Don’t Resurrect the Law of the Sea Treaty
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As originally written, the treaty was explicit- ly intended to restrict mineral development. Among the treaty’s objectives were “rational management,” “just and stable prices,” “orderly and safe development,” and “the protection of developing countries from the adverse effects” of mineral production. The LOST explicitly limited mineral production and authorized commodity cartels (rather like OPEC). Further, the treaty placed a moratorium on the mining of some resources, such as sulfides, until the Authority adopted rules and regulations— which might never have happened.
The procedures governing mining reflect- ed that anti-production bias. A firm would have been required to survey two sites and turn one of them over gratis to the Enterprise before even applying for a permit. The Authority had the power to deny an applica- tion if the operation would violate the treaty’s anti-density and anti-monopoly provisions, aimed at U.S. operators. And the ISA’s deci- sions in this area were to be set by a subsidiary body, the Legal and Technical Commission. Developing countries would dominate the 36- member council, as they did the Assembly, leaving access of American firms to the deep seabed (that beyond national jurisdiction) dependent on the whims of countries that might oppose seabed mining for economic or political reasons.
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The LOST’s fundamental premise is that all unowned resources on the ocean’s floor belong to the “people of the world”—effec- tively the UN. But an international regulato- ry system would likely inhibit development, depress productivity, increase costs, and discourage innovation, thereby wasting much of the benefit to be gained from mining the oceans. The Byzantine regime created by the LOST was, and remains, almost unique in its perversity. In the original agreement, the UN would have asserted its control through the International Seabed Authority, ruled by an Assembly dominated by poorer nations and a council that would regulate deep seabed mining and redistribute income from the indus- trialized West to developing countries. The ISA would employ as its chief subsidiary to mine the seabed a body called the Enterprise, which would enjoy the coerced assistance of Western mining companies.
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However, most businessmen understand that it makes little difference whether or not, say, Congo, recognizes their right to harvest manganese nodules in the Pacific. Indeed, given the dynamics of seabed mining, it probably doesn’t even matter if other industrialized nations with firms capable of mining the ocean floor recognize one’s claim. In all but the most unusual cases, the seabed’s irregular geography and surplus of nodules make “poaching” uneconomical—it would make more sense to develop a new site than to attempt to overrun someone else’s.
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In any case, it would have been quite simple to build an alternative to the LOST. In 1980 Congress passed the Deep Seabed Hard Minerals Act to provide interim protection for American miners until Congress ratified an acceptable LOST. The act could simply be amended to create a permanent process for recording seabed claims and resolving con- flicts. Such legislation could then be coordinated with that of the other leading industrialized states. In September 1982 Britain, France, Germany, and the United States signed the Reciprocating States Agreement to provide for arbitration of competing claims. Such an informal system could have been upgraded into a formal treaty, authorizing each nation to oversee its own companies’ activities and creating a mechanism for resolving conflicts. No international bureaucracy would have been necessary.
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Land-based mineral producers are generally opposed to the very idea of seabed mining. Yet they, as well as the “developing States Parties, representing special interests,” such as “geo- graphically disadvantaged” nations, each have their own chamber and, thus, a de facto veto over the ISA’s operations.30 Thus, the voting power of such groups essentially matches that of America. Moreover, the qualification stan- dards for miners are to be established by “con- sensus,” essentially unanimity, which could give land-based producers as much influence as the United States. The possession of a veto provides them with an opportunity to extract potentially expensive concessions—new limits on production, for instance, or increased redis- tributionist payments under the treaty—to let the ISA function. Unfortunately, once the Authority asserts jurisdiction over seabed mining, potential producers would be hurt by a deadlock.
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The International Tribunal for the Law of the Sea is supposed to offer dispassionate adjudication of disputes. Yet membership is decided by quota: each “geographical group” is to have at least three representatives.29 That is a modest improvement over the original scheme: five members each for Africa and Asia, four each for the “Western European and Others Group” and Latin America, and three for Eastern Europe.
