Updated: Jun 28, 2020
The United Nation’s Convention on the Law of the Sea 1982 (‘UNCLOS’ or the ‘Convention’) codified the rights and responsibilities of States in relation to the ocean and its natural resources.[i] UNCLOS defined certain areas as res nullius or res communis, whilst establishing protocols for passage, exploration and exerting sovereignty.
Most importantly, the Convention sought to achieve universality within its provisions.[ii] However, industrialised states challenged a number of provisions resulting in nine years of negotiations.[iii] Consequently, Part XI of UNCLOS remained unratified by States.[iv]
This article aims to evaluate the objections raised to Part XI, and evaluate to what extent, the resulting 1994 New York Agreement (the ‘1994 Agreement’) addresses them. Some concerns were addressed in the subsequent agreement however, major ambiguities nullified well-intentioned amendments.
United States’ Historical Objection to Part XI
Part XI of UNCLOS outlined the rights and obligations of States within the deep seabed including treatment of resources and settlement of disputes. The primary objector to Part XI was the United States (‘US’) who refused to recognize it despite the 168 State parties to the Convention. The Raegan Administration consistently objected to Part XI on the basis that it did not reflect the economic needs of the US. This included the fact that they considered it a “vehicle for advancing an agenda promoted by the Soviet Union”.[v] Accordingly, the US has not ratified either UNCLOS, or the 1994 Agreement.[vi]
Further, the US sought monopolisation of underwater energy resources, with certain provisions, namely those in relation to the Council, reducing their ability to do so. This desire is evidenced by President Truman’s 1945 proclamation in relation to the continental shelf.[vii] Consequently, the US accepted the Convention as customary international law excluding Part XI.[viii] Instead, the US chose to implement domestic measures distinct from those expressed in Part XI. This remains the position of the US despite recommendations from the Senate’s Foreign Relations Committee to do accede and ratify the treaty.[ix]
Eventually, the US began lobbying for amendments to Part XI of UNCLOS, most prominently during the Clinton Administration.[x] A series of informal sessions were convened by the United Nation’s Secretary-General commencing in 1991. The objective of the consultations was:
‘…to achieve wider participation in the Convention from the major industrialised States in order to reach the goal of universality’.[xi]
The 1994 Agreement was adopted by the General Assembly through Resolution 48/263 on July 1994.[xii] The 1994 Agreement is largely procedural,[xiii] and has been ratified by 150 parties.[xiv] Despite the US’ refusal to ratify either, they retained provisional membership with the International Seabed Authority and its subsidiary organs.[xv]
Relationship with UNCLOS III Part XI and the 1994 Agreement
With the development of the 1994 Agreement, many questioned how the new instrument would operation with UNCLOS. This concern was addressed through Article 2 of the New York Agreement which provides that:
“The provisions of this Agreement and Part XI shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part XI, the provisions of this Agreement shall prevail.”
As part of the original UNCLOS provisions in relation to the deep seabed, the funds of the Authority included contributions made by State members. What was contentious for the supplementary agreement was the calculation of these contributions, and how the assessment required contributions from certain states moreso than from others. Article 171 of UNCLOS provides that the funds of the Authority shall include contributions made by members in accordance with Article 160(2)(e). This provision stipulated the Assembly has the power to assess member’s contributions in accordance with a scale used for the regular budget of the United Nations until which the Authority has the sufficient income from other sources to meet its administrative expenses.
Many objections to these provisions were raised. First, the wording of art 160(2)(e) allowed the Authority to request contributions according to what a State contributes to the United Nations, despite landlocked States having little interest relative to ocean States. As such, this has the effect of allowing ocean States the opportunity to hold more influence over the Authority. Second, the provision grants the Authority the discretion to determine at which point they have sufficient income. The 1994 Agreement failed to sufficiently address these concerns.
Section 1 of the 1994 Agreement required UNCLOS to be ‘cost-effective’. However, no definition, or examples of cost-effectiveness are expressly alluded. Other sections provide little assistance. Section 7 merely requires funds ‘necessary to cover the administrative expenses of the authority.’ Further, section 9 establishes the Finance Committee represented by the five largest financial contributors. This furthers the influential divide.
A principle underpinning the law of the sea, is the fact that the ocean’s natural resources are the common interests of mankind; they are res communis. This principle was codified within Article 136 of UNCLOS, and further extrapolated upon by Article 137. Disapproval of these provisions from industrialised nations stems from the allowance of developing nations to exert equal control over natural resources. While prima facie, this ensures res communis is adequately upheld, industrialised States inevitably contribute more to the Authority. Without their contributions, UNCLOS would be inoperable.
