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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.
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
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
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.
Rising maritime powers across the globe are reinterpreting customary international law to promote their own national interests -- including in ways that may conflict with longstanding maritime norms and American interests. Nowhere is this more apparent than in the South China Sea, where China's outsized claim to the entire region flies in the face of both traditional practices and LOSC. But China is not the only offender. Burma, Thailand, and others are joining China in more restrictive interpretations of maritime navigational rights, including anti-access norms that could constrain the U.S. Navy's ease of access in this crucial maritime domain.
Unfortunately, the United States is not in a position to rebuff these restrictive interpretations and protect the maritime norms that have been so beneficial to the global economy and U.S. security. U.S. failure to ratify the treaty has prevented the United States from taking a seat at the table to avail itself of the convention's established legal frameworks, such as the Law of the Sea Tribunal. And while the United States sits on the sidelines, other countries are engaging in discussions of maritime law, and in some places working toward consensus on issues that could have consequences for the United States for decades. Joining the treaty will allow the United States to lead these important discussions and, more importantly, enable the United States to negotiate with countries from a position of strength to protect the customary practices codified by the convention.
Ratifying LOSC will also strengthen a range of ongoing U.S. security activities. The U.S. Navy and U.S. Coast Guard are our key instruments of power at sea and ratifying LOSC will strengthen their ability to do their job and work with others to protect U.S. interests, including areas such as counter proliferation and counter piracy. More importantly, ratifying the convention would give the U.S. Navy and Coast Guard the strongest legal footing for their actions, including in places like the Strait of Hormuz, where Iran has threatened to close access to the international passageway in direct violation of the convention. As Chairman of the Joint Chiefs of Staff General Martin Dempsey recently said, "It validates the operations we conduct today and realizes our vision for a secure future."
Moreover, mining companies much prefer the known difficulties of operating on land to those of operating on the seabed. The risks of working in a place where volcanic activity seems to have stopped but may suddenly resume are uncertain. So indeed are the possible obligations to repair the underwater environment: no legal codes are yet in place for deep-sea mining. That helps to explain why the only places in which companies have dipped more than a toe in the water are in exclusive economic zones, which are not just shallower than many parts of the distant ocean but also within the legal ambit of a national authority.
Seafloor mining beyond countries' territorial waters is regulated by the International Seabed Authority, set up under the United Nations Convention on the Law of the Sea. So far it has issued only eight licences, all for exploration, not production, all for nodules, not massive-sulphide deposits, and all to governmental or quasi-governmental agencies (of China, France, Germany, India, Japan, Russia, South Korea and an east European consortium). No wonder. Commercial miners want both a clear title to their holding and exclusive rights to exploit it. They also have to answer to shareholders.
One reason massive-sulphide formations beguile miners is that the metals they contain—notably copper, gold, zinc and silver—are highly concentrated. Another is that they are often big, 200 metres wide and long, tens of metres thick, and may contain several million tonnes of ore. All lie on the surface of the seabed, and many are only 1-2km below water level. At that depth technology developed for the offshore oil industry can nowadays be employed for mining. In particular, the deep-water pumps and suction pipes developed to bring subsea oil up to the surface can be used in the riser pipes needed to bring minerals (mixed with water) up from a massive-sulphide mine. The oil industry has also developed remotely-operated vehicles to make trenches for seabed pipelines, which can be adapted for cutting ore, even though it may lie much deeper, at, say, 1.5km down. In general the technology in the machines needed to carry out deep-water mining is no longer exotic. Woods Hole Oceanographic Institution has a vehicle that can reach depths of 11km.
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.