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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The argument that perhaps the renegotiation of PartXI won’t be binding after all and that we will be stuck with the old Part XI. This argument, of course, is flatly at odds with Article 2 of the renegotiation agreement which provides “[i]n the event of any inconsistency between this Agreement and Part XI, the provisions of this Agreement shall prevail.” It is at odds with the experience of the United States from 1994 through 1998 when we participated in the Authority on a provisional basis. It is at odds with the practice of the International Seabed Authority toward nations which had adhered to the Law of the Sea Convention before the renegotiation in treating them as fully bound by the renegotiation agreement. It is further at odds with the practice of the Authority in establishing a chambered voting system, a Finance Committee, and mining contracts, all of which are based on the renegotiation agreement. And it is at odds with the official Compendium of Basic Documents: The Law of the Sea published in 2001 by the Seabed Authority that not only has an extensive section rewriting Part XI to fully take account of the renegotiation, but which begins this section by noting: “[i]n the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement shall prevail.”20 To my knowledge, not a single nation in the world has advanced this argument asserted by critics. More importantly, on an issue of such importance, the United States would have not only the legal right to leave the Convention, but given our insistence on the renegotiation we would be expected to exercise our denunciation right under Article 317, should a serious effort be made to set aside the renegotiation of Part XI. This argument, then, simply throws up another horrible without noting that the alternative recommended, not moving forward with adherence, will immediately have continuing substantial costs for the United States, which, unlike the imagined horrible, are neither contingent nor imaginary;
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In 1994, more than 100 nations adopted a set of rules governing deep seabed mining. The 1994 agreement applies free market principles to deep seabed mining, establishing a mechanism for vesting title in minerals in the entity that recovers them from the ocean floor. The agreement establishes an International Seabed Authority (ISA) with responsibility for supervising this process. The ISA is an independent international organization— not a part of the United Nations.
It is governed by a Council (with principal executive authority) and an Assembly (which gives final approval to regulations and budgets). As a party to the Convention, the United States would be a permanent member of the Council and have the ability, under relevant voting rules, to block most substantive decisions of the Authority, including any decisions with financial or budgetary implications and any decisions to adopt rules, regulations, or procedures relating to the deep seabed mining regime.
The 1994 agreement also recognized the longstanding view that the deep ocean floor is part of the global commons and beyond the reach of national jurisdiction. The agreement addresses in full all concerns identified by President Reagan a decade earlier. Technology transfer requirements—a principal objection in 1982—were deleted from the agreement.
The 1994 agreement is a legally binding modification of Part XI the Law of the Sea Convention.
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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.”