Subsequently, the amendments within the 1994 Agreement were focused on the rights of those industrialised States (namely sections 2 and 6 relating to how contractors may be utilized for control over certain areas). With industrialised States holding power over the Authority, they have a larger bargaining power in the allocation of those resources.
To address the inequalities between developing and developed States, UNCLOS sought to break down barriers to technology access. This was implemented in the form of article 144 which allows the Authority to take measures to acquire technology and scientific knowledge ‘relating to activities in the area.’ The article imposes an obligation on States to cooperate in the transfer of technology. A major concern in implementation of this provision was how a State may protect its security interests in the transfer of technology and scientific knowledge.[xvi] Both the United Kingdom and the US placed these reasons at the forefront when objecting to Part XI.[xvii]
However, some continue to contend that the 1994 Agreement continues to “hinder seabed development and remains inimical to American interests”.[xviii] The primary provision with regard to the transfer of technology in the New York Agreement is section 5(1)(b). First, it is important to note that this provision begins with the phrase “In addition to the provisions of article 144 of the Convention, transfer of technology for the purposes of Part XI shall be governed by the following principles…” The included reference to Article 144 of UNCLOS undermines the relationship provision contained within Article 2 of the New York Agreement. Rather than the provision of the New York Agreement prevailing, in this instance, the original obligations contained in article 144 remain in force. The effect of this, is the fact that the transfer of technology remains an obligation on States. Section 5(1)(b) does however, delineate the circumstances further when a State is required to fulfil this obligation. This includes were the Enterprise or developing States are unable to obtain deep seabed mining technology.
What the amendments demonstrate is that industrialised States and private mining contractors remain responsible for cooperation with developing States. The compulsory element remains, but these powers are granted subjectivity in how they facilitate the acquisition of said technology. In any event Article 144 remains vague despite the clarifications in the 1994 Agreement. Article 144 highlights the ‘advancement of technology’ as one of the foregoing reasons for compulsory shared knowledge, however, this is not extrapolated upon within the amendments. With the Authority retaining the power to request co-operation from States, the Authority’s power is inherently quite expansive, thus undermining a State’s voice in the compulsory transfer of technology.
Another contention raised by industrialised States was the composition of the Council, the executive organ of the Authority. The Council was comprised of 36 elected members to represent certain groups. Four members were to be from State Parties who in the last five years had absorbed more than 2% of the world’s consumption or retained net imports exceeding 2% of the world’s total imports of commodities (UNCLOS, art 161(1)(a)).
A further four members were to be from eight of the State Parties who held the largest investments in activities in the area, inclusive of one State from the Eastern European region (UNCLOS, art 161(1)(b)). Four members were to be from major net exporters of minerals in the area, inclusive of two developing States (UNCLOS, art 161(1)(c)). Six members were to be from developing State parties representative of special interests (UNCLOS, art 161(1)(d)). Finally, the remaining eighteen members were to be elected according equitable geographical distribution of seats (UNCLOS, art 161(1)(e)).
For the US, the composition of the Council was directly against its national interests,[xix] as it required fighting for a seat on the Council. The amendments in the 1994 Agreement quashed these concerns. The Council was reduced to 35 members, broken into four chambers comprised of States representing certain interests. The US was guaranteed a seat in the chamber consisting of members of the world’s largest economies on the proviso that it ratified UNCLOS.[xx] All questions must be adopted by two-thirds majority. Which, in effect, granted each chamber a veto power.[xxi]
Funding of the Enterprise
Article 153 of UNCLOS specified activities in the area were to be carried out by the Enterprise in association with the Authority and member states. Article 9 to annexure III of UNCLOS further specified that the:
“Enterprise shall be given an opportunity to decide whether it intends to carry out activities in each reserved area. The Enterprise may decision to exploit such areas in joint ventures with the interested State or Entity.”
Reading these provisions concurrently, it is apparent States capable of funding more activities in the area hold larger portions of time with the Enterprise. Inherently, this yields itself to the possibility that activities in the area may be monopolised by certain states holding larger financial stakes in those activities. This has the effect of creating competition between industrialised States, developing nations, and private corporations in the exhibition of these areas. This concern was addressed in the 1994 Agreement by ensuring that the Enterprise must operate through joint venture activities in the absence of political motivations.
