ensure that the 1970 Declaration of Principles was fully implemented.17 Having quantitative restrictions on production from the Area was not in the interest of most members of the Group of 77, however, since it was through the development of these resources that they could gain access to the minerals. If fewer resources were exploited, there would be fewer deep seabed mining operations in which to participate, as well as smaller revenues to share. Members of the Group of 77 that were land-based producers, worried about the bringing of large quantities of minerals from the Area to market, for it posed serious threats to their economies. They feared that unregulated production would result in overproduction, falling world prices, and a decreasing demand for land-based minerals. This would hit developing countries, such as Zambia, which relied heavily on the export of one or a few minerals for their foreign exchange income, particularly hard. The magnitude of this problem was obvious, especially since in 1974, "the developing world accounted for 35 to 40 percent of production of the four metals concerned, with an export revenue of $6 to $8 billion a year."18 The position of the Group of 77 on the production ceiling therefore posed a difficult problem. Generally, the group supported the land-based producers, although it was not prepared to sacrifice the interests of the majority of its members for those of a relatively small minority and its land-based producing members did not speak with a united voice. As mentioned earlier, the Latin American countries were prepared to accept the formulae in the negotiating texts, while the African cobalt producers sought substantial changes. Nonetheless, the land-based producers that were also developing countries had significant clout within the Group of 77, and for several reasons. To begin, they were located in all three of the major geographic regions from which the group's members were drawn. Especially during the second half

139 The Canadian Delegation

of the Conference, they sent very capable representatives, each of whom had expertise in mining and could speak with authority.19 These representatives not only worked hard both in analysing the formulae that were proposed and in producing counterproposals, but also put considerable effort into convincing the Group of 77 of the importance of their cause. The Group of 77 recognized that Canada shared interests in Committee One with both developed and developing countries and that the Canadian delegation was walking a tightrope between the two camps.20 However, the fact that Canada also held bilateral negotiations with Western industrialized countries and participated in some of their multilateral meetings lessened its credibility as a trusted ally of the group.21 The Group of 77 believed that Canada was one of the major beneficiaries of the Conference, if not the major one. It was also widely recognized that Canada differed with the Group of 77 on such issues as the transfer of technology and council voting.22 The Group of 77 was never interested in the anti-subsidization clause which it considered to be unworkable. In terms of seeking protection for the land-based producers, therefore, the group gave priority to the production ceiling and market access issues. In these areas, the Group of 77 and Canada had shared objectives. Like-Minded States There was a good deal of ambivalence in Canada's relationships with these capitalist, industrialized states, including the United Kingdom, United States, Federal Republic of Germany, France and Japan, that constituted the Group of Like-minded States. On the one hand, the views of the Canadian delegation on the production ceiling were diametrically opposed to those of the like-minded states. These were the countries which, in 1980, had had the floor added to the production formula and which generally opposed the concept of quantitative restrictions. On the other hand, Canada shared their concerns with regard to financial arrangements and the transfer of technology. Also, Canada and other Western industrialized states had traditionally co-operated in other fora, such as the GATT talks, UNCTAD, and the OECD, where issues similar to those under negotiation in Committee One were discussed. Although its dominant members were not willing to take a strong stand on these issues, the Canadian delegation counted on the Group of Like-minded States to protect their common interests in Committee One. Because the like-minded states had the financial resources and technological capabilities to begin deep seabed mining, they wielded considerable influence in Committee One. Of these countries, the United States had the highest profile and exercised the greatest influence. The Canadian delegation's efforts to influence the like-minded states can be classified in

140 Canada and the International Seabed

terms of two issues. On the one hand, it tried to explain the importance of the nickel-production ceiling for land-based producers to the like-minded states, in hopes of getting these states to accept its proposal. On the other hand, it sought to discourage the like-minded states from taking actions that would undermine the success of the Conference. Such actions included the instigation of moves towards the passing of unilateral legislation, and the adoption of rigid positions which would only make the negotiation of compromises more difficult. Although the Canadian delegation had to appear unified in public, some of the dissension that emerged in ICLOS was also present at the Conference. Those who thought that the formal Canadian positions undermined Canada's interests as an industrialized country sought allies along the likeminded states, especially the United States and the United Kingdom. Such contacts had to be carried out in a very low key, inconspicuous manner. Views were exchanged off the record with the understanding that neither side would reveal the source of the information obtained. Hints were dropped in the course of corridor discussions with foreign delegates who shared similar perceptions of the issues. The raising of pertinent questions was also found to be an inconspicuous but effective way of drawing attention to an issue. Such actions were taken as a means of protecting certain Canadian interests, ones which dissenting voices on the delegation thought were not being adequately reflected in the official Canadian positions. On the other hand, such actions undermined the ability of the Canadian delegation to present a united front. Middle Industrialized States The impetus for organizing the group of middle industrialized states came from the Canadian delegation. In spite of considerable effort, the Group of 12 was not able to get the United States to agree to its compromise proposal until the final day of the eleventh session, by which time the Group of 77 was unwilling to resume negotiations. Yet the work of the Group of 12 gave the Canadian delegation the temporary hope of being able to make changes in the treaty provisions beneficial to its position as an industrialized state. It also offered the only real hope of having a universally acceptable law of the sea convention. A significant amount of information sharing occurred between Canada and several members of the Group of 12. This was particularly true in the case of Canada, Australia, and New Zealand. OUTSIDE THE CONFERENCE SETTING

Members of the Canadian delegation not only worked hard to win support for Canada's objectives at UNCLOS m but were also active in this regard out-

141 The Canadian Delegation side the Conference setting. Since the UNCLOS m negotiations constituted only one portion of the Canadian delegates' job responsibilities, their lobbying efforts had to be meshed with other duties. The DBA lawyers, for example, performed most of the activities related to the Committee One negotiations between sessions. The officers from the DEMR were also involved, since their expertise was needed in the technical negotiations. Representatives of the governments of Ontario and Manitoba, and of nongovernmental organizations, also lobbied abroad to influence the positions of other countries. The Canadian representatives adopted a pragmatic approach in their interactions outside the conference with officials from other countries. While according priority to the international negotiations at UNCLOS ni, Canada also attempted to realize its objectives through other international meetings and through multilateral, bilateral, and unilateral channels. Canadian delegates participated, too, in the informal meetings held between the formal UNCLOS m sessions. During the period when UNCLOS m was meeting, deep seabed mining issues were being examined in several other international fora as well. Technology transfers and commodity agreements, for instance, were discussed at meetings of UNCTAD, the Trade and Development Board and the OECD. The DBA lawyers exchanged telexes and memoranda among themselves and with the federal officers representing Canada at other conferences at which the deep seabed mining issues were discussed. They sought to co-ordinate Canada's policies at the various conferences and to achieve a measure of consistency in the positions taken. On the issue of technology transfers, consistency was most important to officers from the MOSST, DITC, and DOF, although all federal departments shared this concern. The positions taken by the Canadian delegation in Committee One, although they did not contradict those followed by Canadian representatives in other fora, did not strongly advocate the rights of the owners of technology, as had been the case at the UNCTAD and OECD meetings. To some on the Canadian delegation, the failure to protect and promote these interests at UNCLOS in was inconsistent. This view was also voiced by some of Canada's allies at UNCTAD and within OECD itself. For example, West Germany pointed out the inconsistencies to the Canadian representatives to UNCTAD. Participation in international and multilateral fora provided Canadian officials with further opportunities to discuss the deep seabed mining issues with representatives of other countries. In May 1976, Secretary of State for External Affairs Allan MacEachen raised the question of the production ceiling with Secretary of State Henry Kissinger, during the UNCTAD iv meeting in Nairobi. Canada's position on the deep seabed mining regime was then outlined at the meetings of the Commonwealth Heads of Government on 11 July 1979. At the Venice Summit Meeting, in June 1980, the prime minister explained Canada's position on the production ceiling to

142 Canada and the International Seabed the prime minister of Britain and the chancellor of West Germany. In July 1980, the secretary of state for external affairs discussed the same topic with the Australian foreign minister. Deep seabed mining was also discussed at meetings held by the Group of 77, the European Community and Pacific Rim Countries, the AsianAfrican Legal Consulting Committee, and the Organization of African Unity. In each case, Canadian officials tried to keep informed of relevant developments in these fora. Since Canada was not a member of all these groups, it relied on its allies to keep it apprised of developments. For example, both Indonesia and India shared information with Canada on developments at the Asia-African Legal Consulting Committee meetings. Objectives were pursued bilaterally as well as multilaterally. The monitoring of developments in other countries that had a bearing on the Committee One negotiations was done primarily through the DEA'S international communications network. Developments in the United States received the most attention. From the beginning of the Conference, telexes were sent back and forth between Ottawa and the Canadian Embassy in Washington, requesting and providing information on Committee One matters. At times, the us Embassy in Ottawa provided the Legal Operations Division with information pertaining to u.s. positions on Committee One issues. In addition to monitoring developments in the United States, Canadian delegates sought to influence u.s. policy makers. Cabinet ministers, as well as civil servants, discussed the deep seabed mining issues with their counterparts in the United States. From 1976 on, the secretary of state for external affairs raised the matter regularly in talks with the u.s. secretary of state. Canadian civil servants travelled to Washington to discuss Committee One issues. In February 1979, the prime minister discussed the importance of the production ceiling during his meeting with President Carter. Following the introduction of the production ceiling in 1976, consultations between Canadian and American officials took place between each session. Some of these meetings involved diplomats, while others were carried out by the technical experts. Mohide of the Ontario Ministry of Natural Resources actively contributed to many of the technical discussions concerning the production ceiling that took place between members of Canada's Nickel Team and u.s. officials. Other meetings included diplomats as well as technical advisors from both countries. Although most of the meetings were held in Washington, representatives from the two countries also met in Ottawa. And as mentioned earlier, the final technical details of the Canada-u.s. ad referendum agreement were negotiated by Pasho and Meyer (USA) during a ski trip to Zermatt, Switzerland. Developments in other industrialized countries had a bearing on the Committee One negotiations. In March 1977, telexes were sent by the Legal Operations Division to Canadian representatives in Bonn, Canberra,

143 The Canadian Delegation London, Moscow, Paris, and Tokyo, requesting information on the oceanmining activities in each of these countries. In August of the same year, telexes were sent by the Legal Operations Division to Canadian representatives in Bonn, London, Paris, and Tokyo, asking about moves within each country related to the enaction of unilateral legislation. From July 1976 on, numerous telexes were sent by the Legal Operations Division to Canadian representatives in other land-based producing countries. Some of these telexes inquired about the host government's current stands on the Committee One negotiations, especially on the production ceiling. Such telexes were sent in late January and early February 1978 to Jakarta, Guatemala, Brasilia, Manila, Bogota, Havana, and Lima. At other times, telexes were sent to arrange meetings of the land-based producers. In early January 1979, the Legal Operations Division sent telexes to Canberra, Havana, Buenos Aires, Brasilia, Santiago, Bogota, Guatemala, Jakarta, Nairobi, Lima, Manila, Caracus, and Lusaka, proposing a meeting of the Land-based Producers' Group. Still other telexes requested that Canadian representatives in other land-based producing countries urge their host governments to take specific action to further their joint objectives. In March 1978, telexes were sent to Manila, Lima, Buenos Aires, Bogota, Caracas, Mexico City, Santiago, Havana, Guatemala, Kuala Lumpur, Delhi, and Nairobi, requesting that these countries send technical experts to the seventh session. In June 1980, Canadian officials posted to Lagos, Nairobi, Dar es Salaam, Lusaka, Manila, and Jakarta were instructed to ask their host governments to cosponsor or, at least, support Canada's proposed amendments to the production floor. In addition to the group meetings, Canadian representatives approached other land-based producing countries individually. In June 1980, bilateral consultations were held with land-based producers in Africa, Latin America, and Asia. At other points, the Canadian representatives would have to decide whether to approach just one or a few land-based producers. Bilateral consultations were important in encouraging the African landbased producers to become involved with the production ceiling. Terry Bacon, who had formerly worked in the Legal Operations Division, was active in making representations to the African land-based producers when he was High Commissioner to Zambia. In June 1980, he was joined in his efforts by Pasho (DEMR). Pasho visited Zambia, Zaire, Zimbabwe, Tanzania, and Kenya to discuss the production ceiling. As mentioned earlier, the African land-based producers became strong advocates of production controls. Bilateral consultations took place from time to time with representatives of Indonesia, Canada's closest Asian ally on the production ceiling. The initiatives for these talks came from both states. For example, it was Indonesia that was most often asked by Canada to host or cohost meetings

144 Canada and the International Seabed of the land-based producers and to present proposals on production policies. The Canadian delegation worked hard to try to elicit greater support from Australia. Maintaining contact had been a fairly easy operation when Beesley was serving as High Commissioner in Canberra. The two countries did share a considerable amount of information, including that obtained from representatives of other countries. But efforts to elicit Australia's support for the nickel-production ceiling were never very successful. In one case, attempts to get that support actually backfired. At the ninth session, the Australian delegation, which had previously taken a low key approach to the question of production controls, firmly advocated the policy of free market conditions to govern the development of the resources of the Area. This position was largely due to pressure from the Australian mining industry. Ironically, Canada's intersessional lobbying efforts had alerted the Australian mining industry to developments at UNCLOS m and helped ignite its opposition to the idea of quantitative restrictions. Although Canada resorted to unilateral action in the areas of fisheries jurisdiction and the marine environment protection, it never used, or condoned the use of, such measures with regard to Committee One issues. Given the importance attached to UNCLOS in by Canada, and the possible threat which unilateral moves in the Area would have posed to the Conference's chances of success, Canada never seriously considered passing seabed mining legislation. In addition, it consistently and adamantly opposed all moves in that direction by other Western industrialized states. AN ASSESSMENT

On balance, the record of the Canadian delegation in achieving its negotiating objectives at UNCLOS m is very impressive. It is therefore, interesting to examine both the factors that enabled it to function effectively and those that operated to its detriment. Members of the Canadian delegation were drawn from diverse professions and from a variety of economic sectors. They included career diplomats, geologists, engineers, economists, lawyers, and leaders in the labour movement. Collectively, they embodied a wide range of technical expertise. When the production ceiling was introduced to the conference in 1976, the Canadian delegation was the only one with members able to do the necessary in-depth analysis of its provisions. A good deal of the credit for Canada's success at UNCLOS m must therefore go to the negotiating skill of these Canadian delegates. Capable and determined, they demonstrated flexibility in using a variety of tactics and in working out compromises as the Conference progressed. For example, they frequently established negotiating groups and then suggested that someone

145 The Canadian Delegation

else chair them. Such a tactic allowed them greater freedom to make suggestions. Beesley and Crosby were also excellent in getting other countries to sponsor and cosponsor Canadian proposals. The Canadian delegates put considerable effort, as well, into preparing for meetings with representatives of other states or groups of countries. Prior to these meetings, telexes were sent to relevant Canadian officers and posts around the world to facilitate the planning strategies. They not only outlined the issues and positions of the particular countries but frequently also provided background information on the foreign diplomats with whom the Canadians would be dealing. Any previous negotiating experience with these diplomats was included, as were details about personality traits that might affect the talks. It is easier to achieve one's objectives in a meeting if one knows the other person's strengths and weaknesses, in advance, and how they are likely to react to a particular suggestion or tactic. The Canadian delegation also benefited from the flexibility of its negotiating position. It seems that the strategy of seeking agreement for a proposal at a conference, prior to receiving cabinet approval, can be very effective. It enables the negotiators to go back to cabinet with specific information as to the amount of support the proposal is likely to receive at the Conference. This information is important for rational decision making. On the other hand, such tactics can backfire if cabinet ministers think their authority has been circumvented. The DBA lawyers were able to minimize the risks of the latter while simultaneously maximizing the negotiating flexibility of the Canadian delegation. They were careful to phrase their recommendations to cabinet in general terms. The directives related to broad objectives, rather than to specific tactics or to precise terms needing negotiation.23 For example, the fact that a production ceiling had, in a previous cabinet memorandum, been mentioned, although never discussed in detail, permitted Beesley to argue that the Canadian delegation's counterproposal fell within the instructions from cabinet. The negotiation of the ad referendum agreement further exemplified this tactic. Canada's approach to the UNCLOS m negotiations was functional and issue-oriented. Rather than sticking to rigid doctrinaire positions, Canada demonstrated a substantial degree of flexibility. Its policies did not remain wedded to particular proposals, but evolved as the Conference negotiations progressed. As a result, Canada was able to respond to changing circumstances and new issues as they arose during the Conference. For example, while Canada favoured a royalty system for financing the ISA, it was willing to consider other options if they were certain to get general agreement and hence enhance the chances of securing a law of the sea treaty. The Canadian delegation also presented working papers, in an ongoing effort not only to promote Canadian interests, but to fashion compromises that would bridge the gap between the developed and developing countries. And,

146 Canada and the International Seabed finally, when the Group of 77 and several of the major industrialized states were deadlocked over the question of the powers of the ISA - they wanted full control and limited powers respectively - Canada proposed that the ISA be given "comprehensive powers". Canada did not commit itself in advance to any one bloc of countries, but instead co-operated with many different states, on the basis of shared interests. As a result, the coalitions to which Canada belong varied with the session, the committee, and the issue at stake. Within Committee Two, for example, Canada was active in the coastal state group. But within Committee One, its policies towards the provisions for a deep seabed regime had most in common with the Group of 77, especially in terms of protecting the interests of the land-based producer countries. Mind you this did not prevent Canada from co-operating with the u.s. delegation to draft a compromise nickel production ceiling. Canada also took a pragmatic approach to its relations with the like-minded states, sending observers to the group's meetings but not becoming a member. Such an approach enabled Canada to monitor developments in that forum without alienating its allies in the Group of 77. Attendance at these meetings also provided opportunities for Canadian representatives to explain Canada's position on the production formula. Canada's evolving response to the contentious issue of access exemplified the delegation's flexibility and ability to play a conciliatory role. In an attempt to bridge the gap between the developed and developing countries, Canada proposed a joint venture system in which the Enterprise, state entities, and private companies could participate. As the negotiations progressed, both sides appeared willing to accept a parallel system of access, for which the Canadian proposals had been the forerunner. Canada moved to support the new proposal, because it appeared to have the best chance of satisfying the demands of both sides and, hence, of securing general agreement. Having Alan Beesley elected to chair the Drafting Committee augmented Canada's prestige at the Conference and facilitated the making of valuable contacts. Beesley, moreover, was extremely skillful at keeping Canada in the limelight and enhancing its status. As one of the senior officers at UNCLOS m, Beesley was kept abreast of Conference developments and participated in the inner policy-making processes. The position also enabled him to encounter many of the most important and influential delegates from a wide range of countries. This facilitated informal consultations and the working out of compromise positions. The two senior civil servants on the Canadian delegation were capable, forceful individuals. Although Alan Beesley, Deputy Head of the Canadian Delegation, and Don Crosby, alternate Deputy Head and Canada's representative in Committee One, did not always agree on tactics, they usually functioned as an effective team.24 They combined diplomatic skills

147 The Canadian Delegation

and technological expertise and, in public, they were generally very supportive of one another. For political reasons, the participation of the provincial and interest group representatives on the Canadian delegation was very important. The support of the United Steelworkers of America and the governments of Ontario and Manitoba helped to validate the policies being pursued. Their presence on the Canadian delegation also helped to secure domestic support for the federal government's policies. The representatives of the provincial governments and interest groups provided a two-way communications network between the Conference and their constituencies at home. The upshot was that the latter were less likely to criticize policies that their representatives had helped to formulate. In addition, those who attended the sessions saw the context in which the negotiations took place and, as a result, had a better understanding of the external constraints on Canada's policy options. Clearly, membership on the Canadian delegation curtailed criticism at home which, in turn, enhanced the bargaining strength of the Canadian delegation in Committee One. The support of the provincial government and interest group representatives also influenced the bargaining positions within the Canadian delegation. Just as had been the case in meetings with ICLOS, the support of the governments of Ontario and Manitoba and the USWA helped those federal government officers advocating the nickel-production ceiling to ward off criticism from civil servants who thought that quantitative restrictions were undesirable. Because the political advantages of having representatives of provincial governments and interest groups on the Canadian delegation were so widely recognized, considerable time was spent cultivating such sources. Efforts were made to point out the relevance of the issues under negotiation to the interests of the provincial governments and interest groups that might be possible sources of support. Prior to each session, the representatives of the interest groups and provincial governments that would be participating on the Canadian delegation were invited to a meeting with federal officers. The goal was to provide the representatives with sufficient background material to enable them to speak with authority on the issues. Hence they would be more effective allies. The bargaining position of the Canadian delegation was influenced by developments on many fronts: domestically, at the Conference, and internationally. The slumps in the world nickel markets and the large lay-offs in Sudbury made the position of the Canadian nickel industry appear all the more serious. The participation of representatives of the USWA, as well as Ontario and Manitoba, lent credibility to assertions that the Canadian government was under pressure at home to act. Notwithstanding its many assets and general effectiveness in pursuing Canada's official policies, the Canadian delegation suffered from two in-

148 Canada and the International Seabed

ternal problems: inadequate co-ordination and, at times, lax discipline.25 Decisions were taken without full consultation. In some cases, Beesley and Crosby discussed matters privately, not informing other members of the delegation of their decisions. This caused a great deal of frustration among the more junior officers. In other cases, Beesley and Crosby would initiate action without consulting the other. As a result, two different messages would be conveyed to members of other delegations. In addition, the responsibilities of the Canadian delegation were not clearly defined, both in terms of who was responsible for negotiating which issue and who reported to whom. These problems were exacerbated by several factors. The cost of having Beesley elected to chair the Drafting Committee was that he had less time to devote to co-ordinating the activities of the Canadian delegation. It became harder for his delegation to get his attention for any length of time. Chairing the Drafting Committee also meant that, in order to appear impartial, Beesley could no longer chair any other Conference committees. Furthermore, after 1979, Crosby's periods of attendance at the sessions also became briefer. On his returns, however, he expected to assume his former responsibilities, much to the consternation of those who had carried the ball in his absence. In addition, there was a certain amount of rivalry between the middle-level officers from the Legal Operations Division and those from the other departments. Each group sought to play the senior role in its issue area. There was conflict, as well, as to whether priority should be given to negotiating the best overall treaty or to ensuring that specific possession interests were adequately protected. As was the case in ICLOS, the DEA lawyers were first among equals on the Canadian delegation. The latter was headed by the secretary of state for external affairs, who attended the Conference from time to time, for brief periods. In practice, the Canadian delegation was led by Beesley. He was responsible for co-ordinating Canadian efforts at UNCLOS m. Most of the secretaries of state for external affairs took an active interest in the work of the Canadian delegation and supported the efforts of their officers on the delegation. They also wanted the leadership role to remain within the department. The fact that cabinet instructions to the Canadian delegation were general meant that its senior officers had negotiating leeway. Representatives from departments other than the Department of External Affairs would have preferred to have had the cabinet instructions spelled out in much more precise terms. The Legal Operations Division had the most representatives on the Canadian delegation. The fact that a core group of its officers attended all the sessions of UNCLOS in permitted continuity. These officers had established contacts, were familiar with the issues, and understood the manner and direction in which the negotiations were evolving. This gave them a

149 The Canadian Delegation decided advantage over those who had attended only one or two sessions. Officers from the Legal Operations Division generally spoke for Canada at the Conference. There were, however, some very notable exceptions to this trend. The alternative deputy head of the Canadian delegation, Crosby, was the Canadian spokesperson in Committee One as well as in plenary discussions when Beesley was not present. When highly technical issues were under negotiation, such as the production ceiling and the financial arrangements for the regime of the Area, the experts from the specialist departments assumed lead roles. Nonetheless, responsibility for the overall co-ordination of Canada's policies rested with the Legal Operations Division. The Legal Operations Division benefited from its communication networks, which facilitated information-gathering and strategizing. Following the sessions of UNCLOS m, officers from the Legal Operations Division sent numerous telexes back and forth between Ottawa and the Conference. These included detailed accounts of developments in the negotiations and requests for instructions. They also assisted in the co-ordination of strategies to facilitate effective bargaining. Following the sessions, officers from the Legal Operations Division put together "Assessments by the Canadian Delegation," records of the sessions that circulated widely within Canada. As a result, the reports that were the most likely to be read (that is, by Canadians who wanted to keep informed of developments at the Conference) really reflected the views of the Legal Operations Division. The only Canadian delegate whose prestige in Committee One, at least initially, equalled that of Beesley, the senior DEA lawyer, was Crosby. Crosby's attendance, even for relatively brief periods during the final years of the Conference, was encouraged by the DEA lawyers. In fact, at the request of the latter, the secretary of state for external affairs, in the final three years of the Conference, made a point before each session of asking the minister of state for mines to allow Crosby to join the delegation. As a result, Crosby participated on the Canadian delegation for at least some portion of every session. Clearly Beesley considered Crosby to be a valuable ally. The fact that the secretary of state for external affairs was willing to make the request to the minister of mines, when the DEMR was giving priority to the National Energy Policy, only underlined the DEA lawyers' influence vis-a-vis their minister. The composition of the Canadian delegation further augmented the influence of the DEA lawyers. As discussed previously, they were politically astute in courting allies. They also sought to minimize dissension. Although the composition of the Canadian delegation was decided upon by cabinet, the DEA lawyers had some input into the process. They made recommendations to include certain individuals, such as Crosby. They also effectively objected to other candidates, as will be seen later on. Because of circumstances and effective manipulations, several of the

150 Canada and the International Seabed federal departments and nongovernmental organizations - those that either would not have supported or would actively have opposed the priorities of the DBA lawyers in Committee One - were not represented on the Canadian delegation. For example, for the senior echelons of the DITC, the Conference negotiations were not important enough to warrant sending an officer. The MOSST, moreover, never had a representative on the Canadian, delegation, even during the period when one of its officers was actively involved with the transfer of technology issues. In 1980, however, the meetings of both UNCLOS m and UNCTAD v in Geneva happened to overlap. While in Geneva to attend the UNCTAD session, Bradley (MOSST) was able to spend two weeks at the resumed ninth session of UNCLOS m, as an informal member of the Canadian delegation. He also attended two weeks of the tenth session in New York but, again, he was not a formal member of the Canadian delegation. Because only the formal members of the delegations were permitted to attend its closed meetings, Bradley was excluded. Several civil servants involved with the law of the sea negotiations at the time suspected that Bradley was purposely kept off the Canadian delegation because he opposed the views of its dominant members.26 The UNCLOS m negotiations, however, were never important enough for the MOSST senior officials, let alone the minister, to insist upon representation at the Conference. The fact that Bradley was unable to get on the Canadian delegation was one of the factors that prompted the civil servants in the losing coalition to approach CBIIAC.27

The mining companies and CBUAC were never invited to join the Canadian delegation; nor did they exert pressure to do so. Their exclusion reduced the possible sources of friction. On two occasions, relations between the DEA lawyers and MAC became strained over the latter's participation on the Canadian delegation. In June 1980, MAC responded to an invitation from the Legal Operations Division and nominated Gordon Peeling as its representative to the ninth session. Peeling, the senior governmental affairs advisor for Inco Limited, had previously been sent by Inco as an observer to several UNCLOS m sessions. The DEA lawyers opposed the nomination of Peeling on the grounds that his employer, Inco, was intending to apply for a license to explore the Area, under the us legislation. Such a move was viewed by many countries, especially developing states, as seriously undermining the principle of the common heritage of mankind. The DEA lawyers were concerned that having an employee of Inco on the Canadian delegation might be construed at the Conference as support for the u.s. unilateral legislation. Although the incident triggered an exchange of letters, it did not seem to undermine relations in the long run. The fact that Peeling never became a member of the Canadian delegation does however indicate, at least in part, the influence of the DEA lawyers. A second problem arose in June 1980, when a letter drafted by the MAC

151 The Canadian Delegation fell into foreign hands. The letter, written by Keyes, was based on his talks with representatives of the mining companies. It was subsequently distributed to these companies for information. Noranda, because of an agreement with its consortium partners to share information, sent the letter on to Rio Tinto Zinc which, in turn passed it on to the British government. At the next session, the United Kingdom and the United States circulated the letter in an attempt to discredit the Canadian delegation in the eyes of its allies in the Group of 77. Although the DBA lawyers were first among equals, the functioning of the Canadian delegation depended on the joint efforts of all its members. In reality, the delegation operated within the boundaries determined by the Conference setting and international environment. Although the deep divisions within the Committee One prevented Canada from realizing its goal of a universally acceptable treaty, the Canadian delegation played a creative role in seeking to bridge the gap between the developed and developing countries. Furthermore, the Canadian delegation and its allies were able to ensure that four seats on the Council were allocated to mineral-exporting countries. They also succeeded in having a production ceiling included in the Law of the Sea Convention, despite strong opposition from the potential seabed mining countries to delete quantitative controls. Although the Canadian delegation suffered to some extent from inadequate co-ordination and poor discipline, its assets outweighed its shortcomings. Together, its members had extensive expertise in the technical issues and in conference diplomacy. These attributes, together with the will to use them, enabled the Canadian delegates to respond creatively to developments as they occurred. The result was a great deal of success in realizing the negotiating objectives in Committees Two and Three, while several significant achievements in Committee One were also accomplished.