The voting system has been improved, but the changes are inadequate. According to the revised treaty, the United States would be guaranteed a seat on the council, though still not a veto. The 36-member council is divided into four chambers of varying size, with members chosen from minerals consumers, seabed investors, minerals producers, developing nations, and others, respectively. The United States could be elected in any one of the first three chambers but is promised a seat in the first one (for minerals producers). Since Washington has not ratified the treaty, the United States is currently not a member of the council. If the United States did ratify the treaty, however, and took its seat in the council, a majority of members voting no in any one of the four chambers could block action. On matters of serious interest, the United States probably could win the necessary votes to form a majority in its chamber, but not necessarily. The career foreign service officers likely to represent most nations in the ISA would not want to be forever known as obstructionists. Moreover, this purely negative veto power does not guarantee that the ISA would act when required, and could be used by other countries to delay or impede the approval of mining applications, for instance.
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Funding remains a problem as well. The United States, naturally, would be expected to provide the largest share of the ISA’s budget: 25 percent to start. How much that would be is impossible to predict; the budget is to be developed through “consensus” by the Finance Committee, on which the United States is temporarily guaranteed a seat (“until the Authority has sufficient funds other than assessed contributions to meet its administrative expenses”).32 After the Finance Committee vote, the budget must be approved by the Assembly and the council. Years ago the United Nations estimated that the ISA would cost between $41 million and $53 million annually, on top of initial office construction costs of between $104 million and $225 million.33 The Clinton administration contended that the revised agreement provided for “reducing the size and costs of the regime’s institutions.”34 How? By adopting a paragraph pledging that “all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective.”35 Similarly, states the amended accord, the royalty “system should not be complicated and should not impose major administrative costs on the Authority or on a contractor.”36
These sentiments might be genuine. So far the ISA has been spending only about $5 million annually. But then, the world’s wealthiest nation is not yet a member. Moreover, the revised agreement has changed none of the underlying institutional incentives that bias virtually every international organization, most obviously the UN itself, toward extravagance.
In fact, concern over bloated budgets was a major factor in Moscow’s initial decision in 1994 not to endorse the treaty. (Russia has since ratified the LOST.) Russian ambassador to the UN Yakov Ostrovsky explained to the General Assembly that though the revisions were “a step forward,” he doubted the new agreement would limit costs. Of particular concern was the fact that “general guidelines such as necessity to promote cost-effectiveness cannot be seriously regarded as a reliable dis-incentive [to spending].” Before the treaty had even gone into force Ambassador Ostrovsky pointed to “a trend to establish high-paying positions which are not yet required.”37
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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
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Nor is the treaty unambiguously favorable to transit rights. The document introduces some new limitations on navigation involving the EEZs, territorial seas, and water surrounding archipelagic states. Even seemingly innocent restrictions might have a negative impact; Alfred Rubin of Tufts University worried that the ban on “research or survey activities” could limit U.S. naval transit rights.
At other times the LOST’s language is ambiguous—regarding transit rights for sub- merged submarines, for instance—which ultimately limits the value of the treaty guarantee. Ambassador Pardo complained that the treaty “is often studiously unclear, and predictability suffers.”50 Louisiana State University law professor Gary Knight argued that “the difficulty of establishing our legal right to EEZ navigation [through other nations’ exclusive economic zones] and submerged straits passage [for submarines] would be no more difficult under an existing customary international law argument than under the convoluted text of the proposed UNCLOS.”51 In short, there is only a modest theoretical advantage for which to trade away the mining provisions.
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Even if the LOST offered a definite and positive interpretation of navigation provi- sions, the legal protections for free transit would provide little practical gain. Benjamin and Daniel Friedman contend: “By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.” Administration representatives make the same argument: “The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms,” testified Adm. Michael G. Mullen, then vice chief of naval operations for the Joint Chiefs of Staff. "
That’s true, but it doesn’t go very far. The now-retired Admiral Schacte acknowledged in Senate testimony: “The Convention alone is not enough, even [with the United States] as a party. Our operational forces must continue to exercise our rights under the Convention.”54 That is, to protect American navigation rights from foreign encroachments, the U.S. Navy must regularly conduct military operations on the basis of the international transit freedoms claimed by Washington, regardless of whether or not the United States ratifies the LOST. Meanwhile, the LOST is unlikely to influence countries that have either the incentive or the ability to interfere with U.S. shipping. In practice, few do: nations usually have far more to gain economically from allowing unrestricted passage.