1994 Amendment

“Unsigning” the 1994 Agreement. When the Clinton Administration signed the 1994 Agreement in July 1994, it arguably obliged the United States to refrain from committing any act that would defeat the agreement’s “object and purpose,” even though the United States has ratified neither the agree- ment nor UNCLOS.⁹⁴ The United States should therefore “unsign” the 1994 Agreement to resolve any legal ambiguity regarding U.S. intentions to explore and mine the deep seabed. In May 2002, the Administration of President George W. bush delivered a letter to the U.N. Secretary-General regarding the rome Statute of the International Criminal Court (ICC), which the Clinton Administration had signed in December 2000. The letter stated that the United States “does not intend to become a party” to the rome Statute and accordingly “has no legal obligations arising from its signature on December 31, 2000.”⁹⁵ This “unsigning” of the Rome Statute made clear to the international community that the United States has no intention of joining the ICC, and it enabled the bush Administration to secure pledges from other nations that they would not surrender U.S. military personnel to the ICC for prosecution.⁹⁶ Since securing such pledges would arguably defeat the object and pur- pose of the rome Statute, the unsigning letter was necessary to clarify that the U.S. no longer had an obligation to adhere to the terms of the rome Statute. The United States should unsign the 1994 Agreement to resolve any legal ambiguity regarding U.S. actions that may be seen as violating the agreement’s object and purpose. Since the United States never signed UNCLOS, it is unnecessary to unsign the convention.

Presumably, it is for these reasons that the 1994 Agreement does not explicitly amend LOST. Rather, the Agreement states that “The provisions of this Agreement and Part XI [of LOST] shall be interpreted and applied together as a single instrument.”

At the time the Agreement was signed, a representative of the American ocean mining industry cited this shortcoming in testimony before Congress: “[The 1994 Agreement] does not even purport to amend the Convention. It establishes controlling ‘interpretive provisions’ that will control in the event of a dispute. This is not an approach that gives confidence to prospective investors in ocean mining.” (Emphasis added.)

Neither does the 1994 Agreement require any of the LOST tribunals to abide by the Agreement. This increases the likelihood that such panels, when hearing disputes between parties, will view LOST itself as the basis for resolving the dispute, and not the 1994 Agreement.

That is especially so since roughly sixteen percent of the parties to LOST – fully 25 member countries – have yet to sign the 1994 Agreement. It is far from clear on what basis these countries could be expected to view the Agreement’s purported revisions to the Treaty as legitimate. How, for instance, would resolutions be achieved in disputes between countries that are party to both LOST and the Agreement, on the one hand, and countries that are party only to LOST, on the other? At the very least, the latter could legitimately challenge claims by the United States (or others) to be bound by terms other than those contained in the Law of the Sea Treaty’s agreed text.

Eventually a compromise was formed that, understandably, recognized certain political and economic realities by giving more power to the wealthier nations and securing the rights of private and intellectual property over redistribution. The United States and Russia were given permanent seats on the Council without being specifically named.

An amendment to Article 161 of the Convention under Section Three of the Agreement’s Annex facilitates this permanent seat without actually naming the United States as its occupant: “The Council shall consist of . . . the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product.” Russia, another industrialized State, is virtually guaranteed a seat on the Council as well, by the requirement that chamber (a) include the “State from the Eastern European region having the largest economy in that region in terms of gross domestic product.”¹⁰⁴

A Finance Committee was created, consisting of the five largest contributors to the ISA budget, which would effectively give these nations veto power over any of the Councils decisions.¹⁰⁵ The Committee would remain in effect until the ISA became “cost- effective.”¹⁰⁶ And a consensus of the Committee was required to approve “any decision by the Council or Assembly with budgetary implications.”¹⁰⁷

But most importantly, the teeth of the Enterprise were effectively removed. The changes to the treaty in Annex III of UNCLOS regarding the rules of prospecting, exploration, and exploitation completely remove any obligation to freely share information or technology with the Enterprise.

“[Annex III] removes the requirement that parties contracting with the Authority agree to make methods and technology available to the Authority. The Agreement instead provides that the Authority may request cooperation from contracting parties.”¹⁰⁸ It only requires it share those willingly, perhaps at a fair market price. “The Agreement also makes clear that contractors entering into joint venture agreements with the Enterprise are under no obligation to finance any part of the Enterprise’s mining operation.”¹⁰⁹

With these changes. UNCLOS better reflects the political and economic realities of today’s world. Although these compromises might have put most of the ISA’s power in the hands of the developed world, they have also created an agreement the whole world can live with.