[MYTH]: Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as antisubmarine warfare technology).17 In fact, no technology transfers are required by the Convention. Mandatory technology transfers were eliminated by section 5 of the annex to the 1994 Agreement amending Part XI of the Convention. Further, Article 302 of the Convention explicitly provides that nothing in the Convention requires a party to release information the disclosure of which is contrary to the essential interests of its security.
Further, this approach carries an immediate risk to U.S. national security. Allegedly to ensure that the benefits of deep sea mining are properly shared, UNCLOS requires all states to “cooperate in promoting the transfer of technology and scientific knowledge” relevant to exploration and recovery activities in the deep seas.17 The 1994 supplementary agreement endorses these provisions, qualifying them only with vague assurances that technology transfer should be conducted on “fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights.”18 It remains to be seen whether the Authority will assert claims to impose technology transfers in this field. It could do so by making such transfers a condition for approving permits for exploration or recovery by Western firms, since all such activity requires approval of the Authority.19 Yet even without direct demands from the Authority, the Chinese government, by invoking these provisions, managed to obtain microbathymetry equipment and advanced sonar technology from American companies in the late 1990s. China claimed to be interested in prospecting for minerals beneath the deep seas. Pentagon officials warned against sharing this technology with China, given its potential application to anti-submarine warfare. But other officials in the Clinton Administration insisted that the United States, having signed UNCLOS—even if not yet having ratified it—must honor UNCLOS obligations on technology sharing. Future administrations may be more vigilant, but the Authority may, in the future, be more insistent. That is the logic of a treaty that makes mining by firms in one country contingent on the approval of the governments in other countries.
The United States has not ratified UNCLOS because it initially objected to part XI of the treaty, as did many other developed nations.110 The objections to part XI were based on economic and security concerns.111 Part XI recognized the region of seabed and ocean floor beyond the jurisdiction of any state to be the common heritage of humankind.112 Part XI, therefore, requires states to share the financial benefits113 from activities within the region as well as the related technology.114 ￼ ￼ In response to the objections to these provisions, the U.N. General Assembly adopted a resolution to encourage the United States and other objecting states to ratify UNCLOS.115 This resolution, known as the Agreement Relating to the Implementation of Part XI of the U.N. Convention on the Law of the Sea of 10 December 1982, allows countries to ratify UNCLOS without being bound to part XI.116 Given that the United States may ratify UNCLOS without part XI, the benefits to the development of offshore wind power are one of the many reasons for the United States to ratify UNCLOS.117
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
Although the 1994 treaty modifications have toned down some of the most direct mandatory technology transfer requirements, the treaty still places at risk some very sensitive, and militarily useful, technology which may readily be misused by the navies of ocean mining states. These 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.
The military application of these technologies would provide new anti-submarine warfare (ASW) capabilities, strategic deep-sea salvage abilities, and deep-water bastions for launching sub-surface ballistic missiles (SSBM's). With or without the mandatory technology transfer provisions contained in the UNCLOS, U.S. participation would provide a "legal" conduit and cover to justify the acquisition of state- of-the-art deep ocean devices and technology that have profound national security implications. Ocean mining activities by the Enterprise or third world nations, such as China or India, can provide plausible justification for successfully purchasing technologies that, in the absence of ocean mining, would likely be denied on national security grounds.
There is a common misperception that existing national security export control mechanisms will act as a safety net to ensure that the treaty will not serve as a conduit for militarily critical technology to be exported to potential adversaries. Unfortunately, the "stovepiped" nature of many government policy actions masks the fact that the Clinton administration has virtually eviscerated the export control process within the U.S. government and has dismantled the international regulatory mechanism as well (Leitner, 1995). There is no longer a reliable safety net to prevent foreign military or intelligence services from using the treaty as a cover to acquire highly strategic state-of-the-art technology that may be used to enhance power projection or regional destabilization activities.
[MYTH] Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as anti-submarine warfare technology).
- No technology transfers are required by the Convention. Mandatory technology transfers were eliminated by Section 5 of the Annex to the Agreement amending Part XI of the Convention.
- Article 302 of the Convention provides that nothing in the Convention requires a party to disclose information the disclosure of which is contrary to the essential interests of its security.
The United States is the nation with the most to lose – from an economic and national security point of view – from the sort of obligatory technology transfer provisions contained in the Law of the Sea Treaty, including those that would be binding even if the 1994 Agreement has effect.