CHAPTER EIGHT

The Policy-Making Process

Having examined the range of Canada's interest in deep seabed mining, its domestic actors and their policy priorities, it is time to bring together the various component parts of the process by which Canada's policies on deep seabed mining were formulated. How did the process operate? Why was priority given in Committee One to Canada's milieu goal of securing an internationally acceptable treaty and its possession goal of safeguarding the Canadian nickel industry? And, finally, what can this case study tell us about the relative importance of domestic determinants and international constraints, the nature of intra-governmental decision making, the relationship between government decision makers and interest group representatives, the involvement of provincial governments in foreign policy, and the utility of international conferences in solving global problems? SYNOPSIS

The formal mechanisms for establishing Canada's positions on deep seabed mining were clearly delineated. Cabinet had ultimate authority and was responsible to the Canadian people for decisions taken. ICLOS was responsible for formulating recommendations for cabinet, a mandate it carried out through a process of interdepartmental negotiations. All interested departments were invited to send representatives to ICLOS to present their respective concerns and goals. Collectively, members of ICLOS sought to formulate policy recommendations that best reflected Canada's interests in the deep seabed mining issues. Recommendations that received cabinet approval then became Canadian policies that bound civil servants both in Ottawa and abroad. The process of formulating Canada's policies on deep seabed mining also provided for consultations with interested groups outside the federal government. This step was deemed necessary, initially to determine Canada's interests in the negotiations and, later, to enhance the legitimacy of the govern-

153 The Policy-Making Process

ment's claims that its positions adequately reflected those interests. These consultations also provided an opportunity to keep interested groups informed of relevant developments. In practice, the process by which Canada's policies on deep seabed mining were formulated did not adhere strictly to the formal structure described above. Although cabinet approved the policies pursued by the Canadian delegation in Committee One, it did not formulate them. As was pointed out in chapter 4, cabinet ministers at that period were giving priority to national unity, economic recovery and, particularly in the latter 19705, to the winning of elections. In addition, there was no strong political impetus for changing the direction of Canada's policies. The secretary of state for external affairs, the minister of energy, mines and resources, and the secretary of state for mines agreed with the positions put forward by the civil servants within their respective departments. No other ministers were willing to debate the matter in cabinet. The representations received by cabinet ministers from the governments of Ontario, Manitoba, Sudbury, and Thompson, as well as from the USWA, all supported the official Canadian position on the production ceiling. The countervailing views of CBIIAC and MAC were not deemed sufficiently important to warrant a reversal in policy direction. As a result, cabinet as a whole devoted little attention to deep seabed mining. Thus, while Canada's policies in this area required cabinet approval, their content resulted from initiatives taken by civil servants. Within the public service, ICLOS provided all interested departments with an opportunity to participate in the drafting of policy recommendations. In the case of the deep seabed mining issues, ICLOS was less of a brokerage forum than the formal policy-making structure would suggest. The general direction of Canada's policies on deep seabed mining was firmly established before the DOF, DITC, and MOSST became involved. Thus, while the contents of the recommendations to cabinet were discussed in ICLOS and often included competing policy options, they usually concluded by accentuating the advantages of accepting the priorities of the DBA lawyers. This is not to say, however, that other actors played no role in determining the content of the memoranda to cabinet. For example, the recommendations concerning the production ceiling required the expertise and the support of the DEMR officers, while representatives from the DOF were very active in drafting and negotiating Canada's policies on anti-subsidization and fair market access clauses. The substance of final policy resulted from the superior strength of the first coalition, the DBA lawyers in particular, rather than from substantial debate and then consensus in ICLOS. Nevertheless, debates in ICLOS served several functions. They enhanced the legitimacy and credibility of policy proposals, because officers from the DOF, DITC, and MOSST had the opportunity to present and define their positions in an interdepartmental forum. The discussions in ICLOS made the DBA lawyers aware of dissenting views

154 Canada and the International Seabed and of considerations that had previously received little attention. In fact, in the final years of the Conference, several of the more junior DEA lawyers became increasingly sympathetic to the arguments put forward by their counterparts from the DOF, DITC, and MOSST. ] Finally, the participation in ICLOS of civil servants from these three last departments helps explain why Canada devoted attention in 1980 to negotiating anti-subsidization and fair market access clauses and, during the final year of the Conference, to trying to increase the safeguards for owners of technology. While they did not have the strength to change the direction of Canada's policies, officers from the DOF, DITC, and MOSST made their counterparts in the other two departments aware of the competing priorities that could not be completely ignored. A second source of policy initiatives was the Canadian delegation. It enjoyed considerable leeway in its negotiating position, inasmuch as the cabinet instructions outlined the broad objectives rather than the specific positions to be taken on each issue. The decision to present a Canadian formula for a nickel-production ceiling in 1976, and to establish the Group of Middle Industrialized States in 1982, originated with the Canadian delegation. The DEA lawyers argued that both actions fell within the goals approved by cabinet: to protect Canada's nickel industry and to promote agreement on a law of the sea treaty. The relationship between the federal government officials and their allies from outside the federal government was symbiotic, although the former were dominant. It was the federal government that was responsible for identifying Canada's interests and representing them at UNCLOS m. Federal officials spoke for Canada in formal meetings. These same officials also had access to information from around the world relating to deep seabed mining. Allies outside the federal government provided valuable support however. Once the business organizations became full participants, officers from MOSST, DOF, and DITC no longer had to fight alone to protect the interests of business against formidable opponents. The envoys, especially of CBIIAC, put the case forward very forcefully. Federal civil servants who agreed with the business perspective were able to add support from the sidelines. As a result, much of the conflict of opinion that took place in these meetings was voiced by the USWA and the provincial officials, on the one hand, and the representatives of the business organizations, on the other. Having nongovernmental allies carry the fight in these meetings was particularly important to dissenting voices within the federal civil service. One of the latter told an ally in the private sector that, as a member of ICLOS, he was not supposed to criticize publicly the policies of the more senior members of the Committee. Representatives from outside the federal government however, even if they did not want to sever relations with the more senior members of ICLOS, felt free to voice their opinions and to argue their positions. Having allies, therefore, was very important for civil serv-

155 The Policy-Making Process

ants in the dominant positions, as well as for those opposing their priorities and tactics. The involvement of provincial governments and nongovernmental organizations served three other important functions. First, it helped to build support for Canada's policies within the country. Such support was particularly apparent among those groups whose representatives were in agreement with the official positions. Even among the groups that opposed the direction of Canada's policies, participation served to limit, at least to some extent, the severity of the criticism. For example, in the initial meetings involving members of ICLOS, CBIIAC, and MAC, the civil servants found MAC to be less critical than CBIIAC. Since the two business organizations shared similar perceptions, the difference was attributed to the fact that MAC had participated on the Canadian delegation and, hence, understood the factors at the Conference that limited negotiating options. As time went on, letters from officials of CBIIAC to the Legal Operations Division indicated an increasing awareness of the restrictions faced by the Canadian delegation at UNCLOS m. Although this awareness did not alter CBIIAC'S position, nor curtail its criticism on the substantive issues, its level of sensitivity to the positions of the DEA lawyers increased noticeably. Second, provincial and nongovernmental allies were helpful in engendering support abroad through their transnational links. For example, in attempts to promote their objectives, the USWA and CBIIAC contacted their respective counterparts in other countries. Although the USWA was not successful in courting foreign allies, it was successful in its efforts to broadcast abroad the importance of the production ceiling to Canadian nickel miners, thereby reinforcing the assertions of the Canadian delegation. For its part, the CBIIAC capitalized on its alliances with business groups in the us. Although this did not affect the group's bargaining position in Canada, it did allow the CBIIAC to exert influence, at least indirectly, in Washington. Finally, provincial governments and nongovernmental organizations injected expertise into the policy-making process. Those sent to act as advisers on the Canadian delegation brought not only technical competence, but also the unique perspective of their respective organizations, to the forum. In sum, participation by actors from outside the federal government did not precipitate any major changes in policy. It did, however, serve to make the federal officers more aware of the interests of various groups of Canadians.2 Provincial and nongovernmental actors contributed expertise to the deliberations. They also served as valuable allies in the interdepartmental negotiations and activated a wide range of communication networks, some of which had an impact on UNCLOS m. Despite the number of actors and the vast geographic distances involved, Canada's policies on deep seabed mining were consistent throughout the Conference. The processes of formulating these policies in Ottawa and at

156 Canada and the International Seabed UNCLOS m were all well co-ordinated. Several factors facilitated this coordination. First, although fewer actors participated on the Canadian delegation than in ICLOS, there was considerable overlap in the memberships of each body. Second, the same group of civil servants - the DBA lawyers who chaired ICLOS and led the Canadian delegation - dominated both in Ottawa and at UNCLOS m. Third, enormous efforts were made to keep the members of the Canadian delegation and ICLOS abreast of relevant developments. During the UNCLOS m sessions, several telexes were sent back and forth daily between Ottawa and the Canadian delegation. Those from the latter reported on developments at the Conference and on the positions which Canada and other key countries had taken. They frequently included strategies for future action to enhance Canada's objectives. The officers of the Legal Operations Division in Ottawa received information from Canadian posts all over the world and from domestic actors both inside and outside the federal government. After assessing this material, they coordinated its redistribution. They were also in a good position to contact the key ministers, especially the secretary of state for external affairs, when their counterparts at UNCLOS m needed authorization to proceed with a position or a tactic. The major explanation for the choice of Canada's priorities in Committee One was the superior bargaining strength of the DEA lawyers. The most important factor in ensuring this dominance was the ability of these lawyers to retain the support of the only ministers who took a significant interest in the deep seabed mining issues: the secretary of state for external affairs; the secretary of state for mines; and the minister of energy, mines and resources. The individuals involved in that last portfolio were less actively involved with the production ceiling than were their colleagues in the other two portfolios. Nevertheless, the proponents of the formula also had their support. To a large extent, then, ministerial support resulted from the effective lobbying of the DEA lawyers. On the production ceiling, they were frequently joined in their efforts by Crosby (DEMR). The positions taken by the secretaries of states for external affairs and the secretary of state for mines were based primarily, but not entirely, on the advice of these civil servants. They stemmed, as well, from direct involvement with the issues. The secretaries of state for external affairs were active in promoting Canada's policies on deep seabed mining. Most of them attended portions of the sessions and took a significant interest in the negotiations. Over the course of the Conference, successive secretaries of state for external affairs discussed the production ceiling with senior officials from other countries, especially the us, both at the Conference and at meetings held in other settings. Their support for Canada's official positions in Committee One were, therefore, not just a rubber stamping of the policy recommendations of

157 The Policy-Making Process

their underlings. Their involvement enabled them to reach their own conclusions, although they were considerably influenced by the DBA lawyers. As MP for Sudbury, Judy Erola knew the importance of nickel to the economic well-being of her constituents. Her giving of support to the production-ceiling priority, therefore, was not just a case of following the advice of civil servants. She was personally aware of the needs of her community and thus receptive to the lobbying efforts of the USWA and, to a much lesser extent, the municipal politicians. The conflict of opinion over priorities in Committee One occurred at the bureaucratic level but was not carried over into cabinet. The ministers of finance, of industry, trade and commerce, and of state for science and technology did not consider the Committee One issues to be of sufficient importance to warrant fighting over them with their cabinet colleagues. In addition to ministerial support, the DBA lawyers had several structural advantages over the civil servants from other departments, who opposed their choice of priorities in Committee One. Structurally, the DEA held most of the key positions. Its legal adviser chaired the meetings of ICLOS. The Canadian delegation was headed by the secretary of state for external affairs and led on a day-to-day basis by Beesley. On a functional level, the DEA lawyers coordinated the work of both ICLOS and the Canadian delegation. The Legal Operations Division had more personnel on the Canadian delegation than any other department. In addition, several of these people attended the sessions on a consistent basis, which meant that they became well versed in the specifics of the UNCLOS m negotiations. A major factor in the priority accorded the production ceiling was its constituency of supporters. The secretary of state for external affairs, the minister of energy, mines and resources and, subsequently, the minister of state for mines all advocated the nickel production ceiling. Civil servants from the DEA and DEMR worked to make it a reality. They were joined in their efforts by representatives from the USWA and by technical experts from Ontario; in the final years, Manitoba also threw in its support. Together these actors formed a very formidable alliance. The civil servants who opposed giving the production ceiling priority over Canada's interest as an industrialized country were less numerous and more junior than the senior DEA lawyers and Crosby. In addition, they became involved after the policies had been formulated. It is always harder to alter established policies than to ensure their continuation. In effect, therefore, although the MAC and CBILAC were respected business organizations, their lobbying efforts came too late. By the late 19708 policies were firmly entrenched. In addition, they would have needed strong ministerial support to compete successfully with the DEA lawyers. Timing thus had a significant impact on the bargaining positions. It also affected the size of the resources that various actors were willing to allocate

158 Canada and the International Seabed to the policy-making process. The lay-offs in the Canadian nickel industry during the latter 19708 made the threat of additional competition from deep seabed mining all the more serious to the USWA. Although officers from the DOF, DITC, MOSST and some from the DEMR considered the proposals put forward by the Group of Middle Industrialized States to be an improvement over previous provisions, and the business leaders concurred with this view, it was really too little, too late. By that time, business was looking to the us to protect the interests of the industrialized states. The fact that there were differing opinions on Canada's policies in Committee One, within both the federal government and the country as a whole, was neither counterproductive nor unique, either to the Canadian policymaking process or to those of other states. Since each government's department had a different mandate and a specific set of interests to protect, it was not surprising that the priorities of the participants at times conflicted. After all, civil servants are responsible for certain interests within the mandate of their department or division. Likewise, in a heterogeneous society, the interests of some groups are bound at times to conflict with those of other associations. Organizations, such as MAC and CBIIAC, are formed precisely because of this fact. They seek to ensure that the policies taken reflect the common interests of their members. Many of the countries participating in the Committee One negotiations experienced a diversity of policy preferences within their borders. Within the us government, views varied considerably with regard to the approach members of its delegation should take in the deep seabed mining negotiations. For example, the us Department of Defence advocated making concessions in Committee One so as to ensure that the agreements worked out in Committees Two and Three secured the freedom of navigation. In contrast, the Department of the Interior was concerned with the rights of the us mining industry to proceed with deep seabed mining under a free enterprise system. Thus the conflict and co-operation inherent in the process of formulating Canada's policies on deep seabed mining was not unusual, whether for the country or in comparison with what went on in other liberal democratic states. What was unique was the specific combination of actors and interests, as well as the set of policies, that emerged. CONCLUSIONS

We now turn to the questions posed both in chapter i and again at the beginning of this chapter. What can this case contribute to our understanding of the five identified crucial issues in Canadian foreign policy? Our investigation begins at the broadest conceptual level and considers a subject to which students of Canadian foreign policy have devoted surprisingly

159 The Policy-Making Process

little attention: the relative importance of international constraints and domestic determinants. International Constraints and Domestic Determinants In 1970 the Trudeau Government announced that Canadian foreign policy was to be "the extension abroad of national policies."3 Despite the focus on domestic determinants explicit in this bold pronouncement, international factors exercised a vital role in determining which national interests would receive highest priority in Committee One. External developments set the tone and direction of the deep seabed mining negotiations. These included the oil "crisis", as well as the deterioration in international economic conditions in the late 19708. Moves by several Western industrial states to enact deep seabed mining legislation exacerbated North-South tensions and increased the sense of urgency among many other countries to reach agreement. The negotiation of similar issues in other international fora influenced positions in Committee One, since countries like to appear consistent and precedents provide guidelines for action. Several previously existing alliances also operated in Committee One, thereby affecting bargaining coalitions. All these factors established boundaries within which Canadian policy makers had "to operate. In October 1973, just prior to the first session of UNCLOS in, the ArabIsraeli war erupted; that, in turn, precipitated the oil "crisis". The latter had several repercussions for the Conference in general and for the negotiations pertaining to the deep seabed regime in particular. The resulting higher cost and potential scarcity of imported petroleum products, for one, increased the desire of coastal states to develop the resources of their continental shelves. The "crisis" also affected the positions in Committee One. In the first place, the large increases in the price of oil added significantly to the cost of refining laterite, although not sulphidic, nickel. The cost of refining the metal found in the manganese nodules also increased. As a result, the competitive position of Canada's sulphidic nickel industry was enhanced relative to that of the laterite nickel producers, located primarily in the developing countries, and of the potential deep seabed mining operations. Because of these rising oil prices, Canada gained a significant advantage over its competitors. But these prices also made it easier for deep seabed miners to press their governments to provide subsidies to offset the higher costs of producing strategic minerals from the Area. What was wanted was security of supply. The success of OPEC encouraged other commodity exporters to consider pursuing similar tactics.4 Both the OPEC policies, themeselves and the fear that they might be emulated by others raised concerns among the in-

160 Canada and the International Seabed

dustrialized countries regarding the security of supply, not only of oil, but of other resources as well. The latter included the minerals found in manganese nodules. On the one hand, these factors made the industrialized countries more eager to negotiate an international agreement so that deep seabed mining could proceed. On the other hand, these factors increased the level of tension over commodities that already existed between the developing and industrialized states. By the end of the 19705, relations between the developed and developing countries had deteriorated from that of the mid-1970s, when Kissinger presented his compromise proposals to the Conference. This change came about largely in response to economic factors.5 Economies around the world had taken downward turns. The result was an oversupply of raw minerals on international markets. Economic recoveries were expected to be slow. In the course of these hard times, the industrialized states became more reticent to make concessions to developing countries. Western retrenchment was also fueled by a growing irritation, especially in the us, with the prevalent anti-American and anti-Western sentiments being expressed by less developed countries in the United Nations General Assembly and other multilateral meetings. This retrenchment was exemplified at UNCLOS m by the increasingly hard lines taken by the major consuming countries in Committee One. Such developments were in no way unique to UNCLOS m but were seen in other fora as well, including UNCTAD, and on such other issues as the cutbacks in overseas development aid, decreased willingness to assist with debt relief, and increased protectionism in trade. Outside the Conference, moves by several developed countries to enact unilateral deep seabed mining legislation further undermined relations in Committee One. Even prior to the commencement of UNCLOS m in 1973, a deep seabed mining bill had been introduced in the us Senate by Senator Lee Metcalf.6 Hence the threat of unilateral legislation had existed from the beginning. All countries nevertheless expressed a preference for an international regime. To the developing countries, it was a prerequisite for their direct participation in activities in the Area; to the industrialized countries, an international regime offered better security for investments in deep seabed mining operations. But in the latter 19708, when the us, FRO, and UK each passed deep seabed mining legislation, the sincerity of the commitment of major industrialized countries to negotiate in good faith was seriously called into question. Although all these deep seabed mining bills included provisions that national legislation would be superseded once the Law of the Sea Convention came into force, the threat to enact deep seabed mining legislation was a strong bargaining card. Furthermore, any development of the resources that took place prior to the establishment of an international regime was to be accomplished by corporations operating

161 The Policy-Making Process

out of the developed countries. As a result, those with the necessary financial resources and technological expertise had the opportunity to lay claim to the best mine sites, before any other competitors entered the field. Naturally, such developments were not acceptable to other countries. UNCLOS m did not take place in a vacuum. Some of the groups in Committee One were already active outside the Conference setting. The NorthSouth alignments, which had existed long before the first session of UNCLOS m, provided the major coalitions. The experience and the established organizational structure of the Group of 77 made it a strong and vocal mouthpiece for the aspirations of developing countries. Notwithstanding the economic and technical weakness of the group, us Secretary of State Henry Kissinger made several very significant concessions in 1976 in order to win their support for the parallel banking system. Naturally, the reputations of countries in other international settings affected how they were viewed at UNCLOS m. The Group of 77, for instance, was well aware of Canada's vehement opposition at UNCTAD to mandatory requirements to transfer technology.7 While forming alliances with Canada could serve as a useful tactic at times, the developing countries realized that Canada's positions, like those of other participants, were motivated primarily by selfinterest. Broadly defined, this self-interest included negotiating a treaty that the less developed countries would find palatable. On at least one occasion, the Group of 77's antagonism worked to Canada's advantage. This was the case with the fair market access clause that Canada and Australia sought to have included in the Law of the Sea Convention. At first the Reagan administration opposed the idea, largely as a tactic to get the necessary bargaining leverage that would permit the production ceiling formula to be deleted from the text. This stance appeared odd for an administration devoted to free enterprise. The us tactic backfired, however, because other delegations interpreted the refusal to accept an antisubsidization clause as an indication that the us was planning to subsidize the deep seabed mining operations of its nationals. This interpretation added credibility to the contentions made by the Canadian delegation throughout the negotiations concerning the threat of subsidization. As a result, the Group of 77 insisted that the production ceiling be part of the convention. While not a priority, the group was also willing to support the fair market access clause. The UNCLOS m negotiations were affected by developments in other fora, where some of the same issues were being discussed. In 1978, for example, the OECD included the taxation of deep seabed mining activities on its agenda. Technology transfers were being discussed at UNCTAD and by the OECD. Although instructions to Canadian delegations at these various meetings emphasized the need for consistency, Canada, in practice, took a much softer line on technology transfers at UNCLOS in than it had at

