The 1994 Agreement explicitly dealt with and resolved concerns U.S. had with ratifying UNCLOS
In 1994, the U.S. and other developed nations lobbied and won a number of significant concessions and amendments to UNCLOS that addressed the concerns that previous administrations had with the treaty, including provisions over tech transfer and resource sharing.
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U.S. Technological Advantage. It is true that the 1982 form of the convention mandated private technology transfer detrimental to U.S. national security and economic interests. That was one of the factors specifically cited when President Reagan rejected the convention. Article 144 of the convention does encourage technology transfer, calls for parties to “cooperate in promoting the transfer of technology and scientific knowledge,” and remains in force following the adoption of the 1994 agreement but does not mandate technology transfer. Such transfer, mandated by Annex III Article 5 of the convention, was eliminated by section 5 of the annex to the 1994 agreement. Additional protection against national security damage through technology transfer is provided by Article 302 of the convention: “[N]othing in this Convention shall be deemed to require a State Party, in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.”
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[MYTH]: The 1994 Agreement does not even pretend to amend the Convention; it merely establishes controlling interpretive provisions.21 This is nonsensical. The Convention could only have been formally “amended” if it had already entered into force. The 1994 Agreement was negotiated separately to ensure that the Convention did not enter into force with Part XI in its flawed state. The 1994 Agreement made explicit, legally binding changes to the Convention and has the same legal effect as if it were an amendment to the instrument itself.22
A letter signed by all living former legal advisers to the U.S. Department of State, representing both Republican and Democratic administrations, confirms the legally binding nature of the changes to the Convention effected by the 1994 Agreement. Their letter states, “The Reagan Administration’s objection to the LOS Convention, as expressed in 1982 and 1983, was limited to the deep seabed mining regime. The 1994 Implementing Agreement that revised this regime, in our opinion, satisfactorily resolved that objection and has binding legal effect in its modification of the LOS Convention.”23
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[MYTH]: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining.24 Not true—in fact, each objection has been addressed. Among other things, the 1994 Agreement:
- Provides for access by American industry to deep seabed minerals on the basis of nondiscriminatory and reasonable terms and conditions.25
- Overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires two-thirds majorities that will enable the United States to protect its interests by putting together small blocking minorities.26
- Restructures the regime to comport with free market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.27
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MYTH: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining. Each objection has been addressed. Among other things, the 1994 Agreement:
- provides for access by U.S. industry to deep seabed minerals on the basis
- of non-discriminatory and reasonable terms and conditions;
- overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires supermajorities that will enable us to protect our interests by putting together small blocking minorities;
- restructures the regime to comport with free-market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.
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The United States has not ratified UNCLOS because it initially objected to part XI of the treaty, as did many other developed nations.110 The objections to part XI were based on economic and security concerns.111 Part XI recognized the region of seabed and ocean floor beyond the jurisdiction of any state to be the common heritage of humankind.112 Part XI, therefore, requires states to share the financial benefits113 from activities within the region as well as the related technology.114 ￼ ￼ In response to the objections to these provisions, the U.N. General Assembly adopted a resolution to encourage the United States and other objecting states to ratify UNCLOS.115 This resolution, known as the Agreement Relating to the Implementation of Part XI of the U.N. Convention on the Law of the Sea of 10 December 1982, allows countries to ratify UNCLOS without being bound to part XI.116 Given that the United States may ratify UNCLOS without part XI, the benefits to the development of offshore wind power are one of the many reasons for the United States to ratify UNCLOS.117
Myth: President Reagan thought the treaty was irremediably defective.
Reality: As explained above, President Reagan identified only certain deep seabed mining provisions of the Convention as flawed. His 1983 Ocean Policy Statement demonstrates that he embraced the non-deep-seabed provisions and established them as19 official U.S. policy. The 1994 Agreement overcomes each of the objections to the deep seabed mining provisions identified by President Reagan. As President Reagan’s Secretary of State, George P. Shultz, noted in his recent letter to Senator Lugar, “It surprises me to learn that opponents of the treaty are invoking President Reagan’s name, arguing that he would have opposed ratification despite having succeeded on the deep sea-bed issue. During his administration, with full clearance and support from President Reagan, we made it very clear that we would support ratification if our position on the sea-bed issue were accepted."
The changes set forth in the 1994 Agreement meet our goal of guaranteed access by U.S. industry to deep seabed minerals on the basis of reasonable terms and conditions. The Agreement overhauls the decision making procedures of Part XI to accord the United States, and others with major economic interests at stake, decisive influence over future decisions on possible deep seabed mining. The United States is guaranteed a seat on the critical decision-making body; no substantive obligation can be imposed on the United States, and no amendment can be adopted, without its consent.
