Don’t Resurrect the Law of the Sea Treaty
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However, most businessmen understand that it makes little difference whether or not, say, Congo, recognizes their right to harvest manganese nodules in the Pacific. Indeed, given the dynamics of seabed mining, it probably doesn’t even matter if other industrialized nations with firms capable of mining the ocean floor recognize one’s claim. In all but the most unusual cases, the seabed’s irregular geography and surplus of nodules make “poaching” uneconomical—it would make more sense to develop a new site than to attempt to overrun someone else’s.
In any case, it would have been quite simple to build an alternative to the LOST. In 1980 Congress passed the Deep Seabed Hard Minerals Act to provide interim protection for American miners until Congress ratified an acceptable LOST. The act could simply be amended to create a permanent process for recording seabed claims and resolving con- flicts. Such legislation could then be coordinated with that of the other leading industrialized states. In September 1982 Britain, France, Germany, and the United States signed the Reciprocating States Agreement to provide for arbitration of competing claims. Such an informal system could have been upgraded into a formal treaty, authorizing each nation to oversee its own companies’ activities and creating a mechanism for resolving conflicts. No international bureaucracy would have been necessary.
Funding remains a problem as well. The United States, naturally, would be expected to provide the largest share of the ISA’s budget: 25 percent to start. How much that would be is impossible to predict; the budget is to be developed through “consensus” by the Finance Committee, on which the United States is temporarily guaranteed a seat (“until the Authority has sufficient funds other than assessed contributions to meet its administrative expenses”).32 After the Finance Committee vote, the budget must be approved by the Assembly and the council. Years ago the United Nations estimated that the ISA would cost between $41 million and $53 million annually, on top of initial office construction costs of between $104 million and $225 million.33 The Clinton administration contended that the revised agreement provided for “reducing the size and costs of the regime’s institutions.”34 How? By adopting a paragraph pledging that “all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective.”35 Similarly, states the amended accord, the royalty “system should not be complicated and should not impose major administrative costs on the Authority or on a contractor.”36
These sentiments might be genuine. So far the ISA has been spending only about $5 million annually. But then, the world’s wealthiest nation is not yet a member. Moreover, the revised agreement has changed none of the underlying institutional incentives that bias virtually every international organization, most obviously the UN itself, toward extravagance.
In fact, concern over bloated budgets was a major factor in Moscow’s initial decision in 1994 not to endorse the treaty. (Russia has since ratified the LOST.) Russian ambassador to the UN Yakov Ostrovsky explained to the General Assembly that though the revisions were “a step forward,” he doubted the new agreement would limit costs. Of particular concern was the fact that “general guidelines such as necessity to promote cost-effectiveness cannot be seriously regarded as a reliable dis-incentive [to spending].” Before the treaty had even gone into force Ambassador Ostrovsky pointed to “a trend to establish high-paying positions which are not yet required.”37
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
Nor is the treaty unambiguously favorable to transit rights. The document introduces some new limitations on navigation involving the EEZs, territorial seas, and water surrounding archipelagic states. Even seemingly innocent restrictions might have a negative impact; Alfred Rubin of Tufts University worried that the ban on “research or survey activities” could limit U.S. naval transit rights.49Monster from the Deep: Return of UNCLOS — Alfred P. Rubin. — The National Interest — Sep 01, 1994 [ More ]
At other times the LOST’s language is ambiguous—regarding transit rights for sub- merged submarines, for instance—which ultimately limits the value of the treaty guarantee. Ambassador Pardo complained that the treaty “is often studiously unclear, and predictability suffers.”50 Louisiana State University law professor Gary Knight argued that “the difficulty of establishing our legal right to EEZ navigation [through other nations’ exclusive economic zones] and submerged straits passage [for submarines] would be no more difficult under an existing customary international law argument than under the convoluted text of the proposed UNCLOS.”51 In short, there is only a modest theoretical advantage for which to trade away the mining provisions.
Even if the LOST offered a definite and positive interpretation of navigation provi- sions, the legal protections for free transit would provide little practical gain. Benjamin and Daniel Friedman contend: “By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.”52 How the Law of the Sea Convention Benefits the United States . Bipartisan Security Group: Washington, D.C., November 2004 (7p). [ More (4 quotes) ] Administration representatives make the same argument: “The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms,” testified Adm. Michael G. Mullen, then vice chief of naval operations for the Joint Chiefs of Staff.53"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ]
That’s true, but it doesn’t go very far. The now-retired Admiral Schacte acknowledged in Senate testimony: “The Convention alone is not enough, even [with the United States] as a party. Our operational forces must continue to exercise our rights under the Convention.”54 That is, to protect American navigation rights from foreign encroachments, the U.S. Navy must regularly conduct military operations on the basis of the international transit freedoms claimed by Washington, regardless of whether or not the United States ratifies the LOST. Meanwhile, the LOST is unlikely to influence countries that have either the incentive or the ability to interfere with U.S. shipping. In practice, few do: nations usually have far more to gain economically from allowing unrestricted passage.