16a Canada and the International Seabed UNCTAD. At UNCTAD, Canada not only advocated that such transfers were to be carried out on a voluntary basis, but also frequently spoke on behalf of Group B, the Western industrialized countries. Brazil, a leading voice for the Group of 77, was particularly effective in pointing out such inconsistencies, much to the discomfort of Canadian delegates to UNCTAD. The policies of all countries, even the most powerful, are influenced by international factors. In this case, no country could dictate terms to the rest of the Conference. Recognition of this fact lay behind the very considerable concessions announced by Henry Kissinger in 1976. Furthermore, although the us refusal to accept the Law of the Sea Convention in April 1982 undermined the success of the Conference, it did not prevent the majority of the world's countries from accepting the Convention or from participating, subsequently, in the work of the Preparatory Commission for the ISA. Just as unilateral action by the us threatened the very existence of the ISA, the latter heightened the cost to American enterprises trying to start up activities in the Area. Because the superpowers could not dictate terms, it was obvious that smaller powers, such as Canada, would also be unable to do so. Indeed, the findings of our case support Kim Nossal's contention that the international environment profoundly influences Canadian foreign policy.8 Of all the characteristics of the international system that affect a state's foreign policy, the distribution of power has been described as the most critical.9 Just what, then, was Canada's status in the deep seabed mining negotiations? Students of Canadian foreign policy have engaged in long debates on Canada's status in the world. David Dewitt and John Kirton, for example, conclude that Canada is a principal power. The term connotes three characteristics. First, they are the states in the international hierarchy that stand at the top of the international status ranking, collectively possessing decisive capability and differentiated from lower-ranking powers by both objective and subjective criteria. Secondly, they act as principals in their international activities and associations, rather than as agents for other states or groupings or as mediators between principals. And thirdly, they have a principal role in establishing, specifying, and enforcing international order.10 But the status conferred by the term "principal power" clearly does not describe Canada's position in Committee One. For one thing, Canada did not rank among the countries having a decisive capability. Despite being the world's largest exporter of nickel, Canada was not even consulted before the introduction of the production ceiling. Furthermore, Canada's influence at the Conference was not the result of its extensive power capabilities in a range of fields. Instead, its influence stemmed from its ability not only to persuade others of the merits of its own policies but to build coalitions. In stark contrast to the status conferred by the term "principal power",

163 The Policy-Making Process

several writers in the late 19605 and early 19705 described Canada as a satellite of the us. 11 This theme continues to appear in the public policy literature. Wallace Clement accuses the Canadian political elite of helping to perpetuate their country's subservience to the us by giving priority to the maintenance of close connections with American capital, at the expense of developing an independent foreign policy.12 James Laxer also paints a gloomy picture of Canada's growing dependence on American capital.13 This trend, he argues, enables the us to exert greater leverage over Canadian decision makers and to severely curtail Canada's ability to act. But, just as Canada cannot be considered a principal power in deep seabed mining negotiations, it cannot be considered a satellite. As was apparent in chapter 3, Canada's policies in no way followed the dictates or even the lead of the us. Quite to the contrary, Canada voiced strong criticisms of several major us initiatives: the introduction of the production ceiling; the decision to pass unilateral, deep seabed mining legislation and to conduct a review; and, most importantly, the us action in voting against the Law of the Sea Convention in 1982. Canada's status in Committee One can best be described as that of a middle power, a term preferred, in fact, by many students and practitioners of Canadian foreign policy.14 Canada could not determine the nature of the international environment or even exercise a major influence over it. But it did have technical expertise, considerable financial resources, and impressive diplomatic skill - all of which enabled it to organize coalitions, argue cases effectively, and act as an intermediary to bridge the North-South gap. On several occasions, the Canadian delegation maximized its efficacy by its choice of responses to changes in the international environment. Following the Reagan administration's review, the Canadian delegation advocated alterations in the provisions for technological transfers and in the financial arrangements. The move was justifiable, in terms of Canada's milieu objectives of securing an international treaty, and of promoting a free enterprise system. It also addressed some of Canada's possession goals as a developed country. The middle powers, of which Canada was a prominent and seasoned veteran, were instrumental in facilitating the work of the UN. According to John Holmes, their contributions included "getting together sponsors for compromise resolutions, lobbying to avoid dangerous confrontations, collaborating with the efforts of the Secretary General, and in a thousand ways seeking to reduce tension. It can be argued that, insofar as it can be worked, the middle powers made the UN work."15 Canada's middle-power role in Committee One was, therefore, in keeping with its general posture at the United Nations. The international environment and actions of other states set the agenda at UNCLOS in. They presented a set, albeit an ever-changing set, of givens to which Canadian decision makers had to respond. This was typical of

164 Canada and the International Seabed

foreign policy making during the Trudeau era, when almost all the major decisions were made in response to external developments.16 The pattern was not unique to Canada. Even today, all countries are forced to respond to changes in the international environment and to the actions of other states. Of course, the major powers were better able to perpetrate changes and elicit responses than were middle powers like Canada. Canada could in no sense dictate outcomes at UNCLOS m, but it had some notable successes in influencing the course of the negotiations. The decision-making procedures at UNCLOS m, for example, were based on a Canadian proposal. Canada also took the lead in promoting alignments among states that shared similar objectives. The Land-based Producers' Group resulted from a Canadian initiative. Such alignments gave a credibility and strength to the Canadian position which it could never have had unilaterally. For the most part, however, the actions of other states and developments abroad set the agendas at UNCLOS in and established the boundaries within which the Canadian policy makers had to operate. The international environment, however, does not offer an adequate explanation of why certain Canadian interests were given priority over others. The decision to propose a Canadian nickel-production ceiling, for example, was sparked by the inclusion of a formula in the Revised Single Negotiating Text. But the decision to continue to give priority to the production ceiling, even in the latter 19705 when the provisions for the transfer of technology were beginning to be seriously criticized, reflected the priorities and bargaining strengths of Canadian actors rather than the exigencies of the international environment. In short, the international environment set the parameters within which policy choices had to be made. The actual selection of priorities must be explained in the terms of the relative bargaining strengths of the diverse policy makers. Governmental Politics According to the popular governmental politics approach,17 public policies result from a bargaining process in which diverse governmental actors interact to affect outcomes. Issues often come within the jurisdiction of a few or even of several government departments and agencies. As a result, they share responsibility for policy formulation. Since each department has its specific areas of interest to protect and promote, they compete to influence policy outputs. The governmental politics approach emphasizes the identification of the relevant actors and their respective goals, the assessment of their relative bargaining resources and skills, and the determination of the nature of the bargaining process. Many of the tenets of the govermental politics approach are relevant to our case study. The functional responsibilities of five federal departments

165 The Policy-Making Process

overlapped. The DEA was in charge of coordinating Canada's policies at UNCLOS m. The DEMR was the lead department in the field of mining, hence its involvement in negotiations directly affecting the economic well-being of the Canadian mining industry. The DOF, for its part, sought to minimize the economic costs imposed on Canada by the law of the sea treaty. The DITC sought to ensure that the law of the sea provisions benefited Canadian industry. Finally, MOSST was concerned with safeguarding technology from mandatory transfers. Governmental politics were most evident among federal civil servants, who competed for prestige, resources, and influence in order to enhance their respective bargaining strengths.18 Representatives from all five departments prepared position papers arguing in favour of their choices of priorities and against those that conflicted with them. In order to enhance the credibility and legitimacy of their respective positions, both in the interdepartmental negotiations and in the eyes of the cabinet ministers, federal civil servants sought outside allies. In addition to legitimacy, these allies contributed expertise that was useful in developing and presenting policy positions. Although cabinet approved the policies pursued by the Canadian delegation, it was not the nexus of decision making found in the decision concerning the new fighter aircraft.19 The fact that cabinet decision making resided in the committees, rather than in the plenary as had been the case prior to 1968, did not affect policy outcomes in the case of deep seabed mining. The process was dominated by the secretary of state for external affairs, just as it had been prior to the establishment of the cabinet committee system. Other ministers either agreed or acquiesced. Governmental politics, in the sense of conflict and competition among cabinet ministers with differing perceptions and goals, was noticeably absent in this study. Governmental politics did occur, however, in the sense of cooperation and consensus building. Consensus was easily achieved in cabinet, largely because the ministers of finance, of industry, trade and commerce, and of science and technology deferred to the secretary of state for external affairs, in particular, and also to the secretary of state for mines and the minister of energy, mines and resources. According to the governmental politics paradigm, the policy-making process involves players with different interests; hence trade-offs must be made. The method of reconciling differences depends on the relative status and influence of the participants.20 When they are fairly evenly matched, compromises must be negotiated. In contrast, when the process involves sets of actors with disparate status and influence, the interests of the stronger tend to take precedence. In either case, governmental politics continue to operate, although the intensity of the conflict is diminished. The discrepancy in the bargaining strengths of the two coalitions meant that the DEA lawyers did not have to make concessions. Although civil servants from the DOF, DITC, and MOSST objected to giving priority to the pro-

166 Canada and the International Seabed duction ceiling, the will of the dominant coalition prevailed. This victory did not, however, discourage the members of the weaker group from continuing to draft position papers, to argue their case as forcefully as possible, and to seek outside allies. Within the dominant coalition, the DEA lawyers once again took charge. At the request of Alan Beesley, senior DEMR officer Don Crosby drafted a counterproposal to the Engo production ceiling, even though the latter objected to the concept. Furthermore, Crosby never weakened the solidarity of the Canadian delegation by publicly criticizing the concept.21 Instead he worked to ensure that the production ceiling in the Law of the Sea Convention would not undermine future markets for Canadian nickel from land-based mines. Meanwhile, civil servants from the DEA and DEMR agreed to tactics that would not jeopardize the chances of negotiating a comprehensive law of the sea treaty, which was an important objective of the DEA lawyers. The cohesiveness of the senior civil service has been credited with militating against conflict within the policy-making process in Canada. Nossal points out that while bureaucratic politics take place in both Canada and the United States, the process in the former is less prone to open conflict and more conducive to the use of compromises to resolve differences.22 The variations in tone and outcome are attributed to the greater cohesiveness found among senior Canadian civil servants, as compared to their us counterparts.23 This feature has considerable relevance to our case study. Within the Department of External Affairs, the legal advisor, the director of the Bureau of Legal Affairs, and Beesley all co-operated to present a united front when dealing with other departments. Of all the civil servants who participated in the deep seabed mining negotiations, both in Ottawa and at UNCLOS m, the most senior came from the DEA and DEMR. Their cooperation was critical to ensuring that the production ceiling was made a priority for Canada. The united front presented by Beesley and Crosby in public on the production ceiling affected both the tone and the outcome of the policy-making process. It muted the criticisms of the less senior members of their departments, who questioned the utility of quantitative restrictions.24 At times, it also discouraged their peers in other departments from becoming involved, as was the case in 1976 with Percy Eastham, director general of the Office of General Relations in the DITC. The findings of our case study differ in several respects from those of other writings in the field. A significant point of departure is the role played by cabinet. In examining the new fighter aircraft decisions, Michael Atkinson and Kim Nossal conclude that "the Canadian cabinet had structured the decision-making process in a fashion that all but eliminated the

167 The Policy-Making Process

possibility of legitimate conflict between the bureaucratic participants."25 In contrast, cabinet made no effort to reduce, let alone eliminate, the interbureaucratic struggle over the deep seabed mining issues. The bargaining resources and strengths of the DEA lawyers and their allies far outweighed those of the competing coalition. As a result, there was no need for the secretary of state for external affairs, the secretary of state for mines or the minister of energy, mines and resources to interfere. Had other ministers been willing to fight on the deep seabed mining issues, the struggle might have been exacerbated in two ways. In the first place, conflict would have occurred at the political level as well as within the civil service. Second, ministerial support would have enhanced the bargaining resources of the second coalition considerably. It would also have encouraged its members to intensify their efforts to affect policy outcomes. The result might have triggered a response reminiscent of Atkinson and Nossal, but it was not required. Second, although several political scientists26 argue that the central agencies have superior bargaining positions and influence compared with the program departments, this was not the case in the formulation of Canada's policies on deep seabed mining. In fact, our study supports Shultz's contentions that the power of the central agencies has been exaggerated, rather than the view of Campbell and Szablowski who claim these agencies are "superbureaucrats" with bargaining positions superior to those of the program departments.27 Of the five central agencies, only the DOF participated in the formulation of Canada's policies on deep seabed mining, and its bargaining strength was considerably weaker than that of the DEA and DEMR. Instead of dominating access to the political leaders, the civil servants from the DOF were unable to persuade their minister even to argue their position in cabinet. The Privy Council Office was originally supposed to provide the secretariat functions for ICLOS. Instead, they were carried out by the Legal Operations Division. Likewise, it was the Legal Operations Division, and not the Federal-Provincial Relations Office, that maintained contacts with Ontario and Manitoba on the deep seabed mining issues. Before one can completely dismiss the idea of central agencies dominating the process of formulating Canada's policies on deep seabed mining, it is necessary to examine the assertion made by Allan Gotlieb, undersecretary of state for external affairs. The assertion - that the DEA was itself a central agency - has been supported by several students of Canadian foreign policy.28 Central agencies are generally distinguished from program departments on the basis of their characteristics and functions. The mandates of program departments, outlined in public statutes, pertain to specific areas of

168 Canada and the International Seabed

jurisdiction. The jurisdictions of central agencies, which are less clearly denned, cover a wider spectrum of policy concerns. As a result, there is likely to be greater functional overlap among the latter than occurs among program departments. Central agencies are concerned primarily with providing co-ordinative and integrative functions for cabinet, so as to facilitate rational decision making. Program departments, on the other hand, are responsible for providing expertise on matters within their respective jurisdictions and for implementing public policies that fall within their mandates. The DBA lawyers did co-ordinate formulation of Canada's policies on deep seabed mining. They also enjoyed superior access to cabinet. In terms of its basic characteristics and primary functions, however, the DEA never ceased to be a program department. Its mandate and overall responsibilities were spelled out in the Department of External Affairs Act. While central agency officers are not necessarily neutral participants in the policy-making process, their role as co-ordinators and facilitators of rational decision making necessitate an aggregation of policy options from diverse sources. It was only in the latter 19705 that the DOF, DITC, and MOSST became involved with the deep seabed mining negotiations. Even then, their involvement resulted from their initiative and not because of efforts made by the DEA to ascertain their opinions, let alone to encourage their participation. The position of the DEA within the government structure did not automatically ensure authority over other departments, nor did it assure superior access to cabinet. The latter was the result of having successfully cultivated the support of the secretary of state for external affairs. Finally, our study shows that the DEA'S Federal-Provincial Co-ordination Division was less active than might have been expected from reading other studies of Canadian foreign policy.29 Throughout the period of UNCLOS m, the division was generally considered to be the principal channel for coordinating federal and provincial positions in foreign affairs.30 At the onset, the Federal-Provincial Co-ordination Division took the initiative in contacting the provinces about matters pertaining to the law of the sea. This function was taken over fairly quickly by the Legal Operations Division, which thereafter assumed full responsibility for such contacts. In spite of these exceptions, the governmental politics approach can significantly enhance our understanding of the process underlying the development of Canada's policies on deep seabed mining. It can also help explain the reasons for which priority was given to negotiating a universally acceptable treaty and to safeguarding the Canadian nickel industry. It does not pretend to be a complete theory of foreign policy making. Nevertheless, it does provide a flexible and comprehensive means of assessing the interaction that takes place among various governmental actors and that influences the nature and the outcomes of the policy-making process.

169 The Policy-Making Process State-Societal Relations Few issues are more important or controversial than the relationship between the government and society in liberal democracies.31 The opportunity for citizens to join with others in promoting specific shared interests is enhanced by interest groups.32 The extent to which government decision makers are receptive to the demands of diverse interest groups helps to determine the degree to which individuals can influence public policies. In spite of these considerations, interest group participation in the Canadian foreign policy-making process has traditionally been a somewhat neglected field of study. Only recently has it begun to attract greater attention.33 Statist and Marxist approaches compete to explain the relationship between government decision makers and societal groups. The former derives its name from the dominant and relatively autonomous role exercised by the state in the policy-making process. It assumes that the government policies reflect the government's own preferences. Definitions of the state vary considerably. The state, as conceived by Eric Nordlinger and Kim Nossal, closely resembles the view of government depicted by the governmental politics approach.34 Politicians and civil servants, each with their own perceptions of the national interest, interact to affect policy outcomes. Public policies are accordingly determined primarily by the relative bargaining strengths of the competing sets of governmental actors, even when there is vocal and articulate opposition from significant interest groups. Stephen Krasner offers an alternative conception: "states (defined as central decision-making institutions and roles) can be treated as unified actors pursuing aims understood in terms of the national interests."35 Obviously, institutions and roles significantly affect the preferences of an individual decision maker, as well as the nature of the process by which policies are formulated and implemented. But given the importance to this study of individuals having preferences which they sought to have translated into policies, the concept of the state offered by Nordlinger and Nossal is the most appropriate for our purposes. The tenets of statism are challenged by the instrumental Marxists, who see the state functioning not with considerable autonomy but in response to demands from society. Public policies, say the Marxists, reflect the interests of the capital-owning class.36 They also argue that public officials ascribe to the values of capitalism and, hence, either act at the behest of the capitalist class or in its interest. Several recent studies bolster the claims of the instrumental Marxists. Michael Webb and Mark Zacher, for example, have concluded that Canada's policies on intergovernmental mineral regulations reflected the interest of Canadian mineral companies.37 They give two major reasons for this policy outcome. One is that government decision makers are more

170 Canada and the International Seabed receptive to representations by the mining industry than to those of other interest groups. The second is that the mining industry has superior resources and technological expertise, thus enabling it to lobby more effectively than other nongovernmental organizations. But Canada's policies on deep seabed mining contrast sharply with the predictions of instrumental Marxism and the findings of Webb and Zacher. The interests of labour, not business, were reflected in Canada's policies on deep seabed mining. This was not the result of superior resources, nor of better lobbying strategies on the part of the USWA. In fact, both business and labour had different but important bargaining resources. And their strategies were remarkably similar. The USWA represented large blocs of geographically concentrated voters. Canadian unions, however, have not been very successful in delivering the vote. Moreover, electoral strength is a greater consideration for elected politicians than for civil servants, who were the ones who formulated Canada's policies on deep seabed mining. Both the MAC and CBUAC comprised most of the largest companies in Canada. Their economic health was important to tax revenues. While the CBIIAC officials had participated in international trade negotiations and were knowledgeable about technology, the MAC representatives had a good deal of expertise in the technical aspects of mining. This latter group co-operated with the DEMR in conducting some of the complex calculations necessary to assess proposals for production policies at UNCLOS m. Although this expertise was useful to governmental policy makers, it was not sufficient to enable the business groups to alter the direction of Canada's policies. Even though MAC became involved in deep seabed mining negotiations two years before the USWA, actual longevity does not seem to have affected the ability to exert influence. Federal civil servants responded to the issues in terms of their own perceptions of the national interest, rather than in response to the lobbying efforts of interest groups. Although the business community used more access points and prepared more briefs than labour, its chances of exerting influence were no greater than those of labour. The need to use these tactics, in reality, resulted from the inability to influence the key policy makers. Labour did not have to seek additional allies in the federal government, since it was already aligned with the dominant coalition. Outside federal circles, the USWA was successful in courting important domestic allies: the governments of Ontario, Manitoba, and the mining companies. In contrast, it was unsuccessful in getting foreign unions to support its cause. The reverse was true for the business groups, which spent little time courting domestic allies. They were, however, able to use international business networks and were influential in encouraging their us counterparts

171 The Policy-Making Process

to take up the issues with the us administration. These actions did not affect the content of Canada's policies but were considered useful by the us allies, as exemplified by their efforts to maintain a co-operative effort. The us position on the deep seabed mining provisions was ultimately more important than that of Canada, because it wielded greater power internationally and would be the major deep seabed mining country. Alan Swabey's efforts, as chairperson of both the CBIIAC'S Industrial Property Committee and LES'S Law of the Sea Committee, were not atypical. Canadian business organizations whose objectives on a specific foreign policy issue differ from those of the Canadian government are increasingly conducting their own lobbying efforts in Washington. For example, when the government of Guyana nationalized the Demerara Bauxite Company and the Canadian government refused to contest Guyana's right to nationalize, Alcan hired a distinguished American to lobby on its behalf in Washington. The us appeared likely to take action in this case, for two reasons. It was concerned about the welfare of American corporations, such as Reynolds, in Guyana and, more importantly, it was concerned that the Guyanese example would be emulated by the Caribbean states, where the us had substantial investments. More recently, in 1984, the Canadian steel industry lobbied intensely to get the us Congress to exempt Canadian steel from the quotas being placed on foreign imports under the Steel Quota Bill.38 Just as was the case with Canada's policies on deep seabed mining, the Canadian government had a broader range of interests to protect than did the business groups. It was unwilling to make the goals of the steel industry its primary objectives. There was, as a result, little co-operation between federal officials and representatives of the Canadian steel industry in Washington. From the federal government's point of view, increased lobbying by Canadian business associations in Washington affects its ability to pursue foreign policy objectives. When business and government share common goals, the pooling of resources enhances Canada's potential to exert influence within the us decision-making process. But, when the goals of business and government diverge and competing objectives are actively pursued, the credibility and effectiveness of the Canadian government's efforts in Washington are likely to be diminished. In the case of deep seabed mining, the ability of business and labour to exert the kind of pressure that would result in policy output was minimal. Denis Stairs has outlined four possible roles for interest groups in the policymaking process: "agenda-setting" (determining the issues on the political agenda), "parameter-setting" (limiting the range of policy options), "policysetting" (determining actual policy choices), and "administrative-setting" (influencing the implementation of policy).39 In our case study, neither business nor labour set the agenda; nor did they establish the substance of

172 Canada and the International Seabed

Canada's policies on deep seabed mining. Moreover, while labour agreed with the government's priorities and with the content of the policies, business unsuccessfully sought changes. The groups in our case study made a contribution in the parameter and administrative-setting areas. In terms of parameter setting, once the USWA was convinced of the merit of the production ceiling, its governmental allies would have found it very difficult to change priorities. Even when the production floor was added to the negotiating text, the senior members of the Canadian delegation could not afford to abandon the concept for they had worked to convince their allies in the USWA of its utility. If one interprets "administrative setting" liberally - that is as meaning the promotion of Canada's policies at home and abroad - the USWA can be said to have made a contribution. As a strong advocate of the production ceiling at home and internationally, its support helped to legitimize the policy. When these four factors are considered, it is clear that labour played a very minor role in determining the content of Canada's policies on deep seabed mining and that business played no role at all. Canada's policies on deep seabed mining were not the result of interest group lobbying or class preference. Instead they were, as the statist approach suggests, the result of interdepartmental politics. Structural Marxists pose a more serious challenge to the proponents of the statist approach, inasmuch as both consider the state to be fairly autonomous from society. According to the former, the main objective of government decision makers is to preserve and perpetuate the capitalist state. In order to realize this goal, the state at times may act against the economic interests of a particular bourgeois group. According to the structural Marxists, state autonomy is necessary to ensure the long-term future of the capitalist state, not only because of the threat posed by interclass conflicts but also because of the need to reconcile conflicts among various sections of the bourgeoisie.40 A structural Marxist perspective can be seen in Cranford Pratt's study of Canada's policies towards the Third World. Such policies, he contends, reflect a bias in favour of business. He attributes this bias largely to a predisposition on the part of government decision makers to serve the interests of the economic elite.41 In order to argue successfully that structural Marxists do not offer a better explanation of state-societal relations than the proponents of statism, one must prove that the main motivation for government decision makers is not an overriding desire to preserve the long-term stability of the capitalist system. In the case of Canada's policies on deep seabed mining, one would be hard pressed to argue that the decision to give priority to the production ceiling instead of to technology transfers was necessary for the preser-

173 The Policy-Making Process

vation of the stability of the capitalist state. Although any abandonment of the production ceiling would have outraged the USWA, the issue was not important enough to the labour movement in Canada to cause a massive outcry, let alone a revolution. Business groups, moreover, were united, not divided, in their positions. Although the mining companies, for example, never advocated quantitative restrictions, they did share the concerns of the CBIIAC and MAC regarding the transfer of technology. The choice of Canada's policies on deep seabed mining then did not reflect the short-term goals of business nor did it ensure the long-term stability of the capitalist state. Instead, it reflected the perceptions of the national interest held by the senior DEA lawyers and DEMR officers. These perceptions did not waver over time. Nor did they result from pressure, either direct or indirect, from societal groups. As a result, the statist approach is the most useful and relevant for any explanation of Canada's policies on deep seabed mining at UNCLOS m. It accurately identifies the state, in this case the DEA lawyers, as the key determinants of policy outcomes. It describes the primary characteristic of the relationship between the state and societal forces, in its prediction that the dominant government actors would be able to translate their preferences into Canada's deep seabed mining policies in spite of opposition from two major business organizations. The major reason that the specific interests of labour rather than business were reflected in Canada's policies on deep seabed mining was that labour's allies were the most influential actors in the policy-making process. This conclusion accords with that of Tom Keating in his study of nongovernmental actors and Canada's bilateral fisheries, in which he contends that the activities of the nongovernmental groups were managed by the Canadian government.42 Before ending this section on state-societal relations, a few comments should be made as to where, in government, interest groups can seek access. The nature of their relationships with government officials should also be discussed. On these issues, our findings accord closely with other writings in the field. Cabinet ministers and civil servants are generally considered to be the key targets of interest group lobbying.43 All the groups that were actively involved in the deep seabed mining issues sent letters to key cabinet ministers, particularly the secretary of state for external affairs. The USWA and MAC also wrote to the minister of energy, mines and resources. When Judy Erola became the first secretary of state for mines in 1980, she became an important contact, particularly for the USWA. Despite the fact that cabinet ministers were considered to be important targets, we found that, in our case, greater attention was given to contacts with civil servants. All the interest groups sought to influence the DEA lawyers, who were seen as the dominant governmental actors in the formula-