While the 1994 Agreement was intended to garner the international support of the major, industrialised States back towards the promotion of UNCLOS, certain original, objections remain partially unaddressed. Whilst the original regulatory bodies remain to ensure supervision, accountability and regulation in the operation of UNCLOS, the amendments do not substantially address existing ambiguities.
Written by Makaela Fehlhaber
Co-Chair and Founder
End Notes [i] A. Tahindro, ‘The Implementation of UNCLOS in the Indian Ocean Region: The Case of Madagascar’ in A. A. Yusaf, African Yearbook of International Law (African Foundation for International Law, 2006). [ii] A. Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ (2005) 54(3) The International and Comparative Law Quarterly 563, 584. [iii] E. D. Williamson, ‘The Controversial Part XI’ (2008) Texas Review Law and Policy, 12. [iv] P. M. Dupuy and J. E. Viñuales, International Environmental Law (Cambridge University Press, 2018). [v] F. J. Gaffney Jr., Ronald Reagan was Right: The Law of the Sea Treaty was and remains Unacceptable (Senate Paper) <https://www.foreign.senate.gov/imo/media/doc/GaffneyTestimony071004.pdf>. [vi] R. Ganan Almond, ‘U.S. Ratification of the Law of the Sea Convention’, The Diplomat (Blog Post, 24 May 2017) <https://thediplomat.com/2017/05/u-s-ratification-of-the-law-of-the-sea-convention/>. [vii] D. Bandow, ‘The Law of the Sea Treaty: Inconsistent with American Interests’ CATO (Article, 8 April 2004) <https://www.cato.org/publications/congressional-testimony/law-sea-treaty-inconsistent-american-interests>. [viii] R. Ganan Almond, ‘U.S. Ratification of the Law of the Sea Convention’, The Diplomat (Blog Post, 24 May 2017) <https://thediplomat.com/2017/05/u-s-ratification-of-the-law-of-the-sea-convention/>. [ix] D. B. Sandalow, ‘Law of the Sea Convention: Should the U.S. Join?’, Brookings (Article, 19 August 2004) <https://www.brookings.edu/research/law-of-the-sea-convention-should-the-u-s-join/>. [x] E. M. Hudzik, ‘Treaty on Thin Ice: Debunking the Arguments’ (2010) 9(2) Washington University Global Studies Law Review 353-370.
[x] United Nations, The Law of the Sea: Official Texts on the United Nations Convention on the Law of the Sea (Official Texts, New York).
[x]UNGA, Agreement relating to the implementation of Part XI of the United Nations Confention on the Law of the Sea of 10 December 1982, GA Res A/RES/48/263, UN GAOR, 48th sess, Agenda Item 36 (17 August 1994, August 17).
[x]James Crawford, Brownlie’s Principles of International Law (Oxford University Press, 8th ed, 2012) 326.
[x] United Nations, Law of the Sea Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (2020) < https://www.un.org/Depts/los/convention_agreements/convention_overview_part_xi.htm>.
[x]M. A. Brown, The Law of the Sea Convention and US Policy (Congressional Report, DATE 2006) < https://www.gc.noaa.gov/documents/gcil_crs_2006_report.pdf>.
[x]D. H. Yarn, ‘The Transfer of Technology and UNCLOS III’ (1984) Georgia Journal of International and Comparative Law 121,135.
[x]K. Gryzbowski, ‘Reflections on UNCLOS III’ (1982) New York Journal of International and Comparative Law 581, 582.
[x] D. Bandow, ‘Faulty Repairs: The Law of the Sea Treaty is Still Unacceptable’ CATO (Article, 12 September 1994) <https://www.cato.org/publications/foreign-policy-briefing/faulty-repairs-law-sea-treaty-is-still-unacceptable>.
[x]J. M. Van Dyke, ‘U.S. Accession to the Law of the Sea Convention’ (2008) 22 Ocean Yearbook 47. 55.
[x] National Space Society, White Paper: Rejecting the Law of the Sea Treaty (LOST) (White Paper, 2009) <https://space.nss.org/media/National-Space-Society-LoST-WhitePaper.pdf>.
Additional: United Nations Convention on the Law of the Sea, 1833 UNTS 3 (opened for signature 10 December 1982, entered into force 16 November 1994). Vienna Convention on the Law of Treaties, 1155 UNTS 331 (entered into force 27 January 1980).