Evidence: Recently Added
Mandatory Technology Transfers: Although the 1994 Agreement purports to modify some troubling LOST provisions on the obligatory sharing of sensitive information and technologies, it fails to address, let alone alter, other coercive provisions. These include LOST’s requirement that states parties “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”
Neither does the Agreement speak to LOST’s requirement to transfer information and perhaps technology pursuant to the Treaty’s mandatory dispute resolution mechanisms. Parties to a dispute are required to provide the tribunal with “all relevant documents, facilities and information.” This amounts to an invitation for competitors to bring the United States and/or its companies or adversaries before a LOST tribunal to obtain sensitive data and know-how. These are hardly the sorts of safeguards upon which President Reagan had insisted.
Presumably, it is for these reasons that the 1994 Agreement does not explicitly amend LOST. Rather, the Agreement states that “The provisions of this Agreement and Part XI [of LOST] shall be interpreted and applied together as a single instrument.”
At the time the Agreement was signed, a representative of the American ocean mining industry cited this shortcoming in testimony before Congress: “[The 1994 Agreement] does not even purport to amend the Convention. It establishes controlling ‘interpretive provisions’ that will control in the event of a dispute. This is not an approach that gives confidence to prospective investors in ocean mining.” (Emphasis added.)
Neither does the 1994 Agreement require any of the LOST tribunals to abide by the Agreement. This increases the likelihood that such panels, when hearing disputes between parties, will view LOST itself as the basis for resolving the dispute, and not the 1994 Agreement.
That is especially so since roughly sixteen percent of the parties to LOST – fully 25 member countries – have yet to sign the 1994 Agreement. It is far from clear on what basis these countries could be expected to view the Agreement’s purported revisions to the Treaty as legitimate. How, for instance, would resolutions be achieved in disputes between countries that are party to both LOST and the Agreement, on the one hand, and countries that are party only to LOST, on the other? At the very least, the latter could legitimately challenge claims by the United States (or others) to be bound by terms other than those contained in the Law of the Sea Treaty’s agreed text.
LOST is a vast and complex undertaking, with obligations and implications that go far beyond the codification of common navigation rights and arrangements that were the initial impetus for the Treaty.
We cannot safely ignore the fact that, during its negotiation, LOST became a vehicle for advancing an agenda promoted by the Soviet Union and so-called “non- aligned movement” during the 1970s, known as the New International Economic Order (NIEO). The NIEO was a classic “united front” effort aimed at undermining the economic and military power of the industrialized West – particularly the United States – in the name of a centrally planned, global redistribution of wealth to the benefit of developing nations.
Toward this end, LOST creates various supranational bodies to develop and enforce its provisions, complete with an executive branch, legislature and judiciary. These agencies operate on the basis of one-nation/one-vote – an arrangement that has proven in the United Nations and elsewhere to be highly disadvantageous to the United States.
Protecting American Interests: Because we are the main global maritime power, our interests demand that we consider the global effect of the Convention’s rules and their interpretations; there are a number of issues that are of greater concern to us than to most other countries. It is not prudent for us to sit idly by on the sidelines and rely on others to protect our global interests from the inside. For example, despite our close security relationship with most of its member states, there are disturbing signs that the European Community may try to shift the Convention’s balance in a sharply coastal direction in derogation of the freedom of navigation beyond the territorial sea and free transit of international straits.
The real question is: What are the additional rights and opportunities that we would enjoy as a party to the Convention? In this connection, we might ask ourselves: What is it that we want other countries to do and not do?
The answer has long been quite simple. We want maximum freedom to navigate and operate off foreign coasts without interference.
We want that freedom for security purposes. If we mean to deter and confront threats to our security in the far corners of the globe, then we need to be able to get there and to operate there. The precise nature of the threats may change. But so long as our interests demand that we operate far from our shores, we want to minimize the cost and uncertainty of getting there and operating there.
We also want that freedom for economic purposes. Our economy is dependent on international trade. Much of that trade moves by sea. Our trading partners may change, but so long as our interests demand that we move raw materials and products to and from the far corners of the globe, we want to minimize the cost and uncertainty of the trip for any ship that carries our trade. We want security of supply and the lowest possible cost for delivering both our imports and our exports. And many sectors of our economy are increasingly dependent on the use of undersea telecommunications cables and accordingly on the freedom to lay and maintain them throughout the world.
Judicial and arbitral bodies: Interpretations rendered by judicial and arbitral tribunals established under the Convention will also influence the perceptions and behavior of lawyers and governments around the world and the future understanding of the law. While the actual judgment may be binding only on the parties to a case, the effect of a judicial or arbitral decision on perceptions of the law is not limited to parties to a case or even to parties to the Convention. By joining the Convention the United States would have the right to nominate and participate in the election of judges to the International Tribunal for the Law of the Sea (ITLOS) that sits in Hamburg, as well the right to add names to the lists from which arbitrators are selected under the Convention. Moreover, by joining the Convention, the United States would enhance the likelihood that judges and arbitrators would pay serious attention to its views regarding the interpretation and application of the Convention, even in cases where the United States is not a party to the dispute and has not exercised its right to intervene under the Convention.
