U.S. Accession to the Law of the Sea Convention
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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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The Law of the Sea Convention allows countries to claim a continental shelf beyond their 200-nautical-mile EEZ, to a line 350 nautical miles from their coastal baselines, if they can establish that their continental shelf meets the complicated formula found in Article 76. This provision may be of substantial importance in the Arctic, now that the ice in that region is breaking up, as exemplified by Russia’s planting of a flag on the sea floor of the North Pole on August 2, 2007. Russia was not claiming the North Pole, but was exploring the seabed to see whether it could justify a claim to an extended continental shelf under Article 76. The United States may also be able to make an extended continental shelf claim in the Arctic region, perhaps claiming ‘‘more than 200,000 square miles of additional undersea territories,’’41 but its ability to make such a claim credibly will be substantially weakened if it remains outside the Law of the Sea Convention.42
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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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The advantages of U.S. ratification are clear. The United States would be able to invoke clear rules to support its claims to navigational freedoms.6 It would be able to rely on the text of the Convention to support its claims to an extended continental shelf in the Western Gap area of the Gulf of Mexico7 and in the Arctic.8 It would be able to utilize the principles and institutions of the Convention to work with other nations to protect the marine environment.9 It would be able to utilize the sophisticated and flexible dispute-resolution procedures established by the Convention. It would be able to put a U.S. ocean law expert on the International Tribunal for the Law of the Sea and a U.S. scientist on the Commission on the Limits of the Continental Shelf. It would be able to participate actively in the interpretation and implementation of all aspects of this comprehensive treaty, and thus could better protect all of its ocean interests.10
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Another change affecting decision-making was the establishment of a Finance Committee, made up of representatives of 15 countries, which has the power to control the budget of the International Seabed Authority. The United States, if it ratifies the Convention, would have a guaranteed seat on the Finance Committee, as one of the five largest financial contributors to the Authority which are automatically elected to the Committee. Because decisions of the Committee on substance must be made by consensus, the United States (along with the other members of the Committee) will effectively have a veto on the budget of the International Seabed Authority. This change was important in the Clinton Administration’s decision to support ratification of the 1982 Convention.