U.S. would be obligated to transfer technology under UNCLOS
Although the 1994 treaty modifications have toned down some of the most direct mandatory technology transfer requirements, the treaty still places at risk some very sensitive, and militarily useful, technology which may readily be misused by the navies of ocean mining states. These include: underwater mapping and bathymetry systems, reflection and refraction seismology, magnetic detection technology, optical imaging, remotely operated vehicles, submersible vehicles, deep salvage technology, active and passive military acoustic systems, classified bathymetric and geophysical data, and undersea robots and manipulators.
There is a common misperception that existing national security export control mechanisms will act as a safety net to ensure that the treaty will not serve as a conduit for militarily critical technology to be exported to potential adversaries. Unfortunately, the "stovepiped" nature of many government policy actions masks the fact that the Clinton administration has virtually eviscerated the export control process within the U.S. government and has dismantled the international regulatory mechanism as well (Leitner, 1995). There is no longer a reliable safety net to prevent foreign military or intelligence services from using the treaty as a cover to acquire highly strategic state-of-the-art technology that may be used to enhance power projection or regional destabilization activities.
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Finally, there is technology transfer, one of the most odious redistributionist clauses of the original convention. The mandatory requirement has been discarded, replaced by a duty of sponsoring states to facilitate the acquisition of mining technology "if the Enterprise or developing States are unable to obtain" equipment commercially.29 Yet the Enterprise and developing states would find themselves unable to purchase machinery only if they were unwilling to pay the market price or were perceived as being unable to preserve trade secrets. The clause might be interpreted to mean that industrialized states, and private miners, whose "cooperation" is to be "ensured" by their respective govern- ments, are then responsible for subsidizing the Enterprise's acquisition of technology.30 Presumably, the United States and its allies could block such a proposal in the Council, but again, it is hard to predict future legislative dynamics and potential logrolling in an obscure UN body.
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The United States is the nation with the most to lose – from an economic and national security point of view – from the sort of obligatory technology transfer provisions contained in the Law of the Sea Treaty, including those that would be binding even if the 1994 Agreement has effect.
America has long imposed unilateral export control restrictions precisely for the purpose of preventing transfers that will result in harm to this country. U.S. accession to LOST would require a substantial liberalization, if not wholesale scrapping, of such important self-defense measures.
Actual or potential competitors/adversaries like China, Russia, state-sponsors of terror and even European “allies” understand full well what a technology windfall U.S. adherence to LOST could represent. It would be irresponsible, not to say foolish in the extreme, to believe that none of these parties will take advantage of the opportunity to reap that windfall, to our very considerable detriment.
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The Law of the Sea Treaty requires extensive transfers of data and technology – at least some of which could be highly detrimental to America’s industrial competitiveness (including in fields far removed from maritime-related activities) and to the national security. For example:
• LOST’s Article 266 mandates that states “cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions” and “endeavor to foster favorable economic and legal conditions for the transfer of marine technology.”
• Article 268 requires states to “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”
• Article 269 calls for parties to “establish programs of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance.” (Emphasis added.)
• Compulsory dispute settlement mechanisms afford further opportunities to obtain sensitive technology and information. Article 6 of Annex VII requires that parties to a dispute “facilitate the work of the arbitral tribunal and...provide it with all relevant documents, facilities and information.” It can therefore be expected that countries may bring the United States or its businesses before arbitral tribunals – without expectation of a favorable result, solely for the purpose of obtaining sensitive technology information.
The object of these provisions is consistent with the socialist, redistributionist and one-world vision that animated many of LOST’s negotiators: No matter what the costs may be to U.S. security and business interests, the fruits of marine research, exploration and exploitation of “the Area” – the waters covered by the Treaty – and the associated technology must be shared with developing nations, land-locked states and “geographically challenged” countries.
In 1976 GAO was requested by several Committee Chairmen to independently report on the status of negotiations as they were deeply distrustful of the official delegation reports authored by the State Department. As a result, I attended many of the negotiating sessions in New York and Geneva as an observer attached to the US delegation. I joined the U.S. delegation in 1977 and reported regularly to Congress on the state of negotiations through 1982. I was present in New York when the Reagan Administration’s good faith attempt to make the Treaty acceptable was roundly rejected by a coalition of Developing and Communist nations.
Since that time I have closely tracked the accession process and the development of the International Seabed Authority. Having long since left the General Accounting Office and transferred to the Department of Defense I became deeply involved in the Export Licensing process. In this capacity I was assigned a case whereby the People’s Republic of China was using their status as a so-called “pioneer investor” in ocean mining to justify the acquisition of strategic/export-controlled technology under the guise of prospecting for manganese nodules in the mid-Pacific. Unfortunately, the level of technology they were attempting to acquire greatly exceeded the level of capability that either the United States or our industrialized allied used in undertaking such work. The quality of the side-scanning sonar, deep-ocean bathymetric equipment, cameras, lights, remotely operated vehicles, and associated submersible technology provided them the capability to locate, reach, and destroy, or salvage early-warning and intelligence sensors vital to our national security. Additionally, such technology also imparted an offensive capability to our chief potential military adversary by enabling them to map any portion of the ocean or continental shelves to determine submarine routing schemes or underwater bastions where missile-launching or intelligence gathering submarines may operate undetected just off the U.S. coast.
