Evidence: Most Popular
Evaluating the pros and cons of U.S. accession to the Law of the Sea Convention is complicated, because, unlike multilateral treaties that address a single, relatively narrow topic, the Convention concerns a wide range of issues. Nevertheless, many provisions of the Convention appear to favor U.S. businesses and the U.S. military, segments of society that the Bush Administration supports. For example, the U.S. oil industry, which possesses the technology to drill at great depths under the ocean, favors U.S. accession.21 The Convention establishes a mechanism for setting the outer limits of the continental shelf beyond 200 miles from baselines, which would result in oil companies gaining the security that comes with defined limits for drilling claims.22 Most significantly, the Convention provides, in the U.S. view, minimal restrictions on the passage of military vessels through straits and other coastal zones and permits such vessels to conduct military surveys and exercises in the 200-mile exclusive economic zones (EEZs) of other states.23 In 2004, General Richard Myers, Chairman of the Joint Chiefs of Staff, labeled U.S. accession to the Convention a "top national security priority," reflecting the view that the Convention's provisions relating to navigation and military exercises are essential to U.S. security.24 In addition, the commercial shipping industry, as well as the U.S. military, benefits from the Convention's freedom of navigation provisions.
Convention proponents also maintain that "undesirable" features of the Convention can be and have been minimized. The Reagan Administration refused to sign the Convention in the early 1980s, arguing that its deep-seabed-mining regime was excessively anti-competitive and did not give the United States decision-making authority commensurate with its power.25 The changes to Part XI made by the 1994 Agreement satisfied President Reagan's objections to the Convention's original regime.26 Another U.S. concern-that U.S. military activities might be subject to review by an international tribunal under the Convention's dispute settlement procedures-could be eliminated by opting for a Convention-authorized jurisdictional exception.27 According to Convention proponents, the policy benefits of U.S. accession far outweigh any potential negative consequences.
The United States might react to these coastal state navigational restrictions in four possible ways.32 First, it could acquiesce in them, a reaction that would significantly restrict navigational freedoms important to the United States. Second, the United States could continue to assert, via diplomatic channels, a customary international law right to navigation, backing up its assertions with naval exercises. Although the United States has been following this practice since 1979 under its Freedom of Navigation Program, this option is expensive. It is expensive in terms of dollars, potential confrontations, and prejudice to other U.S. interests in the coastal state.33 Furthermore, this option may not contribute to a stable legal regime, since some U.S. claims under customary international law could compete with coastal state assertions of different emerging rules of customary international law. Third, the United States could negotiate bilateral treaties to preserve U.S. navigational rights in other states' coastal zones. This option is also expensive. Small states, not interested in sailing their vessels or conducting military exercises in U.S. waters, would expect other new military, economic, or political concessions in exchange for allowing the United States to conduct military exercises or navigate in their coastal zones. Finally, the United States could accept the multilateral Law of the Sea Convention. With respect to navigation rights, this treaty provides a stable legal base from which to promote freedom of navigation rules. Its written and hard-to- change rules, though not always highly determinate, at least narrow the range of disputes over permissible and impermissible restrictions on navigation. Convention proponents have strong consequentialist arguments to support the position that the Con- vention's freedom of navigation provisions benefit the United States.
The new institutions created by the Law of the Sea Conven- tion could at times decide matters affecting high seas freedoms, and the United States could contribute to such decisions if it participated as a member of these institutions. For example, could the International Seabed Authority promulgate mining-related environmental regulations restricting the scope of permitted activities at deep seabed vents where living organisms, as well as polymetallic sulfides, are found? U.S. participation in the work of the Authority could help to ensure that non-mining activities on the deep seabed, such as bioprospecting for living organisms at deep seabed vents (a part of the multi-billion dollar marine biotech business), continue to be regarded as high seas freedoms.65 U.S. interests in high seas freedoms also provide one impetus for U.S. participation in the work of the Conti- nental Shelf Commission, another institution created by the Convention. Overly expansive coastal state assertions of continental shelves beyond 200 miles from baselines would reduce the area of the oceans in which rights and freedoms are subject to the fewest restrictions.66 The United States could most effectively counter such assertions by participating as a member of this Commission. These participation or process concerns are illustrations of the general claim that accession to the Law of the Sea Convention is important to U.S. leadership on oceans issues.
A pragmatic approach is proposed in the present paper. The progress made on the UNCLOS led to an improved understanding of the CHM and suggests that the differences between developing and developed countries can be reconciled. While leaving the theoretical discussion of the term unresolved, formulation of an international body to address the use of outer space resources can begin. Whatever form it takes, the body should be able to address and further the common, equitable interests of the developing countries (the non-space powers), and the interests of developed countries (the space powers)."' The proposed governance regime will try to encourage the beneficial aspects of property rights and formulate rules that discourage conflict and predation."
While following the example of Seabed Authority, this paper proposes the establishment of an International Space Authority. The commercialization of outer space is no longer a fantasy. There is an urgent need to take a practical look at the issue and formulate feasible rules and organs to guard against taking the wrong direction. Humankind has taken the first tentative steps laying the technological foundation for commercial expansion. The challenge lying ahead is to build on the existing technological foundation and create the appropriate legal regime that will support and encourage this expansion.
Realizing the commercial potential of outer space is an issue in need of urgent resolution. It is important to devise a regime for the exploitation of outer space by reaching a balance between protecting the profits of relevant exploiting entities and serving the interests of humankind.5 While previous discussions focused on the theoretical framework of the CHM concept, it is the purpose of the present paper to focus on establishing a governance regime based on the successful example of the Seabed Authority. Discussions concerning the use of CHM will continue, just like the situation regarding the deep seabed: heated discussions continued even after the Seabed Authority was established and commercial activities began. Nonetheless, the existence of a stable governance regime can, as in the case of the deep seabed, enhance the confidence of space investors and promote further development of commercial space activities.
While continuing upholding the concept of CHM, the free-market approach plays an important role in devising the regime for the deep seabed. Most scholars believe that only by making full use of the resources in the deep seabed rather than establishing a regime installing commercial exploitation, can the living standards in all the Nations be effectively improved.35 Acknowledging the benefits of commercial exploitation, all nations, developed and otherwise, have a basis to work together to find an appropriate resolution. Essentially, the same political and economic environment exists for outer space. A similar regime to that of the deep seabed could, thus, be possible for the exploitation of outer space resources. Consequently, the focus for now is to identify the legal mechanisms and political compromises that successfully resolved the CHM dilemma for the deep seabed and apply it to outer space. This is more efficient than developing new legal, economic, and political theories.