Mineral Resources of Stateless Space: Lessons from the Deep Seabed
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From the perspective of the United States, the regime for deep seabed minerals is a success. Reduced greatly in size, scope and autonomy from the proposals of the NEIO, the authority provides the exclusive right to explore, develop and exploit mineral deposits of the deep seabed and to obtain clear title to the recovered minerals; the Authority is a defined and constrained regulatory regime that provides predictability and comparability with the land-based regimes of national governments. This was the objective of the United States from the beginning of the UNCLOS process and it was achieved through persistence during periods of market ups and downs, the development of the non-aligned movement and the NIEO, and the introduction of democracy and market economies into the eastern socialist bloc. Perhaps more importantly, beyond the confines of the deep seabed, the decision-making structure of the Authority provides a demonstration of an alternative decision-making process in international organizations based on consensus and chambered voting, changing the balance from the "one nation, one vote" and "majority rules" methods of groups such as the UN General Assembly.
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Eventually, the seabed regime may also be called on to make adjustments thrust upon it by states acting outside the authority. If the authority gains the trust of its members as an effective manager and steward of deep ocean minerals, it is possible that states may negotiate to add other deep ocean issues to the responsibilities assigned to the authority by UNCLOS and the 1994 Agreement. The subject of the management, protection and exploitation of the biodiversity of life on the deep ocean floor has gained some attention.36 While there is only limited knowledge of the scope or the fraglity of the marine life of the seabed, there have been discussions of the potential commercial value of this resource.37 The authority, charged with protecting the marine environment, must consider effects on marine life of mineral exploration and exploitation. It is conceivable that a new agreement could extend the role of the authority to the management, exploitation and protection of deep seabed biodiversity.
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The International Seabed Authority is the end result of years of negotiation, confrontation, compromise and regime building. As of June 2005, there were 148 member states, and seven consortia with contracts for exploration or exploitation of deep seabed minerals (the contract of exploration for an eighth consortium is being prepared based on the approval of its proposed plan of work at the August 2005 session of the authority).39 Few countries remain outside the convention, and the most notable non-member, the United States, is the only the regime. Given the widespread acceptance of the regime and the historically multinational composition of ocean mining consortia, it appears certain that any exploitation of deep seabed mineral resources will be conducted under the regime since operating outside it raises significant and costly questions of recognition title to recovered minerals, potential for international legal actions to impede operations, and overt or covert retribution against other activities of developers by members of the authority.
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The authority is not only a regime designed to manage the exploitation of the mineral resources of the deep ocean floor. It is also a prototype for new multilateral regimes in other spaces and resources. Innovations such as chambered voting by interest groups, emphasis on decision-making by consensus, formal roles for panels of experts and extensive contributions by expert bodies and individuals will be test- ed in the authority, and the successes and failures in this regime will provide lessons for the negotiation of otber regimes in the future. Members have already indicated the importance of U.S. participation in the organization through the 1994 Agreement, which addressed all the U.S. concerns witb tbe seabeds issues in UNCLOS. The opportunity to help lead this organization tbrough its substantive contributions, and even more through its inspirational standards, is now here. The Bush administration bas given its support to U.S. ratification of UNCLOS and the 1994 Agreement. The Senate Foreign Relations Committee bas endorsed it unani- mously. The potential for U.S. leadership in a new multilateral organization rests now with tbe leadership of tbe U.S. Senate, whicb should move forward by giving its advice and consent to the convention and tbe 1994 Agreement on Implementation.