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Much more ambitious schemes of re-distribution and technology-transfer were originally intended, but the unfortunate fact that no companies actually did any mining reduced the ambitions of the treaty- writers. Even so, as Rabkin points out, the 1994 revision still has commitments to technology-transfer—and the power to make it a condition of granting mining licenses to signatory countries. The treaty also contains large and vague provisions for protecting the marine and littoral en- vironments. The structure of UNCLOS means that bodies it has created, such as the ISA and ITLOS, are now in effect independent international agencies accountable only to each other. They enjoy both the taxing power in light disguise and the ability to expand the reach of their regulatory activities. And they have a claque of exter- nal supporters in nation-states that are con- tent to have their own sovereignty limited provided that America’s sovereignty is curbed too—even without Washington’s consent.
Even though the U.S. has not ratified UNCLOS, the Chinese government exploited its technology-transfer provisions to obtain advanced sonar technology from U.S. companies. Britain has joined UNCLOS since Thatcher, with the result that the Irish government sought to compel Britain to close down a nuclear reactor on British soil on the grounds that it was adversely impacting the maritime environment and so violating the environmental features of UNCLOS. And if the U.S. actually does sign on, that will add federal judges to the long list of people seeking to exploit the treaty to constrain and direct America’s elected policymakers.
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The problem of intellectual property protections was supposedly solved in the 1994 agreement, but it is vague, and the Authority’s latent powers remain to make it a continuing issue. Sponsoring states are still required to facilitate technology transfer “if the Enterprise or developing states are unable to obtain” the advanced equipment commercially. Thus, if a contractor develops a breakthrough mining technology, it will be compelled to sell it commercially to rivals or face the prospect of giving it away to the Enterprise (a direct competitor) and developing states. Neither of these options will be attractive to an entrepreneurial company, thereby further deterring investment in deep sea mining Research and Development. (Defense technology transfers are also a concern, but beyond the scope of this study.
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Further, this approach carries an immediate risk to U.S. national security. Allegedly to ensure that the benefits of deep sea mining are properly shared, UNCLOS requires all states to “cooperate in promoting the transfer of technology and scientific knowledge” relevant to exploration and recovery activities in the deep seas.17 The 1994 supplementary agreement endorses these provisions, qualifying them only with vague assurances that technology transfer should be conducted on “fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights.”18 It remains to be seen whether the Authority will assert claims to impose technology transfers in this field. It could do so by making such transfers a condition for approving permits for exploration or recovery by Western firms, since all such activity requires approval of the Authority.19 Yet even without direct demands from the Authority, the Chinese government, by invoking these provisions, managed to obtain microbathymetry equipment and advanced sonar technology from American companies in the late 1990s. China claimed to be interested in prospecting for minerals beneath the deep seas. Pentagon officials warned against sharing this technology with China, given its potential application to anti-submarine warfare. But other officials in the Clinton Administration insisted that the United States, having signed UNCLOS—even if not yet having ratified it—must honor UNCLOS obligations on technology sharing. Future administrations may be more vigilant, but the Authority may, in the future, be more insistent. That is the logic of a treaty that makes mining by firms in one country contingent on the approval of the governments in other countries.
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Nevertheless, operations might eventually become economically feasible as technologies evolve and market conditions change. Seabed mining is in some senses a distant cousin of the undersea oil exploration that is already occurring in shallower ocean waters. But such developments are unlikely to go on with the Law of the Seat Treaty in its current form, and it may even threaten innovations to harvest resources such as oil from deeper ocean sources. As noted previously, the LOST requires sharing the revenues of oil drawn from the Outer Continental Shelf from 200 or more nautical miles beyond U.S. shores. Seven percent of revenues is a significant levy, heavy enough to discourage more costly or risky exploration and production. Today, it is hard to imagine any entrepreneur investing capital sufficient to create a viable deep seabed mining operation. The underwater environment is forbidding, in ways potentially as challenging as space. The great depths, incredible pressure, and uneven seabed make the creation of a workable, let alone an economical, mining operation extremely difficult. But absent intrusive regulation, entrepreneurs have accomplished the seemingly impossible before.
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At issue is not only technology useful for seabed mining. Dual-use technologies with military applications, for instance, might also fall under ISA requirements. Peter Leitner, a Department of Defense adviser, points out that those technologies might include “underwater mapping and bathymetry systems, reflection and refraction seismology, magnetic detection technology, optical imaging, remotely operated vehicles, submersible vehicles, deep salvage technology, active and passive military acoustic systems, classified bathymetric and geophysical data, and undersea robots and manipulators.”42 Acquisition of those and other technologies could substantially enhance the undersea military activities of potential rivals, most notably China, which already has purchased some mining-capable technologies from U.S. concerns. The justification for granting U.S. government approval for past transfers to China, explains Leitner, was Beijing’s status as a miner under the LOST.43