Multiple states, corporate entities, and NGOs would have cause to challenge U.S. companies claims to resources outside of UNCLOS
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Who might see fit to challenge the actions of a seafloor free rider like the United States? To begin, UNCLOS member states have obvious interests in the integrity of the continental shelf and seabed regimes in which they invest. Potentially interested states fall into at least three categories. First are states that may have an interest in conducting commercial activity of their own in an area claimed by the U.S. but not ratified through the UNCLOS process. Second are states that might have no objection, per se, to U.S. activity, but wish to ensure the United States pays its fair share under UNCLOS for the privilege of conducting commercial activity. Third are states that stand to benefit from the Article 82 “equitable sharing” payments and seek to ensure such payments are maximized.
In addition to UNCLOS member states, corporations with commercial interests in the seabed floor may have an interest in ensuring that actual and potential competitors do not obtain an unfair competitive advantage by operating outside the UNCLOS system. Although Article 82 royalties are assessed to states, it seems reasonable to assume that corporations may be assessed extended continental shelf fees by their licensing- states. Likewise, if operating in the area, corporations required to abide by rules and regulations established to govern the area would presumably demand that their competitors be bound by the same rules.
Similarly, the ISA, created by UNCLOS to “organize and control activities in the Area” and to distribute economic assistance and Article 82 royalty payments, would have an interest in preserving the integrity of the system it was created to oversee. Importantly, the ISA has been vested with international legal personality, which includes the power to bring suit to enforce its interests.168
Finally, enterprising NGOs might take a keen interest in whether a state and its licensees are profiting at the expense of developing and land-locked states protected by UNCLOS, or, whether states and licensees are complying with ISA regulations created to protect the marine environment in and around the common heritage of mankind. The most obvious targets for NGO disapproval and legal or political action would seem to be the states and corporations operating outside the economic assistance and environmental protection regimes created by UNCLOS.
States, corporate entities, and NGOs all have incentives to challenge unilateral claims by countries to resources outside the UNCLOS regime. Knowing this, U.S. corporations are reluctant to risk the liability involved in pursuing these claims, to the detriment of the U.S. economy.