U.S. POLICY AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

George Washington International Law Review, The, 2007 by Noyes, John E

Several more forceful responses to the critics of the Convention's obligatory dispute settlement provisions are in order. First, the U.S. has already accepted the Convention's dispute settlement system with respect to certain significant categories of disputes (by ratifying the 1995 Fish Stocks Agreement, which incorporates the Convention's dispute settlement provisions).54 second, one can make a strong case that third-party dispute settlement has led to decisions that strengthen the Convention's rules and will lead to many more. For example, in its merits decision in the Saiga case, the ITLOS reinforced the concept of the EEZ as a zone of limited coastal state jurisdiction, which extends neither to customs matters nor generally to all matters affecting a coastal state's "public interest."55 Third, the U.S. itself might find the Convention's dispute settlement system useful. For instance, arbitration could be threatened or pursued in order to oppose and publicly expose other states' illegal straight baseline claims.56 The Convention's dispute settlement provisions can help prevent the compromises embodied in the Convention from unraveling.

The ISA, the institutional component that led the Reagan administration not to support the