174 Canada and the International Seabed tion of Canada's policies on deep seabed mining. This finding substantiates Seymour Wilson's contention that interest groups seek access at points where they perceive the power to lie.44 Furthermore, although relationships between the civil servants and the representatives of the interest groups were based on reciprocal interests, it was the former group that tended to dominate. This was most noticeable in relations between the DBA lawyers and the group representatives. In the case of the CBIIAC and MAC representatives, on the one hand, and the DOF, DITC, and MOSST officers, on the other, the power discrepancies were less pronounced. In fact, the civil servants in these departments had relatively weak bargaining positions within ICLOS and, hence, were in greater need of outside allies than those in the dominant coalition. In his study of interest group behaviour, Paul Pross noted that groups with expertise, credibility, and prestige are most likely to gain access to government decision makers. In this study, three factors seemed to facilitate access: the ability of one group to add legitimacy to the priorities of government actors, the potential voting strength of the organization, and the group's expertise in the area. Having the support of the union representing Canadian nickel miners, for example, enhanced the credibility and legitimacy of pursuing the production ceiling. Also, because the membership of the USWA was geographically concentrated and heavily dependent on nickel mining for its livelihood, Canada's policies on deep seabed mining had the potential to influence voting behaviour. Inco's access to the DEA lawyers was facilitated by two factors: its status as the world's largest producer and marketer of nickel; and its expertise on matters pertaining to the nickel industry. The relatively minor involvement of Noranda, Falconbridge, and Sherritt Gordon was largely due to a lack of interest on their part. On the other hand, neither the DEA lawyers, nor any other federal officers, actively enlisted their ongoing participation in the policy-making process. Interest groups did not determine Canada's deep seabed mining policies. But this is not to say that the USWA, MAC, and CBIIAC did not make significant contributions to the policy-making process. On the contrary, they performed a variety of useful functions. They facilitated a two-way communications network between the Canadian government and their respective constituencies. They brought expertise to the deliberations. They also served as valuable allies in the interdepartmental negotiations. Provincial Governments and Foreign Policy Canada is unique in the extent to which its federal government consults the provincial counterparts when making foreign policy.46 Such was not always the case. Prior to 1960, provincial governments played almost no direct role

175 The Policy-Making Process

in the foreign policy-making process. It was really Quebec's claim to be the legitimate representative of French Canada abroad that prompted Ottawa to include the provinces in the formulation of foreign policy. Beginning with the advent of the Quiet Revolution in 1960, successive Quebec governments, spurred on by nationalist aspirations, expanded relations between their province and France and other francophone countries. To the federal government, such moves struck at the very heart of Canadian unity. As Pierre Trudeau stated in 1968, the political survival of Canada was the most important goal of foreign policy.47 Ottawa's concern about Quebec's autonomy was heightened by such events as the Gabon incident in 1968. The federal government responded to Quebec's expanding activities in the international arena by further developing its relations with francophone countries, and by devoting greater attention to the promotion of provincial interests abroad. Nationalistic concerns were by no means the only impetus for provincial involvement in external affairs. Many areas within provincial jurisdiction, including agriculture, energy, natural resources, fisheries and trade, are affected by developments abroad. Provincial politicians and civil servants frequently travel outside Canada on official business, as they did in our case. By the early 19805, provincial governments had established over fifty offices outside Canada and most had either set up international relations units or designated specific individuals to represent their interests with foreign governments and nongovernmental organizations.48 Increased provincial involvement in external relations has made the process of formulating and conducting foreign policy more complex. For example, although Canada was active in drafting the UN Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights, it took some time and effort before Canada could ratify them: three years of correspondence between the Canadian prime minister and the premier of Quebec, the creation of a special intergovernmental task force on human rights, the holding of a federal provincial conference, and six months of discussion over the details of implementation. In the process, in 1968, Mitchell Sharp, secretary of state for external affairs, announced that Canadian delegations to international conferences dealing with issues involving provincial jurisdiction would in future include provincial representation.49 The Canadian government further pledged to continue federal-provincial consultations over the application of human rights provisions. The precedents held in our case, even though its substance fell within federal jurisdiction. On the deep seabed mining issues, the close co-operation between federal and provincial officials served several important functions. Since the formal Canadian position accorded with the wishes of Ontario and Manitoba, relations between their governments and Ottawa were, if not enhanced, then at least not undermined by the deep seabed mining debates. Support by

176 Canada and the International Seabed

Canada's two, major nickel-mining provinces added significantly to the legitimacy of the position of the strongest coalition in ICLOS. If Ontario and Manitoba had objected vehemently, it would have been much harder, if not impossible, to have convincingly argued, whether in Ottawa or at UNCLOS m, that the production ceiling was essential to safeguarding Canada's landbased nickel industry. Such objections would have made the federal proponents of the formula look paternalistic at best, if not somewhat foolish. To be sure, Ontario and Manitoba would have had less credibility in arguing their cases if the USWA, as well as the business groups, had opposed them. In his study of the Canadian-European Community Long Term Agreement on Fisheries, Donald Barry found interest group support to be critical to provincial influence over foreign policies. "The Newfoundland government's power to influence the agreement depended on its ability to mobilize the support of provincial fishing interests. But its capacity to do so was sharply constrained because the industry's reasons for opposing the LTA [Long Term Agreement] were different from its own. The likelihood that the successful operation of the agreement would meet the industry's concerns allowed Ottawa to proceed with the pact."50 On deep seabed mining, by contrast, it was the USWA which sought provincial involvement. More importantly, the positions of the provinces and the USWA were mutually reinforcing. This is not to suggest that the provinces and interest groups in our case were equally significant, let alone that the latter were more important. Quite to the-eentrary. The provinces hold a politically more privileged position than the interest groups in the policy-making process. The federal government cannot use treaty making as a way of expanding its legislative jurisdiction into the areas of provincial jurisdiction, as designated under the Canadian constitution. As noted in chapter 4, the White Paper on Federalism and International Relations specified that the federal government should consider the views of the provincial governments when their specific interests and areas of jurisdiction are affected by federal policies. In this study the provincial governments, unlike the interest groups, were contacted by the federal government prior to the first substantive session of UNCLOS m; all were invited to nominate representatives to the Canadian delegation. Civil servants in Ottawa were instructed to share many of the telexes on the deep seabed mining negotiations with their provincial counterparts. Such status was not conferred on the concerned interest groups. For example, they did not enjoy regular, if any, access to classified documents. The support of Ontario and Manitoba was important for political reasons, but it did not stop there. Senior representatives from the Ontario Ministry of Natural Resources worked closely with the DEMR officers, analysing the various production ceilings introduced at UNCLOS m and

177 The Policy-Making Process

developing counter proposals. Because the representatives' technical expertise was highly valued, they were asked to participate in technical level meetings between the DEMR officers and their counterparts in Washington. The Ontario Ministry of Natural Resources produced several publications that were used by civil servants in Ottawa and at UNCLOS in to mobilize support for the production ceiling. The degree of federal-provincial co-operation in our case appears somewhat unusual, when compared to Canada's experience at the World Population Conference in Bucharest, not to mention the Ottawa-Quebec quarrels over meetings of lafrancophonie. Furthermore, as Peyton Lyon points out, provincial representatives are not regularly included on Canadian delegations to the most important conferences, such as the multilateral trade negotiations.51 One wonders, therefore, how typical the UNCLOS m experience was. Will provinces now send delegates to international conferences as a matter of course? Or will they only be invited when their views accord with those of the dominant actors in Ottawa? Answers to these questions await further studies. Kim Nossal outlines four critical reasons that can propel provincial governments into the international arena.52 First, provincial governments seek to expand their jurisdictions relative to that of the federal government, within the limits laid down in the Canadian constitution. The second impetus for provincial involvement in international relations is the governments' need to fulfill their constitutional responsibility to promote the economic and social wellbeing of their people. Third, Canadian provinces must co-operate with neighbouring American states, so as to ensure that critical services, such as law enforcement and firefighting, are carried out as efficiently as possible. Finally, as the number of provincial civil servants with expertise in international relations and who have been assigned to promote provincial objectives abroad rises, so does the momentum for a greater provincial presence outside Canadian borders. The importance of these factors raises expectations of increased provincial involvement in foreign policy. If there is a trend in this direction, it could precipitate a less rigid division of labour between the two levels of government in the foreign policy arena. But it will also make the process of fashioning foreign policy more complicated, as a federal government attempts to retain control, while simultaneously accommodating provincial points of view. In summary, negotiations in international fora will become more unwieldy as provincial representatives swell the ranks of Canadian delegations and render the process of reaching and presenting a common front more difficult. UNCWS m: Costs and Benefits International conferences have become an increasingly popular means of seeking solutions to global problems. During the period of UNCLOS m, the

178 Canada and the International Seabed UN held conferences on a wide variety of topics, including the environment, food, population, desertification, technology transfers, women, seniors, racial discrimination, the conduct of transnational enterprises, and healthrelated issues. These conferences highlighted the interdependence of today's world and the need to find global solutions for its problems. In most cases the results have fallen far short of original expectations, especially those of the less developed countries whose new international economic order has not been achieved. Thus the "conference technique"53 was not unique to UNCLOS m, nor was the nonfulfillment of all the original, and in this case very ambitious, objectives. The question remains: was all the time and energy that Canada devoted to the nine years of hard negotiations at UNCLOS m worth the effort? How useful were the deep seabed mining negotiations? From the Seabed Committee meetings in the late 19605, Canada had always viewed the law of the sea issues as part of a comprehensive package. In retrospect, some have argued, deep seabed mining should never have been made part of the overall package, since it was the most controversial aspect and, in the end, proved to be irreconcilable. But this argument ignores the fact that the main impetus for the Conference came from Pardo's common heritage of mankind principle. The Group of 77 would never have agreed to hold a conference that excluded the deep seabed from its agenda. And, in the 19708, no conference could credibly claim to be developing a body of law to govern the world's oceans when the majority of countries were not participating. Beyond this general concern for justice lay specific reasons for wanting the less developed countries to participate in the process. In no sense, was enshrining the common heritage of mankind principle in legal provisions a priority for the us or the USSR. For them, freedom of navigation was the critical issue. The major threats to the unimpeded movement of American and Soviet naval and merchant ships, however, came from the unilateral extensions of coastal state jurisdiction declared primarily by the Latin American countries. And the trend was spreading. So, since most coastal states were also less developed countries, it was clear that they had to be part of the decision-making process. While the mandate for UNCLOS m was ambitious, it would not have been acceptable if it had not been inclusive. After all, when the Conference began, all states hoped to negotiate a universally acceptable treaty on the law of the sea. When one contemplates the magnitude of the task assigned to UNCLOS m, its accomplishments are remarkable. The vast majority of the world states agreed on a comprehensive treaty to regulate 70 percent of the earth's surface. And agreement was, for the most part, based on reaching a consensus rather than on arriving at a majority ruling through voting. Beesley estimates that "well over 97 to 98 percent of the articles of both the text and the annexes were negotiated by consensus."54 The achievement is particularly impressive when one remembers that the convention contains 320 articles

179 The Policy-Making Process

and nine dense annexes. Furthermore, during the first half of the Conference, both the us and the Group of 77 made very considerable concessions to facilitate arriving at compromises acceptable to each. It is to be hoped that these examples of compromise will not be forgotten in the shattered dreams following the final stalemate, but rather they they will serve as role models for future negotiations. In spite of not achieving a universally acceptable convention, Canada's participation at the Conference was well justified. The overall treaty, especially the provisions to extend coastal state jurisdiction, enhanced Canadian interest. If Canada had been forced to negotiate bilaterally with the us and other major maritime powers, it would not have got the rights embodied in the convention. Clearly, the work of Committee One was less of a success story. The North-South dichotomy widened in 1982, when the us rejected the Law of the Sea Convention. The dichotomy continues. On the one hand, the vast majority of the world's countries are actively participating in the work of the Preparatory Commission to work out rules, regulations, and procedures for the ISA. On the other hand, the us not only refuses to participate in the Preparatory Commission, but also continues to try to establish a competing regime with other "like-minded" states. The latter are hedging their bets and have one foot in each camp. The UK, FRG, France, Japan, and Italy would still prefer an international solution. The last three - France, Japan, and Italy - have already signed the Law of the Sea Convention and are full participants in the Preparatory Commission. The UK and FRG, on the other hand, refused to sign and have only observer status at the Preparatory Commission. The merit of an international solution lies in the fact that activities conducted with the approval of the ISA will not face the risk of retaliation by advocates of the common heritage of mankind. The ISA, moreover, offers the best prospects for reconciling conflicting claims for mine sites, since it would be regulating all miners and not just a select few, as would a minitreaty. Most "like-minded" states now have their own deep seabed mining legislation,55 passed largely as a bargaining ploy for negotiations with the Group of 77. The us has been unsuccessful in getting its allies to agree to a "reciprocating states agreement," or a "minitreaty" as it has been disparagingly called by other countries. Such an agreement would facilitate the deep seabed mining operations of corporations from the like-minded states in two ways. First, each country would agree to recognize and respect the claims granted by other parties to the agreement, hence avoiding overlapping claims. Second, procedures would be established to resolve any overlapping claims that did arise. The agreements made to date by the like-minded states fall short of the objectives of the reciprocating states agreement. On 2 September 1982, the us, UK, France, and FRG signed an Agreement Concerning Interim Ar-

180 Canada and the International Seabed

rangements Relating to Polymetallic Nodules of the Deep Seabed.56 That agreement provides procedures for binding arbitration when conflicts arise between parties whose corporations have applied for the title to explore or exploit overlapping areas. It does not include provisions for the recognition of licenses on a reciprocal basis. Two years later, Belgium, France, FRG, Italy, Japan, the Netherlands, the UK, and the us moved closer to the American goal of a reciprocating states agreement when, on 3 August 1984, they signed the Provisional Understanding Regarding Deep Sea-Bed Matters.57 The understanding addressed the problem of overlapping claims. Each party agreed that once a country has been granted a licence to explore or mine a particular site, or has registered such a claim with the Preparatory Commission, no other state shall be granted or shall seek title to that site. Again it fell short of reciprocal recognition of licences. Instead, parties agreed to respect claims already granted. The like-minded states contend that both the agreement and the understanding are compatible with their obligations under the Law of the Sea Convention. The Group of 77, the USSR, and China accuse the like-minded states of contravening the convention by setting up a minitreaty. And so the stand-off continues. By August 1986, twenty-nine states had ratified the Law of the Sea Convention, thirty-one short of the sixty ratifications required to bring the Convention into force. But neither Canada nor the like-minded states consider the provisions for the ISA acceptable in their present form. With President Reagan's departure from office in January 1989, the problems his administration perceived in the convention will not disappear. For the us and its like-minded allies, decisions on ratification will depend largely on whether the Preparatory Commission modifies the deep seabed mining provisions sufficiently to meet their major concerns. Canada, likewise, has adopted a "wait-and-see" attitude. It is important to remember, however, that the deep seabed mining provisions are not the only considerations for ratification. For Canada, as for most countries, the issues of coastal state jurisdiction were the most critical. The allocation of personnel at the Conference testifies to this fact. Until a consensus had been reached on the rights of coastal states with respect to resources and navigation, heads of delegations rarely, if ever, attended the Committee One meetings.58 As is clear from state practice, important concepts, such as the twelve-mile territorial sea and the exclusive economic zone, have already passed into customary international law. Canada can benefit from these norms as a result, whether or not the treaty comes into force and regardless of its decision to ratify. This is not true, however, for all Canada's priorities. The "Arctic exception" which Canada fought so hard to have enshrined in the Convention shows no sign of being recognized as

181 The Policy-Making Process

a customary norm. Its legal status remains closely linked to that of the Convention. Likewise, the procedures for dispute settlement will only be available to parties to the Convention, unless special permission is obtained. Deep seabed mining has a much lower profile today than it did during UNCLOS m. In contrast to the two cabinet ministers and twenty-nine civil servants sent on the Canadian delegation to the sixth session of UNCLOS in in 1977, Canada today only sends four civil servants to the Preparatory Commission meetings. Two DEA lawyers attend each session, neither of which has the rank that either Beesley or Legault had during their involvement. The DOF and DEMR each send one representative to the portion of the sessions devoted to technical issues. Was UNCLOS m worth all the effort? The answer is a qualified "yes." The international community showed great foresight in trying to formulate a new body of international law to govern the world's oceans, in some cases before the problems had developed and, in others, before the damage was irreversible. For example, UNCLOS m stemmed the tide of unilateral claims by coastal states for ever wider territorial seas, thereby promoting the orderly use of the oceans. Also the provisions for assisting land-locked and geographically-disadvantaged countries reflected a concern for justice. UNCLOS in not only managed to work out provisions on a broad range of issues but it did so, for the most part, by consensus. It was the mandate of UNCLOS in that proved too ambitious. Countries from both North and South were disillusioned by the outcome of the Committee One deliberations. Yet there may come a day when the debates have to be re-opened. Future negotiations must try to avoid the pitfalls of UNCLOS m. The expectations of the less developed countries may have to be more modest; their bargaining power is weak and there are clearly limits on the generosity of the industrialized countries. Of course, a future conference might adopt a very different approach to the negotiations and to the type of regime it sought to establish. Nevertheless, some attention would no doubt be given to past experience. From Canada's point of view, the current provisions on deep seabed mining enshrine two very important principles: the right of major land-based producers to be represented on the Council of the ISA, and the need to safeguard the world markets of land-based producers from subsidized production from the deep seabed. When negotiations are resumed, it will be up to a new generation of policy makers to decide whether to build on the base already established or to change Canada's priorities. It is to be hoped that they will be able to strike a balance between the demands of private enterprise and the desire to secure a treaty that safeguards the common heritage of mankind.

This page intentionally left blank

Glossary

Activities the exploration for and exploitation of deep seabed resources Area the seabed and ocean floor beyond national jurisdiction CBIIAC Canadian Business and Industry International Advisory Committee Conference shorthand term used to refer to UNCLOS in Council the executive organ of the International Seabed Authority DBA Department of External Affairs Deep seabed the ocean floor beyond national jurisdiction DEMR Department of Energy, Mines and Resources DITC Department of Industry, Trade and Commerce DOF Department of Finance Enterprise the operational arm of the International Seabed Authority, whose purpose is to engage in deep seabed mining operations GATT General Agreement on Tariffs and Trade Group of 77 a group of over 100 less developed countries seeking the establishment of a new international economic order that would distribute the world's wealth more equitably between North and South ICLOS Interdepartmental Committee on the Law of the Sea ISA International Seabed Authority MAC Mining Association of Canada MOSST Ministry of State for Science and Technology North the industrialized countries of North American and Western Europe as well as Japan, Australia,

184

OECD Production ceiling

Production floor

South UNCLOS UNCTAD USWA

Glossary

and New Zealand. The name refers to the geographic location of most "Northern" states in the northern hemisphere Organization for Economic Cooperation and Development an upper limit on the amount of annual growth in world demand for nickel that could be supplied by deep seabed miners a guaranteed minimal percentage of the annual growth in world demand for nickel that is reserved for deep seabed miners the less developed countries, most of which are located in the southern hemisphere United Nations Conference on the Law of the Sea United Nations Conference on Trade and Development United Steelworkers of America

Notes

CHAPTER ONE

1 Canada, House of Commons, 29th Parliament, ist session, Minutes of Proceedings and Evidence of the Standing Committee on External Affairs and National Defence (6 November 1973), 22:21. Hereafter SCEAND, Minutes. 2 At UNCLOS m it was agreed that the International Seabed Authority would refer to "the organization through which States Parties shall ... organize and control activities in the Area, particularly with a view to administering the resources of the Area." United Nations, Law of the Sea: United Nations Convention on the Law of the Sea, 1983, Article 157(1): 52. 3 United Nations, General Assembly, 22nd sess., "Declaration and treaty concerning the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor underlying the seas beyond the limits of present national jurisdiction, and the use of their resources in the interest of mankind," (A/6695), J8 August 1967. 4 Carter, "Remarks to the Annual District 4 Meeting," 7. 5 Hardy, "The Implications of Alternative Solution," 315. 6 Ibid. 7 Buzan, Seabed Politics, 278. 8 In fact Pasho (DEMR), a key participant throughout most of UNCLOS m, now describes the Conference as a good example of how not to conduct international negotiations to solve global problems. Interview in Ottawa, 1987. 9 United Nations, Third Conference on the Law of the Sea, Resumed Tenth Session, Draft Convention on the Law of the Sea, (A/Conf. 62/1.78), 28 August 1981: 2. 10 Ibid. 11 United Nations, Third Conference on the Law of the Sea, Second Session, "Text on conditions of exploration and exploitation prepared by the Group of 77" (A/Conf. 65/0. i/L.7) in Third United Nations Conference on the Law of the Sea: Official Record 3: 172-3.

186 Notes to pages 10-21 12 United Nations, Third Conference on the Law of the Sea, Second Session, "United States of America: draft appendix to the law of the sea treaty concerning mineral resource development in the international sea-bed area," (A/Conf.62/c. i/L.6) in Third United Nations Conference on the Law of the Sea: Official Records 3: 169-72. 13 Hage, "The United Nations Conference on the Law of the Sea," 16. 14 The key civil servants in both coalitions are identified in chapter 4 where their respective positions and participation are discussed. 15 Noteable examples of Canadian applications of the governmental politics approach include Nossal, "Allison Through the (Ottawa) Looking Glass," 610-26 and "Bureaucratic Politics and the Westminster Model," 120-7; and Atkinson and Nossal, "Bureaucratic Politics and the New Fighter Aircraft Decision," 531-62. 16 Nossal, "Analyzing the domestic sources of Canadian foreign policy," 1-22. 17 Pratt, "Dominant class theory and Canadian foreign policy," 99-135. 18 The examination focused on the following Department of External Affairs' files: 25-5-4 (Interdepartmental Committee on the Law of the Sea), July 1967 to January 1982; 25-5-4-4 (Seminars [panels and symposiums]), August 1976 to February 1978; 25-5-4-5 (International Seabed Authority [Common Heritage of Mankind]), March 1971 to 30 June 1982; and 25-5-4-13 (Transfer of Technology), August 1975 to October 1982. Crosby, former director-general of the Resource Management and Conservation Branch (DEMR), has since declassified many of these documents and given them to the Public Archives in Ottawa. CHAPTER

TWO

1 Wolfers discusses national goals under the categories of milieu goals, general possession goals, and specific possession goals in Discord and Collaboration, chap. 5, 67-80. 2 A distinction is usually made between the terms "national interests" and "national goals," on the grounds that the former are aspirations held by individual citizens or groups of citizens, while the latter are policy directives. National goals aim at protecting and promoting those national interests that are accorded a sufficiently high priority by policy makers. Because of the close interrelationship that exists between national interests and national goals, Wolfers' classification can be used to study both these terms. 3 Wolfers, Discord and Collaboration, 73. 4 Ibid. 5 Ibid. 6 Ibid. 7 These two categories are based on Wolfers' discussion of direct and indirect national goals in Discord and Collaboration, 77.

