It’s Time to Get Off the Bench: The U.S. Needs to Ratify the Law of the Sea Treaty Before It’s Too Late
Quicktabs: Citation
Lockheed Martin, a U.S. based company, has been a large proponent of recognizing the need for the ISA.120 In June 2012, the chairman of Lockheed Martin sent a letter to the U.S. Senate stating, “[Lockheed Martin] wanted to join the race for undersea riches, but could not assume investment risks until it was clear that it would have a clear legal title to its findings.”121 Lockheed Martin stated it is unwilling to do so absent U.S. ratification of UNCLOS.122
Lockheed Martin also participated in a 2012 movement known as The American Sovereignty Campaign, which was comprised of members from the government and private sector.123 The campaign’s goal was to send Congress a message: that U.S. accession to UNCLOS would “invite economic opportunity, create U.S. jobs, and protect business and commercial interests at home and abroad.”124 Lockheed Martin is the only U.S. based holder of exploration licenses granted by the ISA.125 Jennifer Warren, Vice President of Lockheed Martin stated, “business initiatives to exploit deep seabed mineral resources will only be able to secure the necessary financial investments if done pursuant to the existing international framework,” referring to the legal structure created by the ISA and UNCLOS.126
Advocates against U.S. accession believe it would disadvantage U.S. interests and place the U.S. under the thumb of the ISA.168 The assertion that U.S. interests will be lost in the sea of interests of the other 167 Member States is misplaced.169 U.S. interests have not been represented, in part, due to its 33-year absence.170 The deep seabed mining framework continued to develop and gain popularity despite the U.S.’s absence.171 Only by acceding to UNCLOS, will the U.S. regain its proper place as a world leader in shaping the law of the sea while representing its own interests in the proper international arena—before the ISA.172
When the treaty was still gaining its sea legs, the U.S.’s influential impact was evident through its ability to band seven industrialized nations173 into forming the Provisional Understanding, an agreement that operated outside the ISA’s purview.174 After the ISA declared the Provisional Understanding “wholly illegal” under UNCLOS, all seven members of the treaty essentially abandoned the U.S. and ratified the treaty in the 1990’s.175 The realization that the ISA’s deep seabed mining was becoming increasingly appealing became a significant factor in the U.S. diminishing influence over matters relating to the law of the sea.176
By ratifying the treaty, the U.S. will not instantaneously regain its former influence, but it will be a huge step in the right direction compared to its static approach for the past three decades.187 Upon ratification, the U.S. will first regain its seat on the ISA’s Council.188 In addition, the U.S. will gain “important veto rights over distribution of any future revenues from deep seabed exploitation to national liberation groups.”189
Not only will the U.S. regain a seat on the ISA’s Council, but also it will have the ability to participate in the elections of judges for the International Tribunal for the Law of the Sea,190 members of the Commission on the Limits of the Continental Shelf (CLCS),191 and other arms of the ISA.192 This is a critical opportunity for the U.S. to place its own representatives in key areas of the ISA to help restore U.S. presence in vital matters concerning the Area.193 Furthermore, by reasserting itself as an authoritative component in the ISA, the U.S. will be better able to sway other nations in the issuing of decisions by the ISA.194 By taking this route versus obtaining a “veto” power over all ISA decisions, the U.S. will be more respected by Member States rather than being seen as a haughty and stubborn Western power as characterized by Molitor.195
The fear that U.S. interests will be dominated by the interests of other Member States is overstated by critics of UNCLOS.196 U.S. accession will be a landmark event in UNCLOS’ history and will make waves throughout the international community.197 The reemergence of the U.S. will make a considerable impression and will only grow over time.198 Former U.S. Army General and the 18th Chairman of the Joint Chiefs of Staff, Martin Dempsey, stated the impact best when he said “We have the world’s largest and most capable Navy, the world’s largest economy and the largest Exclusive Economic Zone. We will become the leader within the Convention as soon as we enter it, and that’s never been more important” [emphasis added].199 To properly reassert itself as an influential player, relevant leader, and active participant in the affairs of the oceans, the U.S. must accede to UNCLOS.200
