U.S. can mine the deep seabed without ratifying UNCLOS
According to U.S. foreign relations law, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining.This position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980.
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A study by Christopher Garrison indicates that the overwhelming majority of seabed mining activities have taken place within the 200 nm limit, which is subject to coastal state rather than ISA jurisdiction and regulation.9 Even the ISA has acknowledged that “no sustained operations have taken place for the commercial recovery of solid minerals in water depths greater than 200 metres.”10 ISA fact sheets also indicate that the best potential for cobalt-rich crust mining is located in the EEZs of the United States (Johnston Island and Hawaii), the Marshall Islands and the Federated States of Micronesia.11 Similarly, the largest known deposit of polymetallic sulphides is located in the Red Sea within the EEZ of the coastal states and the first commercial mining of polymetallic sulphides is scheduled to occur within the EEZs of Papua New Guinea, Fiji and Tonga in 2010.12 None of these potential mining areas are subject to regulation or control by the ISA.
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The U.S. legal position set forth in 1983 on deep seabed mining remains the same today. According to the Restatement of the Law, Third, of the Foreign Relations Law of the United States, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining. As related by the Restatement, “like the fish of the high seas the minerals of the deep sea-bed are open to anyone to take.”
The U.S. position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980, which Congress enacted two years before the adoption of UNCLOS to provide a framework for U.S. corporations to conduct deep seabed mining until such time as the United States joins an acceptable convention on the law of the sea. The DSHMRA states the U.S. position on the legality of deep seabed mining as follows:
[I]t is the legal opinion of the United States that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reasonable regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law.
In sum, the long-held position of the United States, both domestically and internationally, is that U.S. citizens and corporations have the right to explore and exploit the deep seabed regardless of whether or not the United States is a party to UNCLOS.
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U.S. companies may operate through foreign subsidiaries. If a U.S. company insists on engaging in mining only under the convention’s auspices despite the inequities associated with the UNCLOS regime, it may do so. Specifically, if the United States continues to remain a non-member of UNCLOS, a U.S. seabed mining company may incorporate a subsidiary entity in a country that is party to the convention. In this manner, the U.S. entity’s subsidiary may apply for an exploration contract under the sponsorship of the foreign country and engage in seabed mining through the convention’s regime.
The practice of U.S. companies partnering with foreign entities in seabed mining ventures has precedent. As previously noted, all four U.S. private-sector mining consortia originally included foreign partners or ownership interests: KCON had Canadian, Japanese, and british interests; OmA had belgian and Italian interests; OmI had Canadian, Japanese, and German interests; and OmCO had Dutch interests.90
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In sum, the United States has agreements with almost every nation that the Authority has licensed to explore the CCZ (belgium, China, France, Germany, Japan, russia, and the United Kingdom), all of which remain in force and effect at the present day.29 Those nations have made a commitment to the United States that they will not interfere with or infringe on the claims by the United States or its companies in the CCZ. None of the nations has denounced or withdrawn from the agreements or has otherwise indicated that it does not respect its international commitments to recognize U.S. claims in the CCZ.
Among the nations that have sponsored claimants in the CCZ, only four—Nauru, Kiribati, South Korea, and Tonga—are not party to a seabed agreement with the United States. The U.S. should remedy this by nego- tiating memoranda of understanding with those nations along the same lines as the 1991 agreements with China and the Soviet Union. Although the claims of Nauru, Kiribati, South Korea, and Tonga do not overlap the areas currently claimed by the United States, the agreements would establish a bilateral commitment from each of those nations not to infringe on U.S. claims in the CCZ and to cooperate in the event of a dispute.
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Indeed, this was the U.S. position prior to UNCLOS III. Years earlier, Congress made clear the U.S. position on the legality of deep seabed mining in the Deep Seabed Hard Mineral Resources Act of 1980 (DSHMRA):
[I]t is the legal opinion of the United States that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reason- able regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law.10
The U.S. position set forth in 1980 in DSHMRA and again in 1983 at UNCLOS III remains the same today. According to the Restatement of the Law, Third, of the Foreign Relations Law of the United States, U.S. citizens and corporations may engage in seabed mining regardless of whether the U.S. accedes to UNCLOS, provided that they conduct such mining without claiming sovereignty over any part of the seabed and as long as the mining activities are exercised with due regard to the rights of other nations engaged in mining.11 As related by the Restatement, “like the fish of the high seas the minerals of the deep sea-bed are open to anyone to take.”12
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However, most businessmen understand that it makes little difference whether or not, say, Congo, recognizes their right to harvest manganese nodules in the Pacific. Indeed, given the dynamics of seabed mining, it probably doesn’t even matter if other industrialized nations with firms capable of mining the ocean floor recognize one’s claim. In all but the most unusual cases, the seabed’s irregular geography and surplus of nodules make “poaching” uneconomical—it would make more sense to develop a new site than to attempt to overrun someone else’s.
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Groves said the Deep Seabed Hard Mineral Resources Act (DSHMRA) of 1980 set forth the mechanism for com- panies like Lockheed Martin to obtain its licenses to engage in deep seabed mining and to renew their claims in the eastern Pacific Ocean. These licenses were obtained by Lockheed nearly 40 years ago and are known as legacy claims that pre-date the Law of the Sea, he maintains.
Under U.S. and international law, Groves said Lockheed Martin has every right and ability to engage in deep seabed mining.
“These [legacy claims] go back to pre-Law of the Sea Treaty. They had to be specifically written into the annexes of the Treaty, and so we [the United States] have those claims,” Groves said, underscoring the argument that DSHMRA already covers rights and titles over claims in international waters.
“Lockheed Martin has just decided at this point in time that it is not economically feasible for them to do it. Now what they do, and what’s their right as a company to do, is lobby the Senate, making a claim. This is not a fact, this is not set in granite, this is a claim that they need the treaty in order to get the necessary certainty to engage in the expensive process of deep seabed mining.”
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Still, treaty supporters point out, the LOST, having gained more than the necessary 60 ratifications from UN member nations, will go into effect in November 1994 irrespective of Washington's ratification decision. However, nations cannot be held to surrender their rights because other states have ratified a treaty. Put bluntly, it matters little whether or not Djibouti, Fiji, or Zambia approves of American mining consortia operating in the Pacific. An ISA without any industrialized states as members would be about as effective as the "international regime" that is supposed to be established under the UN Moon Treaty, which--I am not making this up, to quote humorist Dave Barry--formally took effect 10 years ago in July.13
A decentralized and relatively informal system, perhaps with a small international office, that provided for mutual recognition of mine sites and arbitration of conflicts would offer adequate security of tenure for mining companies. In fact, the United States and the Europeans implemented that type of strategy when they rejected the LOST.14 Other nations, particularly those like China, India, and South Korea, which have indicated an interest in seabed mining, could be invited to join such a system as well. That approach would operate with minimal bureaucracy and cost and would be confined to essentials--most important, developing a stable investment regime.