187 Notes to pages 21 -3 8 8 Dewitt and Kirton, Canada as a Principal Power, 26. 9 Hage, "The United Nations Third Conference on the Law of the Sea," 17. 10 For a more comprehensive treatment of this subject, see Beesley, "The Law of the Sea Conference: Factors Behind Canada's Stand," in Canada and the Law of the Sea, 39-46. 11 Buzan, "Canada and the Law of the Sea," 152. 12 Ibid. 13 Hage, The United Nations Conference on the Law of the Sea, 16. 14 Panayotou, The Copper Cartel and Canada, 3. 15 Buzan, "Canada and the Law of the Sea," 153. 16 Interview with Pasho, 1983. 17 Interview with Jackson, 1982. 18 Cundiff, Nodule Shock, 2. CHAPTER THREE

1 de Mestral and Legault, "Multilateral Negotiations - Canada and the Law of the Sea Conference," 61. 2 United Nations, General Assembly, 22 Session, "Declaration and treaty concerning the reservation exclusively for peaceful purposes of the sea-bed and of the ocean floor underlying the seas beyond the limits of present national jurisdiction, and the use of their resources in the interest of mankind," (A/6695), *8 August 1967. 3 United Nations, General Assembly (A/Res. 275oC [xxv]), 17 December 1970. 4 Buzan and Middlemiss, "Canadian Foreign Policy and the Exploitation of the Seabed," 30. 5 Buzan, Seabed Politics, 278. 6 Canada, Department of External Affairs, "Notes for an Address by the Honourable Mitchell Sharp, Secretary of State for External Affairs, to the International Law Association, Toronto, 5 November 1969: Law and Arms Control on the Seabed," Press Release no. 49, New York, i December 1970. 7 United Nations, General Assembly (A/Res. 2749 [xxv]), 17 December 1970. 8 Canada, Delegation to the United Nations. "Statement made by R.P. Kaplan in First Committee on the Agenda Item no. 25: Seabed," Press Release no. 49, New York, i December 1970. 9 United Nations, General Assembly (A/Res. 2750 C [xxv]), 17 December 1970. 10 de Mestral and Legault, "Multilateral Negotiations - Canada and the Law of the Sea Conference," 50. 11 Ibid., 49. 12 Canada, SCEAND, Minutes #22 (6 November 1973), 22:30. 13 "Law of the Sea and International Fisheries Regulation," 8$. 14 The document number for the paper presented by the EEC (without Ireland)

188 Notes to pages 41 -9

15

16 17 18 19

20 21 22 23

24 25 26

27 28

29

was A/Conf.62/c.i/L.8. The Group of 77'$ papers were classified as A/Conf.62/c.i/L.7 and c.i/CRp.7. The document numbers for the papers presented by Japan and the us were A/Conf.62/c. i/i.g and A/Conf.62/c.i/L.6, respectively. United States, Department of State, "The Law of the Sea: A Test of International Cooperation," address by the Hon. Henry A. Kissinger, Secretary of State, before the Foreign Policy Association, us Council of the International Chamber of Commerce, and UN Association of the USA, New York City, 8 April 1976," Press Release, no. 162, 8 April 1976. United States, Mission to the United Nations. Press Release, (US/UN 99 [76]), September 1976. Interview with Crosby, 1987. Ibid. Ibid. Beginning at the third session in 1975, chairpersons of each of the principal committees were asked to prepare a set of draft articles on the issues under discussion in their committee. Neither negotiated documents nor accepted compromises, these texts served, rather, as a basis for subsequent discussions. Interview with Crosby, 1987. Ibid. Herman, "The Niceties of Nickel," 279. Crosby continued to lead Canada's efforts in Committee One. He now received reinforcements from the Department of Energy, Mines and Resources - David Pasho, William Jackson, and Martin Gauvin; and from the Ontario Ministry of Natural Resources - Tom Mohide. Up to this point, Charles Elliott, president of the Mining Association of Canada, had been Crosby's sole source of technical advice on the Canadian delegation. Although Elliott never approved of the concept of a production ceiling, he had been helpful in advising Crosby as to the accuracy of the latter's figures during the drafting of the Canadian counterproposal. Interview with Crosby, 1987. Interview with Pasho, 1983. Canada, Department of External Affairs, Law of the Sea Conference, Seventh Session, Geneva, March 28 - May 19: Assessment by the Canadian Delegation. Ottawa, 25 May 1978, 2. Interview with Munro, 1982. United States, 96th Congress, Deep Seabed Hard Mineral Resources Act, Public Law 96-283, 1980, in International Legal Materials 19(4) (July 1980): 1003-20; and Federal Republic of Germany: Act on Interim Regulation of Deep Seabed Mining, 1980 in International Legal Materials 19(4) (July 1980): 1330-9. This point was brought out in the discussion between Richardson and

189 Notes to pages 49-53

30

31

32

33 34 35

36

37 38 39

40

Breaux during the Hearings before the Merchant Marine and Fisheries Subcommittee on Oceanography, 20 July 1982, serial no. 97-19, 209-10. Canada, Department of External Affairs, United Nations Conference on the Law of the Sea: Resumed Ninth Session, Geneva, July 28 to August 29, 1980: Assessment by the Canadian Delegation. Ottawa, 1980, 2. United Nations, Third Law of the Sea Conference, Resumed Ninth Session. Statement in Plenary Debate on USA Unilateral Seabed Legislation by J. Alan Beesley, 28 August 1980. An excerpt from the Department of State announcement appears in Oxman's, "The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)" American Journal of International Law 76(1) (January 1982): 2. Hage, "The United Nations Conference on the Law of the Sea," 20. United Nations Document, A/Conf.62/L.io4Canada, Department of External Affairs, Assessment by the Canadian Delegation of the Eleventh Session of the United Nations Conference on the Law of the Sea Held in New York from March 3 to April 30 1982. Ottawa, 1982, 4. United Nations, Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea, Resolution II: Governing Preparatory Investment in Pioneer Activities Relating to Polymetallic Nodules (New York, 1982), 177-82. Since the us did not sign the Law of the Sea Convention, it was ineligible to sponsor its corporations under the provisions for pioneer investors. Although the deep seabed mining consortia to which Inco and Noranda belonged were based in the us, both had had coordinates registered for seabed mining with Canada. In so doing, they hedged their bets: they could either proceed under the American Deep Seabed Hard Mineral Resources Act or, with Canadian sponsorship, under the Convention on the Law of the Sea. The us government accused the consortia, first, of pressuring it to take unilateral action and, second, of weakening its position by registering with Canada. The consortia responded by withdrawing their Canadian registration. Kimball, "Turning Points in the Future of Deep Seabed Mining," 375. United Nations, Convention on the Law of the Sea (New York, 1982). When the Convention closed for signatures two years later on 9 December 1984, it had received 159 signatures. Canada, Department of External Affairs, "Beyond the Law of the Sea Conference: An Address by the Honourable Mark MacGuigan, Secretary of State for External Affairs, to the Ninth Annual Conference of the Canadian Council on International Law, Ottawa, 24 October 1980." Statements and Speeches (80/24), October 1980, 2. For a more detailed explanation of Canadian functionalism see Holmes,

190 Notes to pages 58-67 "The changing nature of international organizations: the Canadian perspective," Canada: A Middle-Aged Power, especially 60-72; and Miller, "The functional principle in Canada's external relations," 309-28. CHAPTER FOUR

1 The Interdepartmental Committee on the Law of the Sea is discussed in depth, commencing on page 148. 2 Interview Shenstone, 1983. 3 Interview with Legault, legal adviser, Department of External Affairs, Ottawa, 1983. 4 Ibid. 5 Confidential interview with member of ICLOS, Ottawa, 1983. 6 Ibid. 7 Because the author was not given access to cabinet documents, the precise details of these guidelines were not available. The information derived from other classified documents of that period as well as from interviews with key members of the Department of External Affairs indicate that the general guidelines for Canada's policies in Committee One were similar to the interests outlined in chapter 2, 24. 8 Federal elections were held in 1974, 1979, and 1980. The Liberals formed a minority government from 1972-74; the Progressive Conservatives formed a minority government in 1979. 9 Confidential interview with member of ICLOS, Ottawa, 1983. 10 Interviews with Hage and Harlick, 1983. 11 Confidential interview with member of ICLOS, Ottawa, 1983. 12 Canada, House of Commons Debates (Hansard), 19 June 1975, 6920-48. 13 Letters were written in September 1976, following the introduction of the first production ceiling, and in July 1978, after the Canadian and American delegations had concluded the ad referendum agreement. 14 Confidential interview with civil servant formerly in the Department of External Affairs, Ottawa, 1983. 15 Interview with Bacon, 1983. 16 Alan Beesley's precise title was changed several times during the course of the Conference. Initially he was called the deputy head of the Canadian delegation. Subsequently this title was changed to vice-chairman. 17 Interview with Legault, 1983. 18 The tactics used in this case were similar to those described on p. 93. 19 Interview with Harlick, 1984. 20 Because the mandate of the Bureau of United Nations Affairs pertained primarily to ongoing developments within the permanent organs of the UN, it had minimal involvement with UNCLOS m.

191 Notes to pages 67-83 21 Confidential interview with civil servant in the Department of External Affairs, Ottawa, 1983. 22 Ibid. 23 Ibid. 24 Interview with Crosby, 1987. 25 Canada, Department of Energy, Mines and Resources, Canada Oil and Gas Lands Administration, Deep Ocean Mining Study: Final Report, September 198326 Confidential interview with civil servant in the Department of Finance, Ottawa, 1983. 27 Confidential interview with civil servant in the Department of Finance, Ottawa, 1983. 28 Ibid. 29 Ibid. 30 Ibid. 31 Interview with Lin, 1983. 32 Ibid. 33 Confidential interview with civil servant in the Department of Industry, Trade and Commerce, Ottawa, 1983. 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 Interview with Bradley, 1983. 39 Confidential interview with member of ICLOS, Ottawa, 1983. 40 Interview with Bradley, 1983. 41 Confidential interview with member of the Canadian delegation, Ottawa, 198342 Confidential interview with civil servant in the Department of Energy, Mines and Resources, Ottawa, 1983. 43 Ibid. 44 Confidential interview with civil servant in the Department of Finance, Ottawa, 1983. 45 Interview with Bradley, 1983. 46 Confidential interviews with members of the Canadian delegation to UNCLOS m, Ottawa, 1982 & 1983. 47 Confidential interviews with lawyers in the Department of External Affairs, Ottawa, 1983. 48 Confidential interview with civil servant in the Department of Energy, Mines and Resources, Ottawa, 1983. 49 Interview with Jalbert, 1983. 50 Interview with Lin, 1983.

192 Notes to pages 83-94 51 Confidential interview with member of ICLOS. 52 Confidential interview with civil servant in the Department of Industry, Trade and Commerce, Ottawa, 1983. 53 Interview with Pasho, 1983. 54 Confidential interview with member of the Canadian delegation, Ottawa, 198355 Interview with Stewart, 1983. 56 Interview with Guillemette, 1983. 57 Confidential interview with member of ICLOS. 58 Confidential interview with civil servant in the Department of Finance, Ottawa, 1983. 59 Ibid. 60 Interview with Beesley, 1983. 61 Confidential interview with senior civil servant in the Department of External Affairs, Ottawa, 1983. 62 Ibid. 63 Confidential interview with senior civil servant in the Department of External Affairs, Ottawa, 1983. 64 Ibid. 65 The only secretary of state for external affairs with whom Beesley did not enjoy good relations was Don Jamieson. This may help to account for Jamieson's apparent lack of interest in the law of the sea. Confidential interviews with two officers in the Department of External Affairs, Ottawa, 198366 Confidential interview with member of ICLOS, Ottawa, 1983. 67 Ibid. 68 Confidential interview with civil servant in the Department of Industry, Trade and Commerce, Ottawa, 1983. 69 Confidential interview with member of ICLOS, Ottawa, 1983. 70 Ibid. 71 Confidential interviews with members of ICLOS, Ottawa, 1983. 72 This view was expressed by at least one officer from each of the following departments: DOF, DITC, DEMR and MOSST, Ottawa, 1983. 73 Confidential interview with a civil servant in the Department of Finance, Ottawa, 1983. 74 Confidential interviews with civil servants from two of the departments represented on the Canadian delegation, Ottawa, 1983. 75 Confidential interview with a lawyer in the Department of External Affairs, Ottawa, 1983. 76 Ibid. 77 Ibid. 78 Confidential interviews with two members of ICLOS, Ottawa, 1983. 79 Guillemette and Martin, "Law of the sea conference sees face-off between developed and developing nations," 64, Bio & Bi i.

193 Notes to pages 95 -106 80 Confidential interview with member of ICLOS, Ottawa, 1983. CHAPTER

FIVE

1 The evolution of federal pre-eminence in foreign policy-making is discussed by Richard D. Balasko in "Quebec and Provincial International Activity: Continuing Challenges to Canadian Federalism," Mackenzie King to Philosopher King, 107-22. 2 Canada, Department of External Affairs, "Federalism and International Relations," Ottawa, 1968, 44-5. 3 Barry, "Provincial Involvement in Fisheries Policy: the Canada-European Community Long-Term Fisheries Agreement," in The Provinces and Canadian Foreign Policy, Keating and Munton, 109. 4 Drolet, Minerals and the Law of the Sea, i. 5 Ontario, Ministry of Natural Resources, Towards a Nickel Policy for the Province of Ontario, (1977): 140. 6 Ibid. 7 Ibid. 8 Interview with Mohide, 1982. 9 While Ontario's interest in UNCLOS m revolved around the Committee One negotiations, it also had a marginal interest in the provisions dealing with offshore resources. The latter could have had future implications for the province's jurisdiction over resources in Hudson Bay and the St. Lawrence River. Ontario never became involved with the Committee Two negotiations. These issues were not of immediate concern to Ontario and were being handled by the federal government and contiguous provinces. 10 Interview with Jalbert, 1983. 11 Ontario, Ministry of Government Service. Telephone Directory, (November 1979): 139Interview with Mohide, 1982. Ibid. Ibid. Interview with Pasho, 1983. Mining in Canada, 14. Ibid., 15. Confidential interview with a senior lawyer in the Department of External Affairs, Ottawa, 1983. 19 Liebich, "The Provinces and Canada Abroad," in The Provinces and Canadian Foreign Policy, 30.

12 13 14 15 16 17 18

CHAPTER SIX

i For a sampling of writings which argue that the Canadian policy-making process is predisposed to favour the interests of business, see Press,

194 Notes to pages 106-18

2 3 4 5 6 7 8 9 10

11 12 13 14 15

16

17 18 19 20 21 22

23 24

"Pressure Groups: Adaptive Instruments of Political Communications," in Pressure Group Behaviour in Canadian Politics, 1-26; Presthus, Elite Accommodation in Canadian Politics; Stanbury, "Lobbying and Interest Group Representation in the Legislative Process," in The Legislative Process in Canada, edited by Neilson and MacPherson, 167-207; and Mahon, "Canadian public policy: the unequal structure of representation," in The Canadian State, Panitch, 165-98. Laxer, Canada's Unions, 308. This view was expressed by civil servants from the DBA, DEMR and DOF. Interview with Munro, 1982. Ibid. Ibid. Ibid. Confidential interview with member of the Canadian delegation, Toronto, 1982. Ibid. The involvement of CBIIAC in the deep seabed mining issues was spearheaded by its Industrial Property Committee, which was, in fact, a joint committee of both CBIIAC and one of its member associations, the Canadian Council of the International Chamber of Commerce (ccicc). The interests and positions hereafter attributed to CBIIAC also had the active backing of the ccicc. The company's name was changed in April 1976, from the International Nickel Company of Canada Limited to Inco Limited. Blue Book of Canadian Business, 1981, 465. Interview with Ivany, 1982. Blue Book of Canadian Business, 1981, 1020. Ontario, Ministry of Natural Resources. Towards a Nickel Policy for the Province of Ontario, Mineral Policy Background Paper 4, (December 1977): i. Carter, "Remarks of the Chairman and Chief Executive Officer of Inco Limited to Special Meeting of the Sudbury Regional Council, 18 September 1979," 11. Ibid. Interview with O'Brien, 1982. Ibid. Ibid. Interviews with Ivany and O'Brien, 1982. Canada, Parliament, House of Commons, Standing Committee on External Affairs and National Defence, Proceedings (25 February 1974), 16: 34-8. Interview with Ivany, 1982. Ibid.

195 Notes to pages 119-38 25 Ibid. 26 Ibid. 27 "Kennecott Draft Application for Exploration Licence under Public Law 96-283, The Deep Seabed Hard Mineral Resources Act." 28 Ibid. 29 Canada, Department of Energy, Mines and Resources, Nickel. Mineral Policies Series (MR 157), Ottawa, 1976, 2. 30 Interview with Bonus, 1983. 31 Riddell-Dixon, The Domestic Mosaic. 32 Interview with Bonus, 1983.

33 Ibid. 34 Ibid. 35 Ibid. 36 Interview with Swabey, 1982. 37 Ibid. 38 United Nations, Third Conference on the Law of the Sea, resumed tenth session, 3-28 August 1981, Draft Convention on the Law of the Sea (A/Conf.62/L.78), Annex 3, Art. 5(3) (b), 132. 39 Interview with Keyes, 1983. 40 Interview with Bonus, 1983. 41 Ibid. 42 Swabey, "Law of the Sea Negotiators Need Support." LES News (July 1981): 3. 43 Interview with Swabey, 1982. 44 Interview with Bonus, 1983. CHAPTER SEVEN

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Interview with Legault, 1983. Interview with Jalbert, 1983. Interview with Swabey, 1982. Interview with Herman, 1983. Interview with Phillips, 1982. Interview with Jackson, 1982. Interview with Keyes, 1983. Hage, "The United Nations Conference on the Law of the Sea." Interview with Pasho, 1983. Ibid. Interview with Mwanang'onze, 1981. Interview with Pasho, 1983. Interview with Mwanang'onze, 1981. Interviews with Jalbert and Bacon, 1983. Interview with Beesley, 1983. Ibid.

196 Notes to pages 138-64 17 18 19 20 21 22 23 24 25

Interview with de Soto, 1981. Radetzki, "The Last Great Colonization on Earth," 6. Interview with Pasho, 1984. Interviews with Mwanang'onze and de Soto, 1981. Interview with Mwanang'onze, 1981. Interview with de Soto, 1981. Interview with Legault, 1983. Interview with Beesley, 1983. Confidential interview with members of the Canadian delegation, Ottawa, 1983. 26 Confidential interview with two members of icios, Ottawa, 1983. 27 Confidential interview with a member of the Canadian delegation, Ottawa, 1983CHAPTER EIGHT

1 Confidential interview with two members of ICLOS, Ottawa, 1983. 2 This view was expressed by Bonus, Mohide, and Munro. 3 Canada, Department of External Affairs, Foreign Policy for Canadians (Ottawa, 1970): 9. 4 For more information, see Bergsten, "Commodity Shortages and the Ocean" in Perspectives on Ocean Policy, 167-78. 5 Interview with Jackson, 1982. 6 A deep seabed mining bill was first proposed in the us Senate in 1971. 7 Interview with Mwanang'onze, 1981. 8 Nossal, The Politics of Canadian Foreign Policy, xv. 9 Jensen, Explaining Foreign Policy, 254. 10 Dewitt and Kirton, Canada as a Principal Power, 38. 11 See Kenneth McNaught, "From Colony to Satellite" in An Independent Foreign Policy for Canada! Clarkson, 179, and Warnock, Partner to Behemoth. 12 Clement, "Continental Political Economy," 77-88. 13 For details of Laxer's argument see Canada's Economic Strategy and The Liberal Idea of Canada. 14 See Lyon and Tomlin, 56-8, and Nossal, The Politics of Canadian Foreign Policy, 13. 15 Holmes, Canada, 36. 16 Von Reikhoff points out several examples of the reactive nature of Canadian foreign policy under the Trudeau government, including the Arctic waters pollution legislation of 1970, and the "Third Option", in "The Impact of Prime Minister Trudeau on Foreign Policy," 267-86. 17 See Nossal, "Allison Through the (Ottawa) Looking Glass," 610-26; and "Bureaucratic Politics and the Westminster Model," 120-7; andd Atkinson

197 Notes to pages 165-71

18

19 20 21 22 23 24 25 26 27

28 29 30 31

32

33 34 35 36 37 38

39

and Nossal, "Bureaucratic Politics and the New Fighter Aircraft Decisions," 531-62. Some of the arguments presented here appeared in Riddell-Dixon's article "Deep Seabed Mining," 72-94. This finding coincides with Nossal's argument that when the functional responsibilities of departments overlap, civil servants will compete for "resources, status and influence" in order to enhance their bargaining positions. Nossal, "Allison Through the (Ottawa) Looking Glass," 619. Atkinson and Nossal, "Bureaucratic Politics and the New Fighter Aircraft Decisions," 531-62. Nossal, "Allison Through the (Ottawa) Looking Glass," 619-20. Interview with Crosby, 1987. Nossal, "Allison Through the (Ottawa) Looking Glass," 623. Ibid. Confidential interviews with two members of ICLOS, Ottawa, 1983. Nossal, "Bureaucratic Politics and the Westminster Model," 124. Campbell and Szablowski, The Super-Bureaucrats, 234. Nossal, "Allison Through the (Ottawa) Looking Glass," 621. Schultz, "Prime Ministerial Government, Central Agencies, Operating Departments," 234; and Campbell and Szablowski, The Super-Bureaucrats, 13Nossal, "Allison Through the (Ottawa) Looking Glass," footnote 48, 621; and Dewitt and Kirton, Canada as a Principal Power, 77, 198, 220-32. Nossal, "Allison Through the (Ottawa) Looking Glass," 625. Ibid. The arguments presented here are discussed in greater detail in "State Autonomy and Canadian Foreign Policy: The Case of Deep Seabed Mining," Canadian Journal of Political Science 21(2) (June 1988): 297-317. For purposes of this discussion, the term "interest groups" will refer to "collectivities organized around an explicit value on behalf of which essentially political demands are made vis-a-vis government, other groups, and the general public." Presthus, Elite Accommodation in Canadian Politics, 99. The Canadian Institute of International Affairs held a conference on "Domestic Groups and Foreign Policy" in Ottawa, June 1982. Nordlinger, On Politics of Canadian Foreign Policy, 218-19. Krasner, Defending the National Interest, 13. Miliband illustrates this perspective in The State in Capitalist Society, 22 Webb with Zacher, "Alloyed with the Industrialists," 51. The details of the Canadian steel case and the respective lobbying efforts of the Canadian steel industry and Canadian government in Washington are discussed in Kymlicka's paper, "Steel Goes to Washington: Lessons in Lobbying" in Special Supplement to the fall 1987 issue of Business Quarterly 52(2) (Fall 1987): 22-4. Stairs, "Public opinion and external affairs," 128-49.

198 Notes to pages 172-80 40 Poulantzas, Political Power and Social Classes, 301. 41 Pratt, "Dominant Class Theory and Canadian Foreign Policy," 99-135. 42 Keating, "Domestic Groups, Bureaucrats, and Bilateral Fisheries Relations," 1970. 43 Stanbury, "Lobbying and Interest Group Representation in the Legislative Process," 187. 44 Wilson, Canadian Public Policy and Administration, 389. 45 Pross, "Input Versus Within Put," 169. 46 Lyon, "The Provinces and Canada Abroad" in The Provinces and Canadian Foreign Policy, Keating and Munton, 25. 47 Canada, Department of External Affairs, "Canada and the World," a policy statement by Prime Minister Pierre Elliott Trudeau Statements and Speeches (No. 68/17), 29 May 1968, 6. 48 For a more comprehensive look at provincial involvement in Canadian foreign policy see Keating and Munton, The Provinces and Canadian Foreign Policy. 49 Canada, Department of External Affairs, "Federalism and International Conferences on Education," speech by Mitchell Sharp, secretary of state for external affairs, Ottawa, 1968, 50-2. 50 Barry, "The Canada-European Community Long-Term Fisheries Agreement," 24. 51 Lyon, "The Provinces and Canada Abroad," 28. 52 Nossal, The Politics of Canadian Foreign Policy, 191-9. 53 The term is borrowed from Bennett, International Organizations, 293-323. 54 Beesley, "The Negotiating Strategy of UNCLOS in," 193. 55 United States, 96th Congress, Deep Seabed Hard Mineral Resources Act 1980 (Public Law 96-283) in International Legal Materials 19 (4) (July 1980): 1003-20; Federal Republic of Germany, Act on Interim Regulation of Deep Seabed Mining, 1980, in International Legal Materials 19 (4) (July 1980): 1330-9; and France, Law of the Exploration and Exploitation of the Mineral Resources of the Deep Seabed, (loi no. 81-1135 du 23 decembre 1981) in Journal Officiel (23 December 1981): 3499. 56 American Society of International Law, International Legal Materials 21 (September 1982): 950-62. 57 American Society of International Law, International Legal Materials 23 (November 1984): 1354-65. 58 Wertenbaker, "A Reporter At Large," 59.