Thus, even though the United States opts for arbitration under the Convention rather than accepting the jurisdiction of ITLOS, by joining the Convention our influence will extend well beyond any arbitration to which we may be a party. Moreover, we gain the right to seek urgent temporary provisional measures from ITLOS pending the constitution of an arbitral tribunal. As the Senate recognized when it approved the existing Implementing Agreement regarding fisheries to which we are already party, this enhances our leverage over foreign fishing on the high seas adjacent to our exclusive economic zone. Becoming party to the Convention extends that leverage to fishing vessels flying the flag of any country that is party to the Law of the Sea Convention.
The Continental Shelf: There is an extensive continental margin beyond 200 miles off the coast of Alaska and elsewhere off the coast of the United States. As a party to the Convention, we will be able to submit the results of our scientific studies regarding the seaward limits of the continental margin to the Commission of experts established by the Convention. Once we are satisfied with the outcome of our exchanges with the Commission, we can exercise the right to declare limits that are final and binding on all parties to the Convention. This will increase the certainty of our control and the willingness of private capital to make the substantial investment required to explore and exploit areas as deemed suitable for development.
Moreover, as a party to the Convention, we acquire the right to nominate and participate in the election of members of the Commission, as well as the right to comment on both the procedure and the substance of the Commission’s work. These rights are important because we have a major interest in influencing the review of continental margin claims around the world before they become final and binding, in order to ensure that reasonable claims are confirmed and made more secure, and that excessive claims do not limit our own access to the areas in question for economic, scientific, or other purposes. Mr. Chairman, the Canadian and Russian Governments have every right to seek to use the Commission to advance their interests. But Alaska is caught in the middle, and our capacity to protect our interests off Alaska and in the Arctic generally will be enhanced by getting on the inside and making sure our concerns are heeded.
Myth: The United States is giving up sovereignty to a new international authority that will control the oceans.
Nothing could be further from the truth. The United States does not give up an ounce of sovereignty in this Convention. Rather, the Convention solidifies a truly massive increase in resource and economic jurisdiction of the United States, not only to 200 nautical miles off our coasts, but to a broad continental margin in many areas even beyond that. The new International Seabed Authority created by this Convention, which, as noted, has existed for a decade and will continue to exist regardless of United States actions, deals solely with the mineral resources of the deep seabed beyond national jurisdiction. That is an area in which we not only have no sovereignty but also in which we and the entire world have opposed extension of national sovereignty claims. Moreover, to mine the deep seabed minerals requires security of tenure for the billion dollar plus costs of such an operation. Our industry has emphatically told us that they can not mine under a 'fishing approach' in which everyone simply goes out to seize the minerals. The Authority was a necessary specialized agency, of strictly limited jurisdiction, to deal with this need for security of tenure. Quite contrary to the recent testimony of one witness before the Senate Committee on Environment and Public Works, the Seabed Authority would not have "the exclusive right to regulate what is done, by whom, when and under what circumstances in subsurface international waters and on the sea-floor."5 Rather, the Authority is a small, narrowly mandated specialized international agency that, emphatically, has no ability to control the water column and only has functional authority over the mining of the minerals of the deep seabed beyond national jurisdiction. Again, this is a necessary requirement for seabed mining, in an area beyond where any nation has sovereignty, to provide security of tenure to mine sites, without which mining will not occur6;
In conclusion, from an energy perspective we see potential future pressures building in terms of both marine boundary and continental shelf delineations and in marine transportation. We believe the LOS Convention offers the U.S. the chance to exercise needed leadership in addressing these pressures and protecting the many vital U.S. ocean interests. Notwithstanding the United States’ view of customary international law, the U.S. petroleum industry is concerned that failure by the United States to become a party to the Convention could adversely affect U.S. companies’ operations offshore other countries. In November 1998, the U.S. lost its provisional right of participation in the International Seabed Authority by not being a party to the Convention. At present there is no U.S. participation, even as an observer, in the Continental Shelf Commission— the body that decides claims of OCS areas beyond 200 miles— during its important developmental phase. The U.S. lost an opportunity to elect a U.S. commissioner in 2002, and we will not have another opportunity to elect a Commissioner until 2007.
In the Methane Hydrate Research and Development Act of 2000 Congress mandated the National Research Council to undertake a review of the Methane Hydrate Research and Development Program at the Department of Energy to provide advice to ensure that significant contributions are made towards understanding methane hydrates as a source of energy and as a potential contributor to climate change. That review is now underway. The U.S. Navy has also done work on gas hydrates, as has the U.S. scientific community, including universities such as Louisiana State University and Texas A&M. Significant research is also being conducted by scientific institutions in Japan. The United States needs to have a seat at the table of the Continental Shelf Commission in order to influence development of any international rules or guidelines that could affect gas hydrate resources beyond our EEZ.