America has long imposed unilateral export control restrictions precisely for the purpose of preventing transfers that will result in harm to this country. U.S. accession to LOST would require a substantial liberalization, if not wholesale scrapping, of such important self-defense measures.
Actual or potential competitors/adversaries like China, Russia, state-sponsors of terror and even European “allies” understand full well what a technology windfall U.S. adherence to LOST could represent. It would be irresponsible, not to say foolish in the extreme, to believe that none of these parties will take advantage of the opportunity to reap that windfall, to our very considerable detriment.
The Law of the Sea Treaty requires extensive transfers of data and technology – at least some of which could be highly detrimental to America’s industrial competitiveness (including in fields far removed from maritime-related activities) and to the national security. For example:
• LOST’s Article 266 mandates that states “cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions” and “endeavor to foster favorable economic and legal conditions for the transfer of marine technology.”
• Article 268 requires states to “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”
• Article 269 calls for parties to “establish programs of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance.” (Emphasis added.)
• Compulsory dispute settlement mechanisms afford further opportunities to obtain sensitive technology and information. Article 6 of Annex VII requires that parties to a dispute “facilitate the work of the arbitral tribunal and...provide it with all relevant documents, facilities and information.” It can therefore be expected that countries may bring the United States or its businesses before arbitral tribunals – without expectation of a favorable result, solely for the purpose of obtaining sensitive technology information.
The object of these provisions is consistent with the socialist, redistributionist and one-world vision that animated many of LOST’s negotiators: No matter what the costs may be to U.S. security and business interests, the fruits of marine research, exploration and exploitation of “the Area” – the waters covered by the Treaty – and the associated technology must be shared with developing nations, land-locked states and “geographically challenged” countries.
In 1976 GAO was requested by several Committee Chairmen to independently report on the status of negotiations as they were deeply distrustful of the official delegation reports authored by the State Department. As a result, I attended many of the negotiating sessions in New York and Geneva as an observer attached to the US delegation. I joined the U.S. delegation in 1977 and reported regularly to Congress on the state of negotiations through 1982. I was present in New York when the Reagan Administration’s good faith attempt to make the Treaty acceptable was roundly rejected by a coalition of Developing and Communist nations.
Since that time I have closely tracked the accession process and the development of the International Seabed Authority. Having long since left the General Accounting Office and transferred to the Department of Defense I became deeply involved in the Export Licensing process. In this capacity I was assigned a case whereby the People’s Republic of China was using their status as a so-called “pioneer investor” in ocean mining to justify the acquisition of strategic/export-controlled technology under the guise of prospecting for manganese nodules in the mid-Pacific. Unfortunately, the level of technology they were attempting to acquire greatly exceeded the level of capability that either the United States or our industrialized allied used in undertaking such work. The quality of the side-scanning sonar, deep-ocean bathymetric equipment, cameras, lights, remotely operated vehicles, and associated submersible technology provided them the capability to locate, reach, and destroy, or salvage early-warning and intelligence sensors vital to our national security. Additionally, such technology also imparted an offensive capability to our chief potential military adversary by enabling them to map any portion of the ocean or continental shelves to determine submarine routing schemes or underwater bastions where missile-launching or intelligence gathering submarines may operate undetected just off the U.S. coast.
While article 144 of the convention does encourage technology transfer, Section 5 of the 1994 agreement eliminated this mandate and included other provisions to protect sensitive military technologies.
- Treaty modifications in 1994 addressed national security concerns over technology transfer provisions
- Controversial technology transfer provisions have been removed from the convention
- 1994 agreement removed obligations of member states to transfer technology or share revenue
- Technology transfers have been eliminated from the treaty and military sensitive technology was never at risk
Although the 1994 treaty modifications have toned down some of the most direct mandatory technology transfer requirements, the treaty still places at risk some very sensitive, and militarily useful, technology which may readily be misused by the navies of ocean mining states.
- Pernicious effect of technology transfer provision still in effect even after 1994 agreement
- Entrepreneurs likely to be deterred from investing in technology and research necessary for deep seabed mining by excessive royalties requirements
- Technology transfer provisions of UNCLOS could be used to acquire militarily significant dual-use technologies
- Even with amendments, 1994 agreement still puts sensitive military technology at risk of transfer
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