Bibliographyy

DOCUMENTS

Canada DEPARTMENT OF E N E R G Y , MINES AND RESOURCES

Canada Oil and Gas Lands Administration. Deep Ocean Mining Study: Final Report. 1983 Nickel; Mineral Policy Series, MR, 157, Ottawa, 1976 "Canadian Minerals & International Economic Interdependence." Mineral Bulletin 162. Ottawa, 1978 DEPARTMENT

OF E X T E R N A L AFFAIRS

Assessment by the Canadian Delegation of the Eleventh Session of the United Nations Conference on the Law of the Sea Held in New York from 3 March to 30 April 1982. Ottawa, 1982 "Beyond the Law of the Sea Conference: An Address by the Honourable Mark MacGuigan, Secretary of State for External Affairs, to the Ninth Annual Conference of the Canadian Council on International Law, Ottawa, 24 October 1980." Statements and Speeches, 80/24, 1980 Bureau of Public Affairs. Canada and the Law of the Sea: Resource Information. Ottawa, 1980 Canada and the Law of the Sea: Resource Information. Ottawa, Ministry of Supply and Services, 1978 Foreign Policy for Canadians. Ottawa, 1970 The Future of the Oceans. Ottawa: Information Canada, 1975 Law of the Sea Conference - Resumed Seventh Session, New York: Assessment by the Canadian Delegation. Ottawa, 21 September 1978 Law of the Sea Conference: Eighth Session, Geneva: Assessment by Canadian Delegation. Ottawa, i May 1979

2oo Bibliography Law of the Sea Conference - Resumed Eighth Session, New York: Assessment by the Canadian Delegation. Ottawa, 19 July-24 August 1979 Law of the Sea Conference: New York Portion of Ninth Session, 3 March-4 April 1980: Assessment by the Canadian Delegation. Ottawa, 1980 "Notes for an Address by the Honourable Mitchell Sharp, Secretary of State for External Affairs to the International Law Association, Toronto, 5 November 1969: Law and Arms Control on the Seabed." Press Release, Ottawa, 5 November 1969 "Notes for Remarks by the Honourable Allan J. MacEachen, Deputy Prime Minister and Secretary of State for External Affairs, at the Final Session of the Third United Nations Conference on the Law of the Sea, Montego Bay, Jamaica, 6 December 1982". Statement, 6 December 1982 "Notes for a Speech by the Secretary of State for External Affairs, the Honourable Allan J. MacEachen, to the Halifax Board of Trade, Halifax, 25 February 1975: 'Law of the Sea'." Statement, 25 February 1975 "Notes for a Speech by the Secretary of State for External Affairs, the Honourable Mitchell Sharp, to the International Law Association and CIIA, Montreal, 29 March 1971: Current Developments in International Law and Canadian Foreign Policy." Statement, 29 March 1971 "Press Conference given by the Secretary of State for External Affairs, the Honourable A.J. MacEachen, accompanied by the Minister of Regional Economic Development, the Honourable D. Jamieson and the Minister of State for Fisheries, the Honourable R. LeBlanc and Ambassador J.A. Beesley, Alternate Head of the Canadian Delegation to the Third UN Law of the Sea Conference." Caracas, 28 August 1974 Resources Under the Sea. Ottawa: Ministry of Supply and Services, 1978 Resumed Tenth Session of the United Nations Conference on the Law of the Sea, Geneva, 3-28 August, 1981: Assessment by the Canadian Delegation. Ottawa, 1981 Tenth Session of the United Nations Conference on the Law of the Sea - New York, 9 March to 24 April 1981: Assessment by the Canadian Delegation. Ottawa, 1981 Third U.N. Law of the Sea Conference: Fifth Session: A Canadian Assessment. Ottawa, 19 November 1977 Third U.N. Law of the Sea Conference: Sixth Session: A Canadian Assessment. Ottawa, 15 September 1976 U.N. Law of the Sea Conference: Seventh Session: Assessment by Canadian Delegation. Ottawa, 25 May 1978 United Nations Conference on the Law of the Sea, Resumed Ninth Session, Geneva, 28 July to 29 August 1980: Assessment by the Canadian Delegation. Ottawa, 1980 United Nations Conference on the Law of the Sea, Tenth Session, Geneva, 28 July to 29 August 1980: Assessment by the Canadian Delegation. Ottawa, August 1981 United Nations Conference on the Law of the Sea, Eleventh Session, New York, 8 March to 30 April 1982: Assessment by the Canadian Delegation. Ottawa, 1982

201 Bibliography P A R L I A M E N T : HOUSE OF C O M M O N S 30 Pad. ist Sess. Debates, vol. XII, 11 May 1976, 13386 Standing Committee On External Affairs and National Defence. "Appendix H: The Third United Nations Conference on the Law of the Sea," Minutes of Proceedings and Evidence, 29th Parl. 2nd sess. 6 November 1973, 22:30-46 Standing Committee on External Affairs and National Defence. "Statement by Secretary of State for External Affairs: The Third U.N. Law of the Sea Conference," Minutes of Proceedings and Evidence, 29th Parl. 2d sess., no. 22, 6 November 1973 Standing Committee on External Affairs and National Defence. Minutes of Proceedings and Evidence, 29th Parl. 2d sess., 25 February 1974, 16:34-8 P A R L I A M E N T : MISSION TO THE U N I T E D STATES Hydrocarbons and Soluble Minerals. Press Release no. 5, New York, 14 March 1969 "Statement by D.G. Crosby, in the Economic and Technical Sub-Committee of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction." Press Release no. 3, New York, 13 March 1970 Press Briefing: J. Alan Beesley on the Third U.N. Conference on the Law of the Sea, Sixth Session. New York, 20 July 1977 Press Conference: J. Alan Beesley, Deputy Chairman, Canadian Delegation, Law of the Sea Conference. New York, 3 April 1980

Ontario M I N I S T R Y OF G O V E R N M E N T S E R V I C E S

Telephone Directory, Toronto, November 1979 MINISTRY OF NATURAL RESOURCES

The Future of Nickel and the Law of the Sea. Mineral Policy Background Paper no. 10, February, 1980 Towards a Nickel Policy for the Province of Ontario. Mineral Policy Background Paper no. 4, December 1977

Federal Republic of Germany Act on the Interim Regulation of Deep Seabed Mining, 1980. In International Legal Materials 19 (4) (July 1980): 1330-9

France Law on the Exploration and Exploitation of the Mineral Resources of the Deep Seabed (loi no. 8i-ii35du23decembre 1981). In./o«rAza/O#zc/e/(23December 1981): 3499

202 Bibliography United Kingdom Parliament, House of Lords, sess. 1980-81. Deep Sea Mining (Temporary Provisions) Bill. Bill 32. London: Her Majesty's Stationery Office, 4 December 1980. United Nations Law of the Sea: United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea. New York, 1983 COMMITTEE ON THE PEACEFUL USES OF THE SEA-BED AND

OCEAN

FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION

International Sea-bed Regime and Machinery Working Paper Submitted by the Delegation of Canada, (A/AC. 138/59). 24 August 1971 Economic and Technical Sub-Committee. Statement by D.G. Crosby. New York, 19 August 1970 Economic and Technical Sub-Committee on Item i. Statement by D.G. Crosby. New York, 14 August 1969 Economic and Technical Sub-Committee on Item 2. Statement by D.G. Crosby: Preliminary Study of Ways and Means of Promoting Exploitation and Use of Seabed Resources Beyond the Limits of National Jurisdiction. New York, 21 March 1969 Economic and Technical Sub-Committee on Item 2. Statement by D.G. Crosby. New York, 20 August 1969 Plenary Session. Statement by J.A. Beesley. 24 March 1971 Plenary Session. Statement by J.A. Beesley. Geneva, 5 August 1971 Plenary Session. Statement by J.A. Beesley. Geneva, 18 August 1971 Sub-Committee One. Statement by D.G. Crosby. New York, 23 March 1972 Sub-Committee One. Statement by J.A. Beesley. Geneva, 20 July 1971 G E N E R A L A S S E M B L Y( X X V )

Statement by J.A. Beesley. New York, 15 December 1970 Statement by J.A. Beesley. New York, 17 December 1970 First Committee. Statement by J.A. Beesley. New York, 16 December 1970 INFORMATION CENTRE FOR THE UNITED KINGDOM, IRELAND AND THE NETHERLANDS

Background Release: Third United Nations Conference on Law of Sea Holds Sixth Session in New York, Starting 23 May: Rules for International Sea-bed Area to be Tackled First, BR/77/i8. London, 3 June 1977 Round Up of Session: Seventh Session (First Part) of Third United Nations Conference on Law of Sea, Geneva, 28 March - 19 May: Tackles 'Hard-Core' Issues for Law of Sea Convention, BR/78/2I. London, 6 June 1978

203 Bibliography OFFICE O F P U B L I C I N F O R M A T I O N , P R E S S SECTION

Background Release: Third United Nations Conference on Law of Sea to Hold Seventh Session in Geneva, Beginning 28 March: 1977 Text to be Basis of Negotiations on Law of Sea Convention, SEA/278. New York, 17 March 1978 T H I R D C O N F E R E N C E ON LAW OF THE SEA

Second Session. Statement by the Honourable Jack Davis. Caracas, 3 July 1974 Second Session. Statement in Plenary by D.G. Crosby. Caracas, 11 July 1974 Second Session. Committee One. Statement by D.G. Crosby. Caracas, 11 July 1974 Second Session. Statement in Plenary by J. A Ian Beesley, A/Conf.62/1.4. Caracas, 29 July 1974. Second Session. Committee One. Statement by D.G. Crosby. Caracas, 9 August 1974 Second Session. "United States of America: Draft Appendix to the Law of the Sea Treaty Concerning Mineral Resource Development in the International Sea-bed Area," A/Conf.62/c. 1/1.6. Official Records, vol. HI. New York, 13 August 1975, 169-172 Second Session. "Text on Conditions of Exploration and Exploitation Prepared by the Group of Seventy-Seven," A/Conf.62/c. 1/1.7. Official Records, vol. III. New York, 16 August 1975, 172-3 Second Session. "Chile Working Paper," A/Conf.62/c.i/wp.8/Part I. Geneva, 7 May 1975 Third Session. Informal Single Negotiating Text, Parti, A/Conf.62/wp.8/Part I. Geneva, 7 May 1975 Fourth Session. Revised Single Negotiating Text, A/Conf.62/wp.8/Rev.i/Part i. New York, 6 May 1976 Fifth Session. Statement by the Honourable Allan J. MacEachen. Geneva, 8 May 1975 Fifth Session. Statement by the Honourable Jack Davis. Caracas, 3 July 1975 Fifth Session. Committee One Workshop. Statement by D.G. Crosby. New York, 23 August 1976 Sixth Session. First Committee, Chairman's Working Group. Statement by J. Alan Beesley. New York, 25 May 1977 Sixth Session. First Committee, Chairman's Working Group. Statement by J. Alan Beesley. New York, 26 May 1977 Sixth Session. Committee One Working Group. Statement by D.G. Crosby. New York, 10 June 1977 Sixth Session. Informal Composite Negotiating Text, A/Conf .62./WP .10. New York, 15 July 1977 Plenary Intersessional Meeting. Statement by Alternate Canadian Representative D.G. Crosby. New York, 9 February 1978 Seventh Session. Negotiating Group One. Statement by D.G. Crosby in Tabling Joint Canada/USA Production-Ceiling Proposal. Geneva, 9 May 1978 Resumed Seventh Session. General Committee. Intervention by J. Alan Beesley. 28 August 1978

204 Bibliography Eighth Session. Statement in Plenary by J. Alan Beesley on Committee One Report - Deep Seabed Mining. Geneva, 26 April 1979 Eighth Session. Informal Composite Negotiating Text/Revision i, A/Conf.62/ wp.io/Rev.i. Geneva, 28 April 1979 Ninth Session. Statement in Plenary by J. Alan Beesley. New York, 2 April 1980 Ninth Session. Informal Composite Negotiating Text/Revision 2, A/Conf.62/ wp.io/Rev.2. New York, 11 April 1980 Resumed Ninth Session. Statement in Plenary by J. Alan Beesley. Geneva, 28 July 1980 Resumed Ninth Session. Statement in Plenary by J. Alan Beesley. Geneva, 26 August 1980 Resumed Ninth Session. Draft Convention on the Law of the Sea (Informal Text), A/Conf.62/wp.io/Rev.io. Geneva, 27 August 1980 Resumed Tenth Session. Draft Convention on the Law of the Sea, A/Conf.62/1.78. Geneva, 28 August 1981 Eleventh Session. Statement in Plenary by Ambassador J. Alan Beesley. New York, i April 1982 Eleventh Session. Statement by J.A. Beesley. New York, i April 1982 Eleventh Session. Statement in Plenary by Ambassador J. Alan Beesley. New York, 16 April 1982 Eleventh Session. Statement by J.A. Beesley. New York, 16 April 1982 Eleventh Session. Statement in Plenary by Ambassador J. Alan Beesley. New York, 29 April 1982

United States CONGRESS

96th Deep Seabed Hard Mineral Resources Act, (96-283). Washington, 28 June 1980 D E P A R T M E N T OF STATE

"The Law of the Sea: A Test of International Cooperation." Address by the Hon. Henry A. Kissinger, secretary of state, before the Foreign Policy Association, U.S. Council of the International Chamber of Commerce, and U.N. Association of the U.S.A., New York City, 8 April 1976 "Press Release no. 162. New York, 8 April 1976 SENATE

Committee on Foreign Relations. "Testimony of A.P. Stratham, Vice President INCO Limited on 5493, 'Deep Seabed Mineral Resources Act.'" Washington, 13 June 1979

205 Bibliography BOOKS, ARTICLES AND SPEECHES

Alexander, Lewis; Cameron, Francis; and Nixon, Dennis. "The Cost of Failure at the Third Law of the Sea Conference." Journal of Maritime Law and Commerce 9 (October 1977): 1-32 Alexander, Tom. "The Reaganites' Misadventure at Sea."Fortune (23 August 1982): 129-44 Atkinson, Michael M. and Nossal, Kim. "Bureaucratic Politics and the New Fighter Aircraft Decisions". Canadian Public Administration 24 (Winter 1981): 531-62 Auger, Robert. "Prelude to a Finale Provided by Single Negotiating Text?" International Perspectives (July/August 1975): 34-40 Barkenbus, Jack N. "Seabed Negotiations: The Failure of u.s. Policy." San Diego Law Review 14 (April 1977): 623-36 Barry, Donald. "The Canada-European Community Long Term Fisheries Agreement: Internal Politics and Fisheries Diplomacy." Journal of European Integration 9 (1985): 5-28 Barston, R.P. "Law of the Sea Conference: Old and New Maritime Regimes." International Relations 6 (May 1978): 302-10 Barston, R.P. and Birnie, Patricia. The Maritime Dimension. London: George Allen and Unwin, 1980 Beesley, J. Alan. "The Case for the u.s. Draft Treaty for an Ocean Regime." Comments on Paper no. 8 (Bernard Oxman) to the Villanova Ocean Conference. Villanova, Brazil, 1971 - "Comments at the Annual Meeting of the American Society of International Law." Washington, April 1971 - "Conflicting Approaches to the Control and Exploitation of the Oceans: A Comment." In the Proceedings of the American Society of International Law. Washington, April 1971 - "The Future Legal Regime of the Oceans." Address to the Saclant Symposium Sea Link '75. Annapolis, USA, June 1975 - "The Law of the Sea Conference and its Aftermath". Address to the American Society of International Law, Annual Meeting. San Francisco, 21-23 April 1977 - "New Legal Concepts Created by the Law of the Sea Conference". Interviewed by S. Wright. UN Radio. New York, 18 April 1978 - "The Negotiating Strategy of UNCLOS m: Developing and Developed Countries as Partners - A Pattern for Future Multilateral International Conference?" Law and Contemporary Problems 46 (Spring 1983): 183-94 - Notes for "Avoiding International Conflicts: The Third United Nations Conference on the Law of the Sea: Canadian Interests and Common Concerns." Address to the Canadian Council on International Law, Fifth Annual Conference. Ottawa, 22 October 1976 - "Some Unresolved Issues on the Law of the Sea". Statement to the American Bar Association Institute, Natural Resources Law Section. Houston, Texas, 20 April 1971

206 Bibliography Bennett, A. Leroy. International Organizations 3rd ed. Englewood Cliffs, New Jersey: Prentice Hall Inc., 1984 Bergsten, C.F. "Commodity Shortages and the Ocean." In Perspectives on Ocean Policy. National Science Foundation, 1984, 167-78 Borgese, Elisabeth M. "The Law of the Sea". Scientific American 248 (March 1983): 42-9 - "The New International Economic Order and the Law of the Sea". San Diego Law Review 14 (1976/77): 584-96 Borgese, Elisabeth M. and Krieger, David (Eds). The Tides of Change: Peace, Pollution, and Potential of the Oceans. New York: Mason/Charter, 1975 Brown, E.D. "Pollution from Seabed Mining: Legal Safeguards." Environmental Policy and Law 10 (September 1983): 122-34 Buzan, Barry. A Sea of Troubles?: Sources of Dispute in the New Ocean Regime. Adelphic Papers, no. 143. London: International Institution for Strategic Studies, 1978 - "Canada and the Law of the Sea." Ocean Development and International Law Journal u (3) (1982): 149-180 - "Seabed Issues at Law of the Sea Conference: The Caracas Session." Canadian Yearbook of International Law 12(1974): 222-38 - Seabed Politics. New York: Praegen Publishers, 1976. Buzan, Barry G. and Johnson, Barbara. "Canada at the Third Law of the Sea Conference: Strategy, Tactics and Policy." In Canadian Foreign Policy and the Law of the Sea. Edited by B. Johnson and Mark W. Zacher. Vancouver: University of British Columbia, 1977, 255-310 Buzan, Barry G. and Middlemiss, Danford W. "Canadian Foreign Policy and the Exploitation of the Seabed." In Canadian Foreign Policy and the Law of the Sea. Edited by Barbara Johnson and Mark W. Zacker. Vancouver: University of British Columbia Press, 1977, 1-15 Caminos, Huga and Molitor, Michael. "Progressive Development of International Law and the Package Deal." American Journal of International Law 79 (October 1985): 871-90 Campbell, Colin and Szablowski, George J. The Super-Bureaucrats: Structure and Behaviour in Central Agencies. Toronto: Macmillan of Canada, 1979 "Canada, the Third World and Law of the Sea". Briefing. Ottawa: North-South Institute, March 1981 Canadian Newspaper Services International Ltd. Blue Book of Canadian Business, 1981. Toronto 1981 Carter, J. Edwin. "Remarks to the Annual District 4 Meeting of the Canadian Institute of Mining and Metallurgy". Winnipeg, 28 September 1979 - "Remarks to the Chairman and Chief Executive Officer of Inco Limited to a Special Meeting of the Sudbury Regional Council". 18 September 1979 "Changing Profile of Deep Sea Miners". Science 200(4345) (1978): 1030 Charney, Jonathan I. "The International Regime for Deep Sea-Bed: Past Conflicts

207 Bibliography and Proposals for Progress". Harvard International Law Journal 17(1976): 1-50 - "Law of the Sea: Breaking the Deadlock." Foreign Affairs 55(3) (April 1977): 598-629 Churchill, R.R. and Lowe, A.V. The Law of the Sea. Manchester: Manchester University Press, 1983 Clarkson, Stephen (Ed.). An Independent Foreign Policy For Canada? Toronto: McClelland and Stewart, 1968 Clement, Wallace. "Continental Political Economy: An Assessment of the Relations Between Canada and the United States". Canadian Review of American Studies io(Spring 1979): 77-88 Crommelin, Michael. "An Evaluation of Proposals for a Regime for the Deep SeaBed in Light of National Experience." Canadian Yearbook of International Law J 3(i975): 281-294 Crosby, D.G. "Law of the Sea: Canada's Contribution to a Turn-around in the Conference Lends Hope to New Deliberations." GEOS (Summer 1978): 2-4 - "Statement to the Asian-African Legal Consultative Committee, Plenary Meeting on the Law of the Sea." Lagos, Nigeria, 21 January 1972 Cundiff, W.E. Nodule Shock: Seabed Mining and the Future of Canadian Nickel Mining. Occasional Paper no. i. Montreal: Institute for Public Policy, 1978 de Mestral, A.L.C. and Legault, L.H. J. "Multilateral Negotiation - Canada and the Law of the Sea Conference." International Journal 15 (Winter 1979-80): 47-69 Dewitt, David B. and Kirton, John J. Canada as a Principal Power: A Study in Foreign Policy and International Relations. Toronto: John Wiley & Sons, 1983 Doumani, George A. Ocean Wealth: Policy and Potential. Rochelle Park, New Jersey: Hayden Book Company Inc., 1973 Drolet, Jean-Paul. Minerals and the Law of the Sea. Montreal: Canadian Institute of Mining and Metallurgy, 1979 Eckert, Ross D. The Enclosure of Ocean Resources: Economics and the Law of the Sea. Stanford, California: Hoover Institution Press, 1979 Farrell, R. Barry. The Making of Canadian Foreign Policy. Scarborough, Ontario: Prentice-Hall of Canada Ltd., 1969 Ferguson, Susan. "UNCLOS m: Last Chance for Landlocked States." San Diego Law Review 14(1976-1977): 637-55 The Financial Post Survey of Mines 1977, No. 51. Toronto: Maclean-Hunter Limited, 1977 The Financial Post Survey of Mines and Energy Resources 1980. No. 54. Toronto: Maclean-Hunter Limited, 1980 Fincham, Charles and Van Rensburg, William. Bread Upon the Waters: the Developing Law of the Sea. Tel Aviv: Turtledove Publishing, 1980 Ford, Glyn and Gibbons, Michael. "Whose Nodules are They?" New Scientist 82 (1156) (1979): 631-3 Frankel, Joseph. International Politics: Conflict and Harmony. London: The Penguin Press, 1969

208 Bibliography Friedheim, Robert L. Managing Ocean Resources: A Primer. Boulder, Colorado: Westview Press, 1979 Galey, Margaret E. "From Caracus to Geneva to New York: The International Seabed Association as a Creator of Grants." Ocean Development and International Law: The Journal of Marine Affairs 4 (1977): 171-90 Gamble, John, K. Jr. "Assessing the Reality of the Deep Seabed Regime." San Diego Law Review 22 (1985): 779-92 Goldstein, Walter. "Western Concerns Over Seabed Mining." Resources Policy 8 (June 1982): 82-3 Gotlieb, A.E. "Canadian Diplomatic Initiatives: The Law of the Sea." In Freedom and Change: Essays in Honour ofL.B. Pearson. McClelland and Stewart, 1975, 136-51 - "Technology and Law." Address to the Canadian Council on International Law. Ottawa, 31 October 1981 Guillemette, N.G. and Martin, H.C. "Law of the Sea Conference sees Face-off between Developed and Developing Nations." The Northern Miner (24 November 1977): 84, BIO-II Hage, Robert E. "The Third United Nations Conference on the Law of the Sea: A Canadian Retrospective." Behind the Headlines 11,5. Toronto: Canadian Institute of International Affairs, 1983 Haight, G.W. "Law of the Sea Conference - Why Paralysis." Journal of Maritime Law and Commerce 8 (April 1977): 281-93 Hardy, Michael. "The Implications of Alternative Solutions for Regulating the Exploitation of Seabed Minerals." International Organization 31 (Spring 1977): 313-42 Herman, Lawrence L. "The Niceties of Nickel - Canada and the Production Ceiling Issue at the Law of the Sea Conference." Syracuse Journal of International Law and Commerce 6(Winter 1978-1979): 265-91 Hollick, Ann L. u.s. Foreign Policy and the Law of the Sea. Princeton, New Jersey: Princeton University Press, 1981 Hollick, Ann L. and Osgood. Robert E. New Era of Ocean Politics. Baltimore, Maryland: The Johns Hopkins University Press, 1974 Holmes, John W. Canada: A Middle-Aged Power. Toronto: McClelland and Steward Ltd., 1976 Humphrey, G.F. "Conference Report: Australia and the Law of the Sea." Marine Policy 11(3) (July 1987): 247-49 Jaenicke, Gunther; Schanze, Erich; and Hauser, Wolfgang. A Joint Venture Agreement for Seabed Mining. Frankfurt: Alfred Metzner Verlag, 1981 Jensen, Lloyd. Explaining Foreign Policy. Englewood Cliffs, New Jersey: PrenticeHall, 1982 Joyce, Chris. "Seabed Mining Turns Up Few Environmental Problems." New Scientist 78(1107) (1978): 733 Keating, Thomas. "Domestic Groups, Bureaucrats, and Bilateral Fisheries Relations." International Journal 39 (Winter 1983-84): 146-70

209 Bibliography Keating, Tom and Munton, Don (Eds). The Provinces and Canadian Foreign Policy. Toronto: Canadian Institute of International Affairs, 1985 Kimball, Lee. "The Law of the Sea." Environment 25 (November 1983): 14-20 Kimball, Lee and Schneider, Adolf. "At the Threshold of a Sea Convention." Environmental Policy and Law 6 (23 September 1980): 117-34 Kimball, Lee; Schneider, Adolf; and Bridgman, James. "Inching Forward Towards Final Agreement - UNCLOS m on the last lap of a long road?" Environmental Policy and Law 6(12 June 1980): 69-77 Kirthisingha, P.N. "International Policies on the Economic Resources of the DeepSeabed". Resources Policy 9 (June 1983): 77-98 Koh, Tommy T.B. "Negotiating a New World Order for the Sea", Virginia Journal of International Law 24(4) (Summer 1984): 761-84 Krasner, Stephen D. Defending the National Interest: Raw Materials Investments and u.s. Foreign Policy. Princeton: Princeton University Press, 1978 Kronmiller, Theodore G. The Lawfulness of Deep Seabed Mining, vols. i and 2. New York: Oceana Publications, Inc., 1980 Kymlicka, B.B. "Steel Goes to Washington: Lessons in Lobbying." In Special Supplement to Fall 1987 Issue of Business Quarterly 52(2) (Fall 1987): 22-4 Langevad, E. J. "Exploitation of the Mineral Resources of the Oceans as Affected by the Provisions of the Convention on the Law of the Sea." Natural Resources Forum 7 (July 1983): 227-38 Lapointe, P.A. "Caracas 1974: Law of the Sea Advanced But Much Remains to be Done." International Perspectives (November/December 1974): 19-24 - "Law of the Sea Conference: Report on New York Session." International Perspectives (July/August): 22-25 Laxer, James. Canada's Economic Strategy. Toronto: McClelland and Stewart Ltd., 1981 - The Liberal Idea of Canada: Pierre Trudeau and the Question of Canada's Survival. Toronto: James Lorimer & Company, 1977 Laxer, Robert. Canada's Unions. Toronto: James Lorimer and Company, Publisher, 1976 Logan, R.M. Canada, the United States, and the Third Law of the Sea Conference. Montreal: C.D. Howe Research Institute, 1974 Luard, Evan. The Control of the Sea-bed: Who Owns the Resources. London: Heinemann, 1977 Lyon, Peyton V. "The Trudeau Doctrine." International Journal 26 (Winter 1970-71): 19-43 Lyon, Peyton V. and Tomlin, Brian W. Canada as an International Actor. Toronto: Macmillan of Canada, 1979 MacGuigan, Mark. Transcript of interview with Michael Crampton of CBC "Sunday Morning". Ottawa, 19 March 1980 McDorman, Ted L. "The 1982 Law of the Sea Convention: The First Year". Journal of Maritime Law and Commerce 15 (April 1984): 211-32 McRae, Donald M. "Canada and the Law of the Sea: Some Multilateral and Bilateral

210 Bibliography Issues." In Canadian Issues: Canada and the Sea. Edited by Rowland Lorimer and Stanley E. McMullin. Willowdale, Ontario: Association for Canadian Studies, 1980, 161-73 - "The New Oceans Regime: Implementing the Convention." Marine Policy 8 (April 1984): 83-94 Malone, James L. "Who Needs the Sea Treaty." Foreign Policy 54 (Spring 1984): 44-63 Marshall, Eliot, "us Readies for Confrontation of Sea Law." Science 25(19 March 1982): 1480-1 Mashayekhi, Mina. "The Present Legal Status of Deep Seabed Mining," Journal of World Trade Law 19 (May/June 1985): 229-50 Mawhinney, Barry. "Nine Years of Negotiations May Be Reaching a Conclusion." International Perspective (January/February 1978): 33-9 Miles, Edward. "The Structure and Effects of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea." International Organization 31 (Spring 1977): 159-234 Miles, Edward and Gamble, John, K. Jr. (Eds). Law of the Sea: Conference Outcomes and Problems of Implementation. Cambridge, Mass.: Ballinger Publishing Company, 1977 Miliband, Ralph. The State and Capitalist Society. New York: Basic Books, 1969 Mining in Canada: Facts and Figures 1978. Canada: The Mining Association of Canada, 1978 Nordlinger, Eric. On the Autonomy of the Democratic State. Cambridge, Mass.: Harvard University Press, 1981 Nossal, Kim Richard. "Allison Through the (Ottawa) Looking Glass: Bureaucratic Politics and Foreign Policy in a Parliamentary System." Canadian Public Administration 22 (Winter 1979): 610-26 - "Analysing the domestic sources of Canadian foreign policy." International Journal 39 (1983-84): 1-22 - "Bureaucratic Politics and the Westminster Model." In International Conflict and Conflict Management: Readings in World Politics. Edited by Robert O. Matthews, Arthur G. Rubinoff, and Janice Gross Stein. Scarborough: Prentice-Hall of Canada, 1984, 120-27 - The Politics of Canadian Foreign Policy. Toronto: Prentice-Hall, 1985 O'Connell, D.P. The International Law of the Sea, vols. i and 2. Edited by I.A. Shearer. Oxford: Clarendon Press, 1982 Oda, Shigeru. The Law of the Sea in Our Time - II: The United Nations Seabed Committee, 1968-1978. Leyden, Netherlands: A.W. Sijthoff International Publishing Company BV, 1977 Ogley, Roderick. Internationalizing the Seabed. Aldershot, Hampshire: Gower Publishing Company Limited, 1984 Oxman, Bernard H. "Third United Nations Conference on the Law of the Sea: 1976 New York Sessions". American Journal of International Law 71 (1977): 247-69