The Agreement restructures the deep seabed mining regime along free-market principles. It scales back the structure of the organization to administer the mining regime and links the activation and operation of institutions to the actual development of concrete interest in seabed mining. The International Seabed Authority has no regulatory role other than administering the mining regime, and no ability to levy taxes.
A future decision, which the United States and other investors could block, is required before the organization's potential operating arm (the Enterprise) may be activated, and any activities on its part are subject to the same Convention requirements as other commercial enterprises. States have no obligation to finance the Enterprise, and subsidies inconsistent with GATT/WTO are prohibited. Of particular importance, the Agreement eliminates all requirements for mandatory transfer of technology and production controls that were contained in the original version of Part XI.
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Ken Adelman, an active member of the Reagan Administration’s efforts to persuade allies that they should not support the Convention in 1982, now supports ratification, explaining that the changes made through the Part XI Agreement have responded properly to the concerns they had raised in the early 1980s:
Scraped away are virtually all the barnacles we denounced during our 1982 ‘‘scuttle diplomacy.’’ There’s no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation. Indeed, the U.S. gets a permanent seat on the decision-making body, and thus has veto power. There’s no bar to future qualified mining firms, and no gigantic LOS institution for wannabe bureaucrats.
The seabed mining regime reflects free-market principles. It offers compa- nies the legal certainty needed for large-scale, long-term investments; protects existing claims of U.S. firms; and reinforces international law on territorial waterways. It locks in U.S. offshore economic rights as it expands our rights over resources in a 200-mile exclusive economic zone, 200-mile continental shelf, and in a shelf beyond 200 miles off Alaska.
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Perhaps the most significant change for the United States concerned decision-making within the International Seabed Authority. Article 161 of the Convention established a sophisticated decision-making procedure calling for different levels of enhanced majorities depending on the type of decision being made. Section 3 of the Part XI Agreement restructured this procedure by establishing a system of ‘‘chambered voting’’ within the Seabed Authority’s governing Council, to protect minority interests while at the same time allowing majority rule under a one-nation one-vote system. This approach was originally advocated by the Nixon Administration in 1970 when it outlined a system of decision-making for the body that eventually became the International Seabed Authority.
As modified in 1994, the Council, which is the main decision-making body of the International Seabed Authority, now consists of 35 members and has four distinct ‘‘chambers’’ of nations representing different interest groups. One chamber consists of four of the nations with the world’s largest economies, with a specific seat allocated to the United States (if it ratifies the Convention) and one reserved for an Eastern European nation. The second chamber consists of four of the nations that have made the largest investments in deep seabed mining. The third chamber includes four of the nations that are net exporters of the minerals to be mined from the sea floor, including at least two developing countries that rely heavily on the income from these minerals. And the fourth chamber consists of all the other developing nations that are elected to the Council. All questions of substance must be adopted by a two-thirds majority of the entire Council and cannot be opposed by a majority in any of the chambers. In other words, each chamber can veto any decision and block action. Certain key decisions can be made only if there is ‘‘consensus’’ of the entire Council.
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Eventually a compromise was formed that, understandably, recognized certain political and economic realities by giving more power to the wealthier nations and securing the rights of private and intellectual property over redistribution. The United States and Russia were given permanent seats on the Council without being specifically named.
An amendment to Article 161 of the Convention under Section Three of the Agreement’s Annex facilitates this permanent seat without actually naming the United States as its occupant: “The Council shall consist of . . . the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product.” Russia, another industrialized State, is virtually guaranteed a seat on the Council as well, by the requirement that chamber (a) include the “State from the Eastern European region having the largest economy in that region in terms of gross domestic product.”104
A Finance Committee was created, consisting of the five largest contributors to the ISA budget, which would effectively give these nations veto power over any of the Councils decisions.105 The Committee would remain in effect until the ISA became “cost- effective.”106 And a consensus of the Committee was required to approve “any decision by the Council or Assembly with budgetary implications.”107
But most importantly, the teeth of the Enterprise were effectively removed. The changes to the treaty in Annex III of UNCLOS regarding the rules of prospecting, exploration, and exploitation completely remove any obligation to freely share information or technology with the Enterprise.
“[Annex III] removes the requirement that parties contracting with the Authority agree to make methods and technology available to the Authority. The Agreement instead provides that the Authority may request cooperation from contracting parties.”108 It only requires it share those willingly, perhaps at a fair market price. “The Agreement also makes clear that contractors entering into joint venture agreements with the Enterprise are under no obligation to finance any part of the Enterprise’s mining operation.”109
With these changes. UNCLOS better reflects the political and economic realities of today’s world. Although these compromises might have put most of the ISA’s power in the hands of the developed world, they have also created an agreement the whole world can live with.