Lockheed Martin has already sent American jobs outside the U.S. in order to obtain the benefits from ISA Member States.232 As 2018 approaches, the eyes of the world will turn its focus on Nautilus’ attempt to successfully operate the world’s first deep seabed mining operation.233 The success of the Solwara 1 Project will usher in a new era of opportunity for all, excluding non-ratifying States like the U.S.234 The probable response by other U.S. companies would be to follow Lockheed Martin’s footsteps, triggering the trend of utilizing foreign subsidiaries to operate deep seabed mining businesses, to the detriment of the United States.235
Since the mid 1990’s, the U.S. experienced a steady decline in its sphere of influence in the arena of ocean law and deep seabed resources.224 In 1982, the U.S. was one of the most prominent influences and contributors to UNCLOS.225 The U.S. once wielded enough influence and authority that the drafters of UNCLOS addressed the original misgivings of the Reagan administration through the Implementation Agreement.226 But when the U.S. chose a different path in 1998, it inadvertently surrendered its influential voice in the rulemaking affairs of the world’s oceans.227
Without its seats on the various arms of the ISA, any call for change by the U.S. relating to ocean affairs will fall on deaf ears.228 President Obama pointed out that “[I]t’s a lot harder to call on China to resolve its maritime disputes under the Law of the Sea Convention when the United States Senate has refused to ratify it.”229 Regardless of the U.S. Senate’s refusal to ratify the treaty, “top decision and policy makers [continue] to operate under the spirit of the law” provided by UNCLOS.230 The U.S. Senate must realize that despite its continued reservations of UNCLOS, members of political, security, and economic communities in the U.S. recognize the tremendous value in UNCLOS.231
Contrary to the belief that UNCLOS “discourage[s] U.S. companies from participating in such [mining] activities,” there has been a call by U.S. companies and business leaders to ratify the treaty as soon as possible.201 At the 2012 Forum on the Law of the Sea held in Washington, Jennifer Warren, Vice President of Lockheed Martin, expressed the company’s high interest in deep seabed exploration and continued support of UNCLOS.202 Warren declared, “[r]ecent developments in deep seabed resources have really sharpened our interest in seeing the law of the Sea ratified as soon as possible.”203
Lockheed Martin currently benefits from UNCLOS and the ISA by acting through its British subsidiary.204 Despite this workaround, the company’s actions are symbolic of how important accession to the treaty is to the economic interests of the U.S.205 First, Lockheed’s workaround shows a lack of confidence in the current deep seabed mining regime provided by DSHMRA and the U.S.’s multilateral and bilateral agreements with a select group of nations.206 Second, it demonstrates the value U.S. companies place in security and predictability, both of which are provided by the ISA and UNCLOS.207 Lastly, it validates the significance of deep seabed resources.208 Warren’s statement summarized it best:
The importance of these resources is well understood internationally. Other countries are moving forward quickly and aggressively to access them. As the only U.S.-based claimant, our view is pretty straightforward. Business initiatives to exploit deep seabed mineral resources will only be able to secure the necessary financial investments if done pursuant to the existing international framework.209
In addition, John Ryan, Chief Legal Officer of Level 3 Communications,210 stated, “that any uncertainty inhibits economic growth and investment” when the protection of infrastructure in international waters is not guaranteed.211 While the rest of the world enjoys the benefits of UNCLOS and the ISA, the U.S. idly stands by, watching other nations like China and Russia claim prime locations for deep seabed mining activities.212
Lastly, U.S. companies are not subject to the mandatory technology transfer requirements of Article 5 of Annex III of UNCLOS.213 As a result of Implementation Agreement, Section 5 of the treaty has been replaced by a set of general principles relating to technology transfers with a developing Member State.214 Furthermore, the treaty includes language to prevent technology transfers in the event it poses a national security risk to the U.S.215 Article 302 states: “[N]othing in this Convention shall be deemed to require a State Party, in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.”216
Only through the ratification of UNCLOS will the U.S. be able to truly provide American companies with the support and competitive edge that they have been craving for three decades.217 Without the risk of mandatory technology transfers, U.S. companies have nothing to lose and much to gain from the stability and predictability UNCLOS provides.218 To avoid losing American jobs to foreign locations like the U.K., the U.S. needs to accede to UNCLOS to help foster a deep seabed mining industry for U.S. companies and create jobs in this potentially lucrative and emerging industry.219