211 Bibliography - The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)." American Journal of International Law 76(1) (January 1982): 1-23 Panayatou, Theodore. The Copper Cartel and Canada: Likelihood and Implications ofopEC-Type Strategies. Resource Paper no. 32. Vancouver: Programme in Natural Resource Economics, University of British Columbia, January 1979 Panitch, Leo (Ed). The Canadian State: Political Economy and Political Power. Toronto: University of Toronto, 1977 Pardo, Arvid. "The Convention of the Law of the Sea: A Preliminary Appraisal." San Diego Law Review 20 (April 1983): 489-503 Pasho, D.W. "Review of the Development of Deep Seabed Manganese Nodules." The Northern Miner (14 April 1977): B6, 69, 813 Patton, Donald J.; Beckton, Clare; and Johnston, Douglas M. The Future of the Offshore: Legal Developments and Canadian Business. Halifax: Centre for International Business Studies, Dalhousie University, 1977 Poulantzas, Nicos. Political Power and Social Classes. London: New Left Books, 1973 Pratt, Cranford. "Dominant class theory and Canadian foreign policy: the case of the counter-consensus." International Journal 39 (1983-84): 99-135 Presthus, Robert E. "Interest Groups and the Canadian Parliament: Activities, Interaction, Legitimacy and Influence". Canadian Journal of Political Science 10 (December 1971): 444-60 - Elite Accommodation in Canadian Politics. Toronto: Macmillan of Canada, 1973 Pross, A. Paul. "Canadian Pressure Groups in the 19705: Their Role and their Relations with the Public Service." Canadian Public Administration 18 (Spring 1975): I2 *-35 - Pressure Group Behaviour in Canadian Politics. Toronto: McGraw-Hill Ryerson Ltd., 1975 Radetzki, M. "The Last Great Colonization on Earth." Cooperation Canada 13 (March/April 1974): 3-8 Ratiner, Leigh S. "The Law of the Sea: A Crossroads for American Foreign Policy." Foreign Affairs 60 (Summer 1982): 1006-21 Richardson, Elliot L. "Sea Law Convention Benefits u.s. National Interests". Sea Technology (June 1982): 19 - "The United States Posture Toward the Law of the Sea Convention: Awkward but not Irreparable." San Diego Law Review 20 (April 1983): 505-19 Riddell-Dixon, Elizabeth. "Deep seabed mining: a hotbed for governmental politics?" International Journal 40 (1985-86): 72-94 - The Domestic Mosaic: Domestic Groups and Canadian Foreign Policy. Toronto: Canadian Institute of International Affairs, 1984 - "State Autonomy and Canadian Foreign Policy: The Case of Deep Seabed Mining," Canadian Journal of Political Science 22(2) (June 1988): 297-317 Ross, David A. Opportunities and Uses of the Ocean. New York: Springer-Verlag Inc., 1979

212 Bibliography Sanger, Clyde. Ordering the Oceans, the Making of the Sea Law. Toronto: University of Toronto Press, 1987 Schneider, Jan. "Report of the Committee on Law of the Sea." American Branch of the International Law Association (July 1982): 83-111 Schultz, Richard. "Prime Ministerial Government, Central Agencies, and Operating Departments: Towards a more Realistic Analysis." In Apex of Power: The Prime Minister and Political Leadership in Canada, 2nd ed. Edited by Thomas A. Hockin. Scarborough, Prentice-Hall, 1977, 229-46 Sebenius, James K. Negotiating the Law of the Sea. Cambridge, Mass.: Harvard University Press, 1984 Sharp, Mitchell. Transcript of interview with Bob Abra, CBC-IS, Montreal, 21 December 1972 Shusterich, Kurt. "Mining the Deep Seabed: A Complex and Innovative Industry." Marine Policy 6 (July 1982): 175-92 Stairs, Denis. "Public Opinion and External Affairs: Reflections on the Domestication of Canadian Foreign Policy." International Journal 33 (1977-78): 128-49 Stanbury, William T. "Lobbying and Interest Group Representation in the Legislative Process." In The Legislative Process in Canada: The Need for Reform. Edited by William W. Neilson and James C. MacPherson. Toronto: Institute for Research on Public Policy, 1978, 167-207 Swabey, Alan. "Law of the Sea Negotiators Need Support." IBS News (July 1981): 3 Thompson, Fred and Stanbury, W.T. "The Political Economy of Interest Groups in the Legislative Process in Canada." In The Canadian Political Process, 3d. ed. Edited by Richard Schultz, Orest M. Kruhlak and John C. Terry. Toronto: Holt, Rinehart and Winston of Canada Ltd., 1979, 224-49 Urquhart, Elizabeth. The Canadian Nonferous Metals Industry: An Industrial Organization Study. Kingston, Ontario: Centre for Resource Studies, Queen's University, 1978 Von Riekhoff, Harold. "The Impact of Prime Minister Trudeau on Foreign Policy." InternationalJournal33 (1978): 267-86 Warner, J.P. "Law of the Sea and the Development of International Law and Institutions." University of Toronto, 1976 Warnock, John W. Partner to Behemoth: the Military Policy of a Satellite Canada. Toronto: New Press, 1970 Webb, Michael C. with Zacher, Mark W. "Alloyed with the Industrialists: Canadian Mineral Industries and Canadian Policy Towards Intergovernmental Regulation of Mineral Markets." Vancouver: Institute of International Relations, University of British Columbia, October 1983 Wertenbaker, William. "A Reporter at Large: the Law of the Sea -1." New Yorker 58 (i August 1983): 38-65 - "A Reporter at Large: the Law of the Sea - II". New Yorker 59(8 August 1983): 56-83

213 Bibliography Wilson, V. Seymour. Canadian Public Policy and Administration: Theory and Environment. Toronto: McGraw-Hill Ryerson, 1981 Wolfers, Arnold. Discord and Collaboration: Essays on International Politics. Baltimore: The Johns Hopkins Press, 1962 Wojciechoweski, Margot J. Federal Mineral Policies, 1945 to 1975: A Survey of Federal Activities that Affected the Canadian Mineral Industry, Working paper no. 8. Kingston: Centre for Resource Studies, Queen's University, May 1979 Wurfel, Seymour W. Emerging Ocean Oil and Mining Law. Raleigh, North Carolina: Sea Grant Publication, March 1974 INTERVIEWS

Terry C. Bacon: assistant under-secretary, Legal Affairs Branch, Department of External Affairs, Ottawa, n August 1983. J. Alan Beesley: ambassador and permanent representative, Permanent Mission of Canada to the United Nations, New York, 13 September 1983. Andre Bluteau: Constitutional, Administrative and International Law Section, Department of Justice, New York, 10 April 1981. John L. Bonus: managing director, Mining Association of Canada, Ottawa, 16 August 1983. Victor Bradley: International Division, Ministry of State for Science and Technology, Ottawa, 17 August 1983, and 7 July 1987. Martin Colpitts: chief, Ocean Industries Division, Transport and Industries Branch, Department of Industry, Trade and Commerce, Ottawa, 23 August 1983. Donald G. Crosby: former director-general, Resource Management and Conservation Branch, Department of Energy, Mines and Resources, Ottawa, 17 September 1987. Alvaro de Soto: counsellor, Peruvian Mission to the United Nations, New York, April 1981. Bruce Gillies: Law of the Sea Section, Legal Operations Division, Department of External Affairs, Ottawa, 25 October 1982. Nelson G. Guillemette: Resource Industries Branch, Assessment Bureau, Foreign Investment Review Agency, Ottawa, 22 August 1983. Robert E. Hage: chief, Federal-Provincial Agreements Policy Analysis and Coordination, Canada Oil and Gas Lands Administration, New York, 10 April 1981; and Ottawa, 9 August 1983. James E. Harlick: departmental assistant, Minister's Office, Department of External Affairs, Ottawa 22 August 1983 and 23 August 1984. Lawrence L. Herman: Burke-Robertson, Chadwick & Ritchie, Ottawa, 12 August 1983 (formerly with Legal Operations Division, Department of External Affairs). John Ivany: corporate counsel, Noranda Mines Limited, Toronto, 2 February 1982. William Jackson: Mineral Policy Sector, Department of Energy, Mines and Resources, Ottawa, 15 May 1982.

214 Bibliography Olivier Jalbert: Legal Operations Division, Department of External Affairs, New York, April 1981; and Ottawa, 13 April 1983 and 10 August 1983. Robert Keyes: Department of Energy, Mines and Resources, Ottawa, 11 August 1983 (previously represented the Mining Association of Canada on the Canadian delegation to UNCLOS m). Leonard Legault: legal advisor, Department of External Affairs, Ottawa, 15 August 1983Soe Lin: International Finance Division, Department of Finance, Ottawa, 15 August 1983Mary McLeod: Office of the Legal Adviser, Oceans and Environment and Science, U.S. Department of State, New York, 12 April 1981. Eric R. Meeks: Department of Industry, Trade and Commerce, Ottawa 23 August 1983Thomas Mohide: director, Mineral Resources Branch, Ministry of Natural Resources, Government of Ontario, Toronto, 29 January 1982. James Mullin: vice-president, International Development and Research Centre (formerly director, International Division, Ministry of State for Science and Technology), Ottawa, 15 July 1987. Burt Munro: assistant to the director for Canada, United Steelworkers of America, Toronto, 18 February 1982. Eli H.B. Mwanang'onze: director, Geological Survey Department, Republic of Zambia, New York, 13 April 1981. E. Keith O'Brien: director, Government Affairs, INCO Limited, Toronto, 10 February 1982. Donald Page: deputy director, Historical Division, Department of External Affairs, Ottawa, 28 October 1982 and 15 August 1983. David Pasho: director, Ocean Mining, Resource Evaluation Branch, Canadian Oil and Gas Lands Administration, New York, April 1981; and Vanier, 10 and 18 August 1983, 22 August 1984, and 18 September 1987. Michael Phillips: senior departmental assistant, Department of External Affairs, Ottawa, 18 May 1982. Thomas Shenstone: International Economic Relations Division, Department of Finance, Ottawa, 15 August 1983. Dugal Y. Stewart: Supply and Demand Division, Industry, Trade and Commerce, Ottawa, 31 August 1983. Alan Swabey: patent attorney, Swabey, Mitchell, Houle, Marcoux & Sher, Toronto, 4 February 1982, 3 September 1986, and 31 August 1987. Erik B. Wang: director, Consular Policy Division, Department of External Affairs, Ottawa, 17 May 1983. Michael Wood: U.K. Mission to the United Nations, New York, April 1981.

Index

Activities (exploration for and exploitation of deep seabed resources), 8, 9, 10, 183; moratorium on, 34. See also deep seabed mining Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Seabed(i 58, 77, 140, 162-4; allies on production ceiling, 37. 55, 56, 76, 143-4; Committee One issues, 33, 34, 36-7, 38, 39, 41-2, 45, 58, 66, 67, 77, 136, 144, 168, 172-3; Committee l\vo, 22, 23, 146, 151; Committee Three, 22, 23, 151; deep seabed mining country, 53, 54, 70, 73, 74, 77; foreign policy, 4, 16, 57; foreign policy-making process, 13, 14, 15, 18, 166-7, 169; government documents, 16; international institutions, 20, 21, 22; international law, 20,

21, 22, 27; international negotiations, 35; landbased producers, 12, 19, 36,46,74,77, 118, 134, J 36, 139; 1973 position paper on the law of the sea, 35; Seabed Committee, 33; signatory to Law of the Sea Convention, 52; UN, 21, 22, 27, 163,175; UNCiosm, 3, 12, 14, 19,

Committee, 124, 125, 127, 171; Law of the Sea Convention 128-9; MAC, 125, 129; mining companies, 125; MOSST, 124, 127; tactics, 95, 127, 129, 155, 170; UNCTAD, 124, 125,

127; us, 95, 129-30,155, 170-1 Canadian Chamber of Commerce, 123, 124 Canadian Committee of the 22, 23, 178-81; US, 91, Pacific Basin Economic 103, 163, 171, 174; Western Industrialized Council, 123 Canadian Council, InternaStates, 80, 95, 134, 139, tional Chamber of Com163. See also antisubsidization clause; merce, 123, 181 Canadian delegation, 11, cabinet; coastal states; 12, 13, 14, 15, 19, 46, 90, Committee One; common 133-4; allies on producheritage of mankind; tion ceiling, 136, 151; antiCouncil (ISA); deep seabed subsidization and free mining issues; Enterprise; market access clauses, 45, fair market access clause; Law of the Sea Convention; 48, 138; Australia, 137-8, 144; cabinet, 145, 149, International Seabed 161; Committee Two, 52, Authority; preliminary in132; compensatory financvestment protection; Preing, 84-5, 119; composiparatory Commission; tion, u-12, 15, 36, 93, review conference; United 104, i n , 132, 144-5, Nations Conference on 149-50, 156-7, 181; DEA Trade and Development lawyers, 58, 64, 156, 176; Canada-European Commudeep seabed mining counnity Long-Term Fisheries tries, 134; equipment, 43; Agreement, 97, 176 functionalism, 145-6; Canadian AssociaGroup of 77, 134, 146; tion - Latin America and Caribbean, 123 Group of 12, 50, 134, 140, 159; internal cohesion, Canadian Business and In140, 148, 151, 160;landdustry International Advisory Committee (CBIIAC), based producers, 119, 134, Z J 35> '36-7; Law of the 3, 61, 95, 112, 123-4, I 2 7> Sea Convention, 180; like131, i53> 157, 158, 174, minded states, 136, 183, i94nio; Canadian 139-40, 142-3, 146; other delegation, 128, 131, 133, I Committee One issues, 53, 5°, !55! Committee One 54, 61, 132; Preparatory issues, 112, 124-6, 128, Commission, 181; produc173; DBA lawyers, 95, 124, tion ceiling, 31, 42, 46, 69, 125, 127-8,130-1, 155; 73, 103, 123, 137, 142, DITC, 124; DOF, 124; free 144, 146, 154; production market forces, 125, 126; floor, 48, 109; provinces, Group of 12, 158; ICLOS, 133, 147; success, 46, 52, 128; Industrial Property

217 132, 144, 151; tactics, 37, 40, 103, 128, 136-7, 144-7, ^3; technical advisors, 45-6; technology transfers, 89, 125, 141; United Kingdom, 140; us, 82, 140 Canadian Export Association, 123 Canadian Importers Association, 123 Canadian International Development Agency (CIDA), 122 Canadian Manufacturers' Association, 123 Canadian nickel production ceiling, 43-5, 53, 163 Caribbean states, 171 Carter, Jimmy, 142 central agencies, 167-8 Challenger HMS, 6 Chile, 17, 44, 134 China, 180 civil service. See also bureaucrats Clark, Joe, 100 Clark, Lome, 92, 101 Clement, Wallace, 163 Club of Rome, 99, 114 coastal states, 36, 181; continental shelf, 159; environmental protection, 52; group of, 8, 52, 146; jurisdiction, 3, 8, 12, 23, 2 5 , 3 1 , 3 2 , 3 6 , 7 2 , 9 7 , 125, 178-80 cobalt, 5, 24, 25, 44, 98, 113, 114, 119, 135 Columbia, 44, 134 Committee One, 3,7, 8-9, 12, 14; alignments, 9-10, 36, 50, 159; Canada's objectives, 12, 20, 24, 28, 36; Law of the Sea Convention, 52; mandate, 8; progress, 66 Committee Two, 14, 38, 66, 90, 97; alignments, 36; mandate, 8, 25; continental shelf, 68; revenuesharing, 71

Index

Committee Three, 19, 38, 90; Law of the Sea Convention, 52; mandate, 8 commodity agreements, 43, 72,78, 81 common heritage of mankind, 5, 9, 21, 24, 28, 30,32,33,36,37,40,52, 118, 150, 178-9, 181; Group of 77, 39; prerequisites, 34, 126; private member's bill, 63 Commonwealth, 141 Conference. See United Nations Conference on The Law of The Sea III consortia, 70. See also deep seabed miners consumer states (of minerals), 40, 43, 79, 100; Canada-us nickel production ceiling, 47; Law of the Sea Convention, 51-52; nickel production floor, 48; subsidization, 44 continental shelf, 8, 22, 23, 24, 27, 30, 33, 35, 36, 40, 59, 68, 71, 72, 81, 97; extension, 20, 23, 38, 52, 68-9, 7i Cookes, Stewart, 107 Copithorne, Maurice, 87 copper, 5, 7, 24, 25, 56, 98, 113, 114, 135 Council (ISA), 183; decision making, 27-8, 37, 50, 53, 54; mandate, 53; membership, 50, 53-4, 77, 88 Craik, Donald, 104 Crosby, Don, 41, 68, 69, 73, 92, i88n23; Canadian delegation, 133, 144, 146-7, 148; continental shelf, 68, 69; ICLOS, 87, 88; Inco, 118; production ceiling, 42-4, 46, 69, 80, 85, 122, 156, 166; tactics, 145; USWA, 107 Cuba, 44, 114, 134, 135, 136 Cyr, Alexander, 63 Davis, William, 100

DEA, see Department of External Affairs DEA lawyers, see Department of External Affairs lawyers debt relief, 160 Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction (GA 17 Dec 1970) (A/res. 2749 [xxv]), 34 deep seabed, 5, 6, 7, 8, 9, 21, 25, 183; economic significance, 5, 7, 9, 30, 33, 38; ideological significance, 5, 7, 9; political significance, 5,7, 9; resources, 3, 5, 7, 8, 10, 20, 30, 50. See also activities deep seabed miners, 7, 24, 26, 88; compensatory financing, 84; cost of production, 44, 159; international markets, 43, 44, 45, 46, 47; obligations, 82; quantitative restrictions, 47, 79; us review (1981), 50 deep seabed mining, 3, 5, 6, 8, 10, 12, 22, 27, 32, 181; claims, 30; issues, 13, 14, 19, 24; land-based producers, 25, 45, 103; subsidization, 44 deep seabed mining legislation, 49, 116, 118, 140, 160,179 deep seabed mining states, 12; Council membership, 53; Law of the Sea Convention, 51-2 Demerara Bauxite Company, 171 DEMR. See Department of Energy, Mines and Resources Denmark, 50 Department of Energy, Mines and Resources (DEMR), 4, 13, 14,15, 70,

2i8 Index 90,94,153, 158,165, 183; 94, 141, 168; business groups, 124, 130-1, 150; business groups, 113; cabinet, 86, 145, 168; Canada Oil and Gas Lands Administration, 60, Canadian delegation, 133, 134, 145, 148-50, 157; 69; Canadian delegation, Committee One issues, 133, 134; Committee One 78-9, 82, 84, 86, 181; issues, 78-9, 81-2, 84, 86, definition, 65; dominance, 89; deep seabed mining, 58, 67, 85, 88-93, 128, 69-70; dominance, 173; 148-50, 153,156-7, group of experts, 45; 165-6, 173; Group of 77, Group of 77, 78, 83; 76; ICLOS, 87, 92, 148, 153, ICLOS, 87; involvement, 64, 157; Inco, 118; interest 141; land-based producers, groups, 173-4; interna78; Law of the Sea Contional law, 75; land-based vention, 166; Mineral producers, 78, 137, 143; Policy Sector, 60, 69, 79; Law of the Sea ConvenMAC, 170; mining comtion, 78, 166; leadership, panies, 113; ministerial 64, 96; less developed support, 167; Preparatory countries, 78; ministerial Commission, 181; priorities, 75-85; provinces, support, 62,68, 88, 89, 90, 93, 149, 156-7, 167; 102, 103, 104; Resource new international Management and Consereconomic order, 75-6, 82; vation Branch, 60, 68, 79, priorities, 75-85; prov127; tactics, 165; us, 102; inces, 100, 103, 104; tacWestern industrialized tics, 137, 141, 148-50, states, 78, 83 165; United Nations, 75; Department of External us, 142 Affairs (DEA), 4, 13, 14, 60, Department of Finance 64, 67, 70, 92, 183; (DOF), 4, 13, 58, 64, 67, Bureau of Defence and 70,71,85,94, 153, 154, Arms Control, 68; Bureau 165, 167, 168, 183; business of us Affairs, 60, 68; groups, 95, 174; Canadian Commercial Policy Dividelegation, 70, 71, 83, 94, sion, 67; Commodity and 133, 134; Committee One Energy Policy Division, issues, 72, 76, 77, 78, 79, 67; documents, 16; 80, 81, 83, 85, 94, 141, Economic Bureau, 67; 153, 165-6, 181; Commiteconomic divisions, 60, tee Two, 70; free enter66-8; Federal-Provincial prise, 76, 78, 83; GATT, Co-ordination Division, 70-1, 83; Group of 12, 60, 68, 168; UNCIDS m, 158; ICLOS, 70, 71, 93, 94; 165. See also Department International Economic of External Affairs Relations Division, 60, 72, lawyers; Legal Affairs 83; international trade, 78, Bureau; Legal Operations 81; less developed counDivision tries, 75, 78, 83; Department of External ministerial support, 86, Affairs Act, 168 87, 88, 89, 90, 93, 167; Department of External priorities, 70, 71, 75-85; Affairs lawyers (DEA tactics, 124, 165; Western lawyers), 4, 13, 14, 15, 66,

industrialized states, 76-7, 78,82 Department of Fisheries, 93 Department of Industry, Trade and Commerce (DITC), 4, 13, 58, 64, 67, 85, 94. 153) 154, 165, 168, 183; business groups, 95, 174; Canadian delegation, 72, 73, 132, 150; Committee One issues, 72-3, 75, 76,77,78,79,80,81, 82, 83, 141, 165-6; free enterprise, 76, 78; GATT, 83; Group of 12, 158; ICLOS, 73 > 74' 93> 94! Industrial Resources Division, 60, 72, 73; international trade, 78, 81; land-based producers, 78, 80; less developed countries, 75, 78; Marine Systems Division, 72; ministerial support, 86, 87, 88, 89, 90, 93; Noranda, 73; Ocean Industries Division, 60, 72, 73; Office of General Relations, 72, 73, 166; Organization for Economic Cooperation and Development, 80; priorities, 75-85; tactics, 124, 165; Western industrialized states, 76-7, 78,82 Department of Justice, 64, 65 Department of National Defence, 68 Department of the Environment, 64, 93 developed countries, 7,8, 9, 10, 12, 13, 23, 24. See also Western industrialized states developing countries. See less developed countries Dewar, Bev, 74 Dewitt, David, 162 dispute settlement, 5, 8, 28, 181 Docquier, Gerard, 109

219

Index

Federal Republic of Germany, 5, u, 20, 139, 141; Committee One issues, 47, 50, 141-2, 178; deep seabed mining legislation, 34, 49, 91, 160; Law of the Sea Convention, 179; likeEast-West dichotomy, 32, 136 minded states, 179-80 financial resources, 3, 13, Eastern Europe, 10, 50, 136 21, 71 Eastham, Percy, 73, 166 Egypt, 134 Finland, 50, in Elliott, Charles, 121-2 fishing, 5, 8, n, 22, 23, 27, Engo, Paul, 41, 42; nickel 32.35.36 production ceiling, 42-3, fishing industry (Cana44,45,73, 135 dian), 22, 23, 35, 59, 72, Enterprise, 10, 12, 27, 39, 90, 97, 144, 173, 175-6 Food and Agriculture 88, 183; activities, 24, 41; Organization, 33, 87 deep seabed miners, 55; financing, 37, 41, 55; France, 47, 52, 114, 139, 175; Law of the Sea ConGroup of 77 position, 37; vention, 179; like-minded land-based producers, 44, 55; parallel banking states, 179-80 system, 41; privileges, 26, free enterprise, 10 44,45,55,82-3, 127; free enterprise system, 3, technology, 41, 51, 54, 10, 15, 20, 44, 67, 158, 126, 128; viability, 41, 52 161, 163 environment (marine), 22, functionalism, 50, 53, 145-6 23, 27, 35, 87; Law of the Future of Nickel and the Sea Convention, 5, 23, 52; Law of the Sea, The pollution, 22, 29, 30, 32, (1980), 102 35, 38, 87, 144 Erola, Judy, 59, 110, 120, Gabon, 134, 175 Gauvin, Martin, 69, 84, 102 157. i?3 European Community, 45, General Agreement on 137, 142 Tariffs and Trade (GATT), exclusive economic zone, 5, 44,53,66,70-1,72,83-4, 20, 27, 31, 32, 97, 180; "39. ^3 Canada, 36; Law of the Germa, Bud, 101 Sea Convention, 52 Germa, Gary, 125 export subsidies, 44 Ghana, 48 Glassco Commission's fair market access clause, Report, 65 31,48-9,53,83,84, 138, Goldberg, Melville, 74, 75 159, 161 Gotlieb, Allan, 167 Falconbridge Nickel Mines governmental politics apLimited, 98, 102, 106, proach, 15, 16, 158, 164-8 108, in, 112, 120, 121, Gray, Herb, 120 122, 127, 174 Greathed, Edward, 99, 101 federal-provincial relations, Grossman, Larry, 102 65, 96-7, 99, 104, 176 Group of 11. See Group of Federal-Provincial Relations . 12 Group of 77, 8, 10, 11, 20, Office, 100, 167 domestic determinants, 4, 12, 16, 159-64 Dominican Republic, 134 Draft Convention on the Law of the Sea (1980), 31, 52

