Law of the Sea Convention (LOSC)

Under customary international law, as reflected in the Law of the Sea Convention (LOSC), there are different regimes for the management of activities pertaining to the seabed, including the continental shelf which is subject to the jurisdiction of coastal nations and the Area, which is beyond the national jurisdiction of coastal nations. The LOSC provides the legal framework for activities on the seabed such as the laying of cables and pipelines, and the exploration, development, and exploitation of seabed resources. The International Seabed Authority (ISA) was established to facilitate international cooperation in the management of mineral development in the Area.

Among the objections to the seabed mining regime were that it was based on a controlled centrally planned economic model that preempted free-market private enterprise, and it did not give the United States and other states with major economic interests in seabed mining a voice in decision-making commensurate with their interests. On July 29, 1994, the United States signed the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. This agreement substantially reforms the seabed mining provisions of the 1982 Convention, which the United States found objectionable. The United States also objected to the requirement that seabed mining applicants would have to turn over one-half of their mine site to the Seabed Authority to be developed by its operating arm, the Enterprise, and transfer technology to the Enterprise or possibly to developing countries.

In the years that elapsed since the Convention was adopted certain significant political and economic changes had occurred which had had a marked effect on the regime for deep seabed mining contained in the Convention. Prospects for commercial mining of deep seabed minerals had receded into the next century, which was not what was envisaged during the negotiations at the Third United Nations Conference on the Law of the Sea. The general economic climate had been transformed as a result of the changing perception with respect to the roles of the public and private sectors. There was a discernible shift towards a more market-oriented economy. In addition, the Secretary-General made mention of the emergence of a new spirit of international cooperation in resolving outstanding problems of regional and global concern.

To address certain difficulties with the seabed mining provisions contained in Part XI of the Convention, which had been raised, primarily by the industrialized countries, the Secretary-General convened in July 1990 a series of informal consultations which culminated in the adoption, on 28 July 1994, of the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. The Agreement entered into force on 28 July 1996.

The Agreement fundamentally changed the seabed mining regime of the Convention to address each of the American concerns. The Agreement provides the United States and other countries with major economic interests influence over future decisions on deep seabed mining. The new Agreement guarantees a seat on the Council for the United States. It provides for the administration of the seabed mining regime to be based on free-market principles drawing on established international trade rules. The Agreement scales back the structure of the organization to administer the mining regime. It provides the United States with a veto on decisions related to budget and finance, and decisionsrelated to adoption of rules and regulations as well as decisions on the distribution of royalties. The Agreement replaced the centralized economic planning approach with market-oriented principles and eliminated the production control and mandatory technology transfer provisions.

The Deep Seabed Hard Mineral Resources Act [DSHMRA] establishes an interim domestic legal regime for deep seabed mining pending adoption of an acceptable international regime. It is this regime that long prevented the ratification of the United Nations Convention on the Law of the Sea (UNCLOS). The DSHMRA sets forth necessary criteria for an international regime to be acceptable to the United States. These include access for U.S. citizens to deep seabed resources and assured continuity in mining activities undertaken by U.S. citizens prior to an international regime under terms, conditions, and restrictions which do not impose significant new economic burdens.

With regard to minerals on the deep seabed, seabed nodules contain nickel, copper, cobalt and manganese–minerals important to many industrial uses. No commercial deep seabed mining is currently conducted, nor is such activity anticipated in the near future. However, four licenses have been issued under the Deep Seabed Hard Mineral Resources Act for exploration of seabed areas in the Clarion- Clipperton zone of the south Pacific Ocean.

The Law of the Sea Convention has been before the Senate since 1994 and has yet to receive consideration on the Senate floor. This has happened despite repeated statements by successive Presidents, Defense Secretaries, Secretaries of State, and Chairmen of the Joint Chiefs of Staff that the treaty is an urgent priority. It has happened despite virtually unanimous support from ocean industries, environmental groups, and international legal scholars.

Opponents claim that the Law of the Sea Treaty is a dangerous treaty that we need to reject. This treaty hampers the operations of the Navy and it has the potential to hamper the efforts of the proliferation security initiative. It would allow foreign vessels and warships passage rights into our territorial waters. It creates regulation and taxation by an international body, and it presents a legal danger for American businesses through exposure to the international court system. The International Seabed Authority (ISA) would regulate 70% of the Earth's surface-placing seabed mining, fishing rights, and oil exploration under control of a global bureaucracy. The ISA has the power to levy a global tax that would be paid directly to the ISA by companies seeking to mine the world's oceans.

Opponents claim that in order to be granted mining rights by the ISA, the applicant must submit detailed plans and exploration research information along with annual fees in the millions of dollars. Additionally under LOS, should there be disputes among companies, American businesses that conduct deep seabed mining operations could find themselves subject to an international court system that would hold them accountable and liable for any infractions. LOS also creates a new global tax court to settle disputes that arise under the treaty. This is an unprecedented action - the collection of taxes by an international body to fund its own research, as well as to redistribute the world's wealth to developing nations.