Those who support UNCLOS, in partic- ular the U.S. Navy, argue that it is essentially a deal: The U.S. gets valuable legal rights of navigation in return for ceding to the ISA some regulatory powers that, since the 1994 agreement, are economically modest and politically unthreatening.
An obvious retort to this is that the U.S. already enjoys navigation and other rights under customary international law and earlier conventions. We gain nothing new by signing the treaty. The Navy responds that we would be on stronger ground in assert- ing our rights against challenge if we were supported by ITLOS (the International Tribunal for the Law of the Sea) in Ham- burg. But signatories to UNCLOS are bound to respect our rights under customary law anyway. Small powers are unlikely to challenge those rights. If a great power were to do so, the U.S. Navy is the only force capable of enforcing them. And that is so whether or not we are signatories to UNCLOS.
If our supposed legal gains from the treaty are in fact losses, what of the acknowledged economic losses? These are admittedly less severe than those proposed in 1982, but they are still unjustifiable and, worse, capable of expansion as the ISA gets into its stride. Thus, if the U.S. wished to drill or mine on the continental shelf beyond a 200-mile limit, it would have to provide a percentage of its revenue, rising from 1 to 7 percent annually, to the Deep Seabed Authority established by the ISA to superintend such commercial exploita- tion. As Frank Gaffney of the Center for Security Policy has vainly tried to explain to U.S. corporations, a company wishing to mine the deep sea has an obligation to set aside an area where the ISA can develop its own mining with financial and technologi- cal assistance from its commercial rival. The ISA is itself obliged by its UNCLOS charter to ensure that the seabed resources are used for the general benefit of mankind. What this means in practice is that the ISA would provide economic assistance to what have been described as “developing countries which suffer serious adverse effects on their export earnings” from deep-sea-bed mining. In other words, nations and companies that engage in com- mercial mining must subsidize their rivals and competitors.
Much more ambitious schemes of re-distribution and technology-transfer were originally intended, but the unfortunate fact that no companies actually did any mining reduced the ambitions of the treaty- writers. Even so, as Rabkin points out, the 1994 revision still has commitments to technology-transfer—and the power to make it a condition of granting mining licenses to signatory countries. The treaty also contains large and vague provisions for protecting the marine and littoral en- vironments. The structure of UNCLOS means that bodies it has created, such as the ISA and ITLOS, are now in effect independent international agencies accountable only to each other. They enjoy both the taxing power in light disguise and the ability to expand the reach of their regulatory activities. And they have a claque of exter- nal supporters in nation-states that are con- tent to have their own sovereignty limited provided that America’s sovereignty is curbed too—even without Washington’s consent.
Even though the U.S. has not ratified UNCLOS, the Chinese government exploited its technology-transfer provisions to obtain advanced sonar technology from U.S. companies. Britain has joined UNCLOS since Thatcher, with the result that the Irish government sought to compel Britain to close down a nuclear reactor on British soil on the grounds that it was adversely impacting the maritime environment and so violating the environmental features of UNCLOS. And if the U.S. actually does sign on, that will add federal judges to the long list of people seeking to exploit the treaty to constrain and direct America’s elected policymakers.