Revision of The 1994 Agreement explicitly dealt with and resolved concerns U.S. had with ratifying UNCLOS from Sat, 06/28/2014 - 14:57
Quicktabs: Arguments
The changes set forth in the 1994 Agreement meet our goal of guaranteed access by U.S. industry to deep seabed minerals on the basis of reasonable terms and conditions. The Agreement overhauls the decision making procedures of Part XI to accord the United States, and others with major economic interests at stake, decisive influence over future decisions on possible deep seabed mining. The United States is guaranteed a seat on the critical decision-making body; no substantive obligation can be imposed on the United States, and no amendment can be adopted, without its consent.
The Agreement restructures the deep seabed mining regime along free-market principles. It scales back the structure of the organization to administer the mining regime and links the activation and operation of institutions to the actual development of concrete interest in seabed mining. The International Seabed Authority has no regulatory role other than administering the mining regime, and no ability to levy taxes.
A future decision, which the United States and other investors could block, is required before the organization's potential operating arm (the Enterprise) may be activated, and any activities on its part are subject to the same Convention requirements as other commercial enterprises. States have no obligation to finance the Enterprise, and subsidies inconsistent with GATT/WTO are prohibited. Of particular importance, the Agreement eliminates all requirements for mandatory transfer of technology and production controls that were contained in the original version of Part XI.
Ken Adelman, an active member of the Reagan Administration’s efforts to persuade allies that they should not support the Convention in 1982, now supports ratification, explaining that the changes made through the Part XI Agreement have responded properly to the concerns they had raised in the early 1980s:
Scraped away are virtually all the barnacles we denounced during our 1982 ‘‘scuttle diplomacy.’’ There’s no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation. Indeed, the U.S. gets a permanent seat on the decision-making body, and thus has veto power. There’s no bar to future qualified mining firms, and no gigantic LOS institution for wannabe bureaucrats.
The seabed mining regime reflects free-market principles. It offers compa- nies the legal certainty needed for large-scale, long-term investments; protects existing claims of U.S. firms; and reinforces international law on territorial waterways. It locks in U.S. offshore economic rights as it expands our rights over resources in a 200-mile exclusive economic zone, 200-mile continental shelf, and in a shelf beyond 200 miles off Alaska.
Perhaps the most significant change for the United States concerned decision-making within the International Seabed Authority. Article 161 of the Convention established a sophisticated decision-making procedure calling for different levels of enhanced majorities depending on the type of decision being made. Section 3 of the Part XI Agreement restructured this procedure by establishing a system of ‘‘chambered voting’’ within the Seabed Authority’s governing Council, to protect minority interests while at the same time allowing majority rule under a one-nation one-vote system. This approach was originally advocated by the Nixon Administration in 1970 when it outlined a system of decision-making for the body that eventually became the International Seabed Authority.
As modified in 1994, the Council, which is the main decision-making body of the International Seabed Authority, now consists of 35 members and has four distinct ‘‘chambers’’ of nations representing different interest groups. One chamber consists of four of the nations with the world’s largest economies, with a specific seat allocated to the United States (if it ratifies the Convention) and one reserved for an Eastern European nation. The second chamber consists of four of the nations that have made the largest investments in deep seabed mining. The third chamber includes four of the nations that are net exporters of the minerals to be mined from the sea floor, including at least two developing countries that rely heavily on the income from these minerals. And the fourth chamber consists of all the other developing nations that are elected to the Council. All questions of substance must be adopted by a two-thirds majority of the entire Council and cannot be opposed by a majority in any of the chambers. In other words, each chamber can veto any decision and block action. Certain key decisions can be made only if there is ‘‘consensus’’ of the entire Council.