24, 50, 76, 138-9, 142, 183; Committee One issues, 9, 10, 38-9, 40, 45, 47,51,54, 128, 138, 139, 146, 161; concessions, 51, 179; deep seabed mining legislation, 49, 116, 118; Group of 12 proposals, 51; land-based producers, 138-9, 146; like-minded states, 180; priorities, 178; UNCTAD, 162; us review, 50,82 Group of 12, 50-1, 140 Guatemala, 44, 108, in, "3. i34 Guillemette, Nelson, 58; Canadian delegation, 71; Committee One issues, 74, 85, 94; tactics, 94-5 Gulf of Maine, 97 Guyana, 171 Hage, Robert, 134 Haig, General Alexander, 129,130 Hews, Charles F, 118 high seas (freedom of), 10, 32 Holmes, John, 163 House of Commons, 57, 61, 62; party politics, 62; Standing Committee on External Affairs and National Defence, 63 Hudon, Denis, 75 Iceland, 50 Inco Limited, 12, 27, 98, 102, 103, 108, 112, 118-19, 121; Canadian delegation, 133, 150; Committee One issues, 39, 51, 54.56, 113-16, 118, 119, 122, 123, 125, 126; DEA

lawyers, 112, 118, 119, 174; deep seabed mining, 99, 112, 113-14, 115, 117, 120, 150; deep seabed mining legislation, 120; free enterprise system, 114; Governmental Affairs

220 Division, 118-19; Inco United States Limited, 120; land-based producer, 112, 113, 114, 116-17, 118; Law of the Sea Convention, 115; MAC, 112, 116, 117, 127; Market Research Division, 119; Ocean Management Incorporated, 99, 114; priorities, 113, 114, 115, 121 India, 81, 142 Indian Ocean, 5 Indonesia, 3, 44, 45, 102, 108, in, 113, 134, 135, 136, 138, 142, 143 Informal Composite Negotiating Text (1977),

3L47.94

Informal Composite Negotiating Text/Revision 1(1979), 31,47, 123 Informal Composite Negotiating Text/Revision 2(1980), 31, 135 Informal Single Negotiating Texts (1915), 31, 123 Interdepartmental Committee on Territorial Waters, 85-6 Interdepartmental Committee on the Law of the Sea (ICLOS), 4, 8, 14, 28, 60, 85-6, 88, 96, 167, 174; bargaining process, 75, 86-7, 93. *40, !52, I53-4J business groups, 128, 155; cabinet, 59, 86, 87, 152-3; Canadian delegation, 87-8, 93, 132; DEA dominance, 58, 156; membership, 67, 87, 93, 152-3, 156; objectives, 87; provinces, 147; USWA, 147; Working Group on Committee One, 88 Interdepartmental Working Group on the Transfer of Technology, 74 interest groups, 4, 16, 61, 94, 152-5, 169,171,

Index

173-4.197032 Inter-Governmental Maritime Consultative Organization, 35, 87 International Commission for Northwest Atlantic Fisheries, 35 international community, 5, 8, 20, 26, 71, 181 international conferences, 64. 177 international constraints, 4, 16, 159-69 International Court of Justice, 97 International Law Commission, 33 International Metal Workers Federation (Geneva), in international negotiations, 57, 89. See also UNCIOS m International Patent and Trade Mark Association, 129 international seabed area. See deep seabed International Seabed Authority (ISA), 9, 10, 12, 17, 28, 30, 36, 38, 162, 179, 183, i8sn2; common heritage of mankind, 55; compensatory financing, 85; decision-making procedures, 24; deep seabed mining legislation, 49, 162; financing, 13, 37, 39, 54-6, 145, 163; land-based producers, 40; Law of the Sea Convention, 180; parallel banking system, 41; powers, 5, 40; structure, 55; technology, 39; terms of contracts, 39, 40, 50, 56. See also council; enterprise international seabed regime, 5, 30, 34, 41, 67, 160 international straits, 5, 35 international trade, 67, 72, 81,96 International Tribunal, 116

investments, 7 Ireland, 50 iron, 7 ISA. See Council (ISA) Italy, 179, 180 Ivory Coast, 48, 134 Jackson, William, 69, 84 Jamieson, Don, 42, 59, 86, 101,107, I92n65 Japan, 3, 11, in, 139; Committee One issues, 38, 45> 47. 5°. J37. deep seabed mining legislation, 91; Law of the Sea Conventions, 52, 179; like-minded states, 180 Jewett, Pauline, 63 joint venture system (Canadian proposal), 24, 39, 99, 122, 146 Keating, Tom, 173 Kennecott Joint Venture, 73, 117, 118, 119, 120 Keyes, Bob, 113, 127, 129 Kirton, John, 162 Kissinger, Henry, 41, 56, 141, 160-2 Koh, Tommy, 50 Krasner, Stephen, 109 Kronmiller, Ted, 130 labour unions, 13, 15, 25, 106, 170-2 LacEdouard, 104 Lalonde, Marc, 101 land-based mining industry (Canadian), 4, 12, 13, 22, 24.25,33.37.42,44.53. 158, 170; comparative advantages, 26, 126, 136, importance, 19, 96, 98 land-based producers, 3,8, 11, 45, 46, 91; Canada's objectives, 12, 22, 27, 122; Committee One issues, 42, 43.44.53, 135-6, 181; deep seabed mining, 26, 70, 72-3; international markets, 42, 43, 44, 45, 46, 69, 108, Law of the

221 Sea Convention, 53; less developed countries, 10, 136 Land-based Producers' Group, 45, 84,91, 134-8, 164; internal cohesion, 45, !35-66 land-locked states, 36 Langevad, Eric, 42 Lapointe, Paul, 66, 67, 92 laterite deposits, 26, 108, "3. J35. !59 Latin America, 56, 135, 138, 178 Law of the Sea Convention, 8, 161, 178-9, 181; Canada, 12, 13, 20, 22, 24, 27, 28; comprehensive nature, 30, 32; consensus, 11; deep seabed mining legislation, 49; Group of 12 proposals, 51; 1982 vote, 4,5, 11,30,32,41,51-2, 162; Preparatory Commission, 52; ratification, 180; us review, 49. See also Draft Convention on the Law of the Sea, Informal Composite Negotiating Text; Informal Composite Negotiating Text/Revision i; Informal Composite Negotiating Text/Revision 2; Informal Single Negotiating Texts, Revised Single Negotiating Text Law of the Sea Conventions (1958), 30, 33 Laxer, James, 163 Le Blanc, Romeo, 42, 86 Lee, Edward, 74 Legal Operations Division, 65, 67, 68, 168; Arctic sovereignty, 65, 80; Canadian delegation, 91; Committee One issues, 77, 78, 85; evolution, 65, 67; ICLOS, 167; provinces, 65, 101, 102, 167. See also Department of External Affairs lawyers Legault, Leonard, 66, 67,

Index

87, 92, 101; cabinet, 88, 93; CBIIAC, 124, 181; Canadian delegation, 66, 93; ICLOS, 66; tactics, 88 Lepage, Paul, 109 less developed countries, 3, 7, 9, 10, n, 12, 13, 19, 24, 29, 32, 41, 181; common heritage of mankind, 30; deep seabed mining legislation, 49; ISA, 116, 160; land-based producers, 40, 159; Law of the Sea Convention, 37; parallel banking system, 41; participation in law of the sea negotiations, 29, 32; review of international seabed regime, 41; technology transfers, 51, 54; us review, 50 Liberal Party, 61, 101 Licencing Executive Society USA/Canada, 129-30, 171 Like-Minded States (Group of), 31, 50, 139-40, 179, 180 Lin, Soe, 83, 84 Lumley, Ed, 88-9 Lyon, Peyton, 177 Lyon, Stirling, 103, 104 MacDonald, Flora, 103 MacEachen, Allan, 62, 88, 120, 141 MacGuigan, Mark, 52, 89, 104 manganese, 5, 7 manganese nodules, 5, 6, 9, 10, 11, 25,39,44, 54, 114; production, 26, 69-70, 160 Manhattan, SS, u Manitoba, 13, 25, 26, 68, 97-8, 103, 105, 141, 153, 175-6; Australia, 103-4; Canadian delegation, 94, 104, 133; ICLOS, 94; interests, 98; mining industry, 96, 98, 103, Ontario, 104; production ceiling, 61, 84, 94,103,104,157; USWA, 103 Martel, Elie, 101

Marxism, 169, 170, 172 members of parliament, 63, 132, 133. See also House of Commons Metcalf, Senator Lee, 160 Mexico, 6 Meyer, Ray, 46, 142 middle industrialized states. See Group of 12 Miller, Frank, 100 Mine, Mill and Smelter Workers'Union, 106 Mining Association of Canada (MAC), 13, 103, 112, 121-2, 123, 125, 127, 131, 153, 157-8, 174, 183; cabinet, 173; Canadian delegation, 112, 119, 121, 123, 128, 131, 133, 134, 150,

155;

CBILAC,

129;

Committee One issues, 119, 122, 123, 125-6, 128, 173; DBA lawyers, 121, 127,

128,

I30-I; DEMR,

I27JDOF, 113; Group of 12, 158; ICLOS, 128; Law of the Sea Convention, 128-9; Ontario, 129; priorities, 122; tactics, 124, 127, 129, 170; us Mining Congress, 130 mining companies (Canadian), 15, 19, 20, 21, 23, 39. 54. 94. 96, 106; business groups, 112-3; Canadian delegation, 133, 150; competitive advantage, 99; deep seabed mining, 39; DEMR, 113; other Committee One issues, 83, 84-5; technology transfers, 81, 170, 173 minister of energy, mines and resources, 13, 58, 62, 86, 153, 157, 165, 167, 173 minister of finance, 88, 157, 165 minister of industry, trade and commerce, 88-9, 157, 165 minister of labour, 99 Ministry of State for

222 Science and Technology (MOSST), 4, 13, 18, 85, 94, 153-4, !83; business groups, 93, 95, 174; Canadian delegation, 75, 132-3, 150; Committee One issues, 76, 77, 78-9, 80, 81, 83, 141, 150, 165-6; commodities, 78, 81; deep seabed producers, 82; free enterprise system, 76, 78; GATT, 83; Group of 12, 158; ICLOS, 94; International Division, 60; international trade, 78, 81; involvement, 58, 64, 73, 74, 94, 165, 168; land-based producers, 78, 80; less developed countries, 75, 78; marine scientific research, 73, 74; ministerial support, 74, 86-7, 88, 89, 90, 93; priorities, 75-85; tactics, 165; taxation, 78; technology transfers, 73, 74, 75, 81-2; UNCTAD, 80, 150; Western industrialized states, 76-7, 78, 82 "Mirror Committee" report, 66,86 Mohide, Tom, 98-9, 101, 102, 104; delegation, 102; DEA lawyers, 102; DEMR, 69, 100, 102; production ceiling, 100, 102; us, 142 Mullin, James, 74, 75 municipal government, 13, 15, 25, 61, 63, 90, 94, 104-5, !33 Munro, Burt, 109, III National Energy Policy, 69 149 navigational rights, 5,8, 2 3. 32» 35. 81, I25, 158, 178,180 Needier, Alfred, 87 Netherlands, 50, 180 New Brunswick, 97 New Caledonia, 102, III, 114

Index

New Democratic Party, 98, 166-7, !69, 177 Nova Scotia, 97 101 Newfoundland, 97, 176 new international economic O'Brien, Keith, 118 Ocean Management Incororder, 9, 20, 32, 178 porated, 114-15, 117, 120 New Zealand, 50, 102, 140 nickel, 5, 24, 25, 113; inter- offshore resources, 22, 23, 68; revenue sharing, 36 national demand for Ontario, 13, 25, 26, 68, too, Canadian, 20, 21, 25, 26, 105, 141, 153, 193n9; 100; international Canadian delegation, 94, markets, 6, 12, 27, 35, 44, 46, 147; strategic 100, 102, 133, 134; DEA lawyers, 102; DEMR, 102, stockpiles, 43 176-7; ICLOS, 94; involvenickel mining industry ment, 97-8, 103, 175-6; (Canadian). See landManitoba, 104; mining based mining industry industry, 96, 98, 99, 103; Nickel Team (Canadian), Ministry of Intergovern69, 100, 142 mental Affairs, 99, 100, Nigeria, 48, 134 101; Ministry of Labour, Noranda Explorations 99, 101; Ministry of Limited, 120 Natural Resources, 69, 98, Noranda Mines Limited, 99, 101, 102-3, 176-7; 12, 27, 89, 112, 117-18, other Committee One 119, 121, 151, 174; CBIIAC, 125; Committee One issues, issues, 61, 98, 94, 100; Premier's Office, 102, 157, 39»5i.54.56,99, 115-16, 176; production ceiling, 122, 123, 125; deep seabed 61, 84, 94, 100, 102, 157, mining, 112, 113, 114, 176; production floor, 99, 115, 117, 120; deep seabed mining legislation, 116, 100, 102; publications, 102-3; us, 100; USWA, 110 120; DITC, 73; free enterOrganization for Economic prise system, 113; ICLOS, Co-operation and Devel117; Kennecott Joint opment, 67, 72, 80, 126, Venture, 99, 114-15; land139, 141, 161, 183 based producer, 112, 113, Organization of African 116-17; Law of the Sea Convention, 115, 117; Unity, 142 Organization of Petroleum MAC,112,116,117, 119, Exporting Countries, 127; priorities, 113, 115, 121; Standing Committee 159-60 Pacific Ocean, 5, 7 on External Affairs and National Defence, 112, 117 Panama, 122 system, 10, Nordlinger, Eric, 6 169 9 , 1 parallel 4 banking 9 41, 49, 88, 146, 161 North-South dichotomy, Pardo, Arvid, 5, 24, 30, 33, 10, 11,32,36,37, 38,39, 178 40,51,52, 54,55, S6, 136, parliament. See House of 145,151,159-61, 163, Commons 179, 183, 184 Parry Sound, 104 Northern Life, 104 Parti Quebecois, 59 Northern Miner, 94 party politics, 61, 63, 98 Norway, 50, 111 Pasho, David, 69, 143, Nossal, Kim, 16, 162,

223 185118; Canada-us nickel production ceiling, 46, 69, 102, 142 Patterson, Dave, 101, 107 Peeling, Gordon, 113, 150 Penner, Keith, 63 Pepin, Jean-Luc, 59 Percy, Senator, 130 Peru, 134 Philippines, 48, 102, 134, 135. 138 pollution (marine). See environment (marine) polymetallic sulphides, 7 Port Colbourne, 104, no Pratt, Cranford, 16, 172 preliminary investment protection, 50, 51, 54, 189^6; Canada, 51 Preparatory Commission, 8, 28, 55, 162, 179-80; Canada, 52; land-based producers, 55; membership, 34. 52, 55 prime minister, 62, 89, 101 Prime Minister's Office, 65 private enterprise, 5, 10, 27, 52, 55, 146,181 Privy Council Office, 90, 167 processing allowances, 44 production ceiling, 13, 24, 27, 28, 31, 36, 49, 183; calculations, 43, 45, 46, 47, 99-100, 108-9; Canada's position, 36, 37, 56, 164; group of experts, 45; Informal Composite Negotiating Text, 48; land-based producers, 42, 135, 166; Law of the Sea Convention, 53; origin, 41-42; study group, 45. See also Canadian nickel production ceiling; Engo nickel production ceiling; Group of 77 production floor, 31, 47, 172, 184; Canada, 48; deep seabed miners, 48; definition, 47-8; landbased producers, 48 production policies, 12, 50,

Index

64. See also antisubsidization clause; fair market access clause; production ceiling; production floor Progressive Conservative Party, 61, 98 Pross, Paul, 174 provinces, 14, 16, 65, 68, 90, 94, 96, 97, 104, 154-5; Canadian delegation, 97, 132, 133, 147, 176; Committee One, 61; ICLOS, 176; involvement, 159, 174-7, maritime, 97. See also British Columbia; Manitoba, New Brunswick; Newfoundland; Nova Scotia; Ontario; Quebec Provisional Understanding Regarding Deep Sea-Bed Matters, 180 Prudhomme, Emile, 106-7 Quebec, 59, 175 quotas, 44 Ratiner, Leigh, 41, 49 Reagan, Ronald, 49, 180 revenue-sharing, 36, 71, 97 review conference, 41, 50, 55; common heritage of mankind, 55; decision making, 55-6; deep seabed miners, 55; Group of 12, 50; less developed countries, 55 Revised Single Negotiating Text (1976), 31,44, 45.67, 93, 123, 164; production ceiling, 36, 42-5, 62, 73, 79, 80, 100, 104. See also Engo nickel production ceiling Reynolds Limited, 171 Richardson, Elliott, 46, 49, 101, 119 Riley, William Jr., 129, 130 Rio Tinto Zinc Corporation Limited (UK), 117, 119, 151 Roberts, John, 89, 120 Rodriquez, John, 63

safeguard clause, 48 salmon. See anadromous species Schultz, Richard, 167 scientific research (marine), 5,22,32,35,52,73 seabed. See deep seabed Seabed Committee, 29, 30, 33. 34, 36, 38, 68, 70, 92, 178; alignments, 35; Canada's interests, 36 Sea-Bed Disputes Chamber, 116 secretary of state for external affairs, 3, 13, 59, 62-3, 68, 86, 83, 101, 120, 127, 142, 148, 149, 153,156-7, 165, 167, 173. See also Gray; Jamieson; MacDonald; MacEachen; MacGuigan; Sharp secretary of state for fisheries, 59, 63 secretary of state for mines, 13, 59, 86, 88, 101, 105, 127, 153, 156, 165, 167, 173 secretary of state for science and technology, 89, 165 Sharp, Mitchell, 3, 175 Shebandowan, 110 Shenstone, Tom, 83 Sherritt Gordon Limited, 112,120-1, 122, 174 Singh, Sobharam, 104, 133 Smith, Stuart, 101 sovereignty, 32 Stairs, Denis, 171 Standing Committee on External Affairs and National Defence, 63 state centric approach, 19 state enterprises, 39, 41, 52, 54, 146. See also deep seabed miners Statham, Alfred, 118, 119, 120 statist approach, 16, 106, 169 Stewart, Dugal, 73 Stockholm Conference on the Environment, 87 subsidization, 3, 12, 20, 26, 44,55,83-4, 114, 115,

T24 135,159,161

Sudbury, 21, 25, 46, 104, no, 153; Canadian delegation, 104-5; mining industry, 59, 61, 98, 104, 105, 113, 120, 147, 157; Ontario, 101; production ceiling, 61, 101, 105; Regional Council, 104-5, no; USWA, 104; votes, 61; Chamber of Commerce, 105 sulphidic deposits, 26, 44, 108, 114, 135, 159 Swabey, Alan, 95, 124, 125, 129-30, 171 Sweden, 50, in Switzerland, 50 Szablowski, George, 167 tariffs, 44 taxation, 44, 71, 98, 99, 122, 161 technology (marine), 4, 6, 7, 13, 24, 29; Canada, 3, 21,34,54-6,74,77 technology transfers, 8, 12, 13, 15, 20, 23, 28, 73, 77, 81, 82, 154, 161-3; Brazil clause, 81, 89; Canadian delegation, 37, 55; Enterprise, 51, 81; Group of 12, 50; Law of the Sea Convention, 52; less developed countries, 51, 54, 81; UNCTAD, 70, 81; us, 50; voluntary codes, 20 territorial sea, 5, 8, 22, 31, 35, 36, 52, 180-1 Thompson, Manitoba, 21, 25, III0; mining industry, 61, 98, 104, 105, 113; USWA, 104; votes, 61 Torrey Canyon, SS, 30 Towards a Nickel Policy for the Province of Ontario (1977), 102 Trudeau, Pierre, 65, 101, 104, 141-2, 175; government, 59, 69,159 UNCLOS m. See United

Index

procedures, 8,II, 17, 28, Nations Conference on the 33, 49, 66, 178; Drafting Law of the Sea III Committee, 146; Law of Union of Soviet Socialist the Sea Convention, 30; Republics (USSR): Commandate, 4-5, 30, 32, 34-5, mittee One issues, 10, 52, 181; membership, 26, 32; 114; common heritage of mankind, 178; delegation, negotiating texts, 33; precedent-setting, 8, 76; 11; Law of the Sea Consession I, 30, 31; session II, vention, 51-2; like-minded 29, 31, 63; session m, 31; states, 180; navigational session rv, 31, 40; session rights, 29-30, 178; terriv, 41; session vi, 31; session torial sea, 29 vii, 31, 46; session vm, 31; United Kingdom (UK), 5, session ix; 31; session x, n, 17, 19, 88, 119; coastal 31; session xi, 31; study state, 36; Committee One group on nickel production issues, 36, 47, 50, 141-2; deep seabed mining legisceiling, 42; structure, 8. lation, 34, 91; delegation, See also Committee One; Committee Two, Com137, 151; land based producers, 40; Law of the Sea mittee Three Convention, 179; likeUnited Nations Conference minded states, 139, 179-80; on Trade and Development (UNCTAD), 54, 55, 62, 72, Preparatory Commission, 179 74, 80, 99, 124, 125, 126, 139, 160-2, 184 United Mine Workers, 107 United States, 3, n, 19, 50, United Nations, 3, 115; 68, 72, 73, 88; coastal documents, 16; General states, 36; common heritage Assembly, 5, 30, 32, 33-4, 160; secretary general, 163; of mankind, 178; comproTrade and Development mise proposals (1976), Board, 141. See also Sea40-1, 160; concessions, 161-2, 179; congress, 171; bed Committee deep seabed mining, 9, 158, United Nations Conference on the International Code 161; deep seabed mining legislation, 34, 46, 49, 91, of Conduct on the Transfer 120, 150, 160, 163, 171; of Technology, 74 delegation, 17, 40, 41, 45, United Nations Conference 49, 151; Department of on the Law of the Sea i (UNCLOS i) (1958), 29, 30, Defence, 158; Department of Interior, 158; Group of 32, 33, 35. See also Law of the Sea Conventions (1958) 12, 50, 51; land-based producers, 40; less developed United Nations Conference countries, 160; like-minded on the Law of the Sea II states, 50, 139, 179-80; (UNCLOSII) (1960), 29, 30, navigational rights, 29-30, 32,33.35 178; other Committee One United Nations Conference issues, 10, 13, 36, 38, 41, on the Law of the Sea in (UNCLOSIII), 3-7, 184; 42,45,47,49,50,51,53, alignments, 32; assessment, 54, 91, 161; policy process, 166; Preparatory Commis177-81; contrasts with sion, 179; production ceilUNCIOS I and UNCLOS II, ing, 13,31,36,42,45,46, 30-3; decision-making

225 47, 50, 53. 136, 137, 142; refusal to sign Law of the Sea Convention, 5, 51, 95, 162-3, I 79> 180; review of Law of the Sea Convention (1981), 31, 32,49, 50, 82, 91, 95, 130, 163; Senate Committee on Foreign Relations, 120, 129-30; State Department, 129; technical advisors, 45-6; technology transfers, 50, 125; territorial sea, 29 United Steelworkers of America (USWA), 90, 103, 105, 106, 107, in, 153-4; business groups, 109; cabinet, 173; Canadian delegation, 46, 94, 107, 109, 133, 147, 184; DBA lawyers, 107, 109, no; DEMR, 109; ICLOS, 94, 107, 109-10; land-based producers, 158; mining com-

Index

panies, 109, no-ii, 170; municipal governments, 110; other Committee One issues, 101, 107-8, 109; production ceiling, 46, 61, 84, 94, 108-9, iu-12, 157, 172-3, 176; production floor, 109, 110; provinces, 99, 100, 102, 109, no, 170, 176; resources, 170, 174; secretary of state for external affairs, 101; tactics, 109-11, 155, 157, 170 us Mining Congress, 130 Varadhan, V.K.S., 42 Venezuela, 134 Vietnam War, 43 Webb, Michael, 169-70 Weidman, Howard, 99 Western Europe, 12, 38, 72 Western industrialized states, 3, 5, 10, ii, 20, 52, 160-1,

181; Committee One issues, 37, 39, 40, 42, 45, 54, 82, 83, 146, 159, 161;landbased producers, 40 White Paper on Federalism and International Relations (1968), 96, 176 Whitney, George, 130 Wilson, Seymour, 174 Wolfers, Arnold, 19, 20 Working Group of 21, 8 world population, 6, 177 Zacher, Mark, 169-70 Zaire, 3, 25, 36, 48, 136, 137; land-based producer, 36, 84,119, 134-5,138 Zambia, 17, 36, 48, 136, 137, 138; land-based producer, 36, 84, 134,135, 138 Zimbabwe, 3, 84, 136, 137; land-based producer, 84, i34. 135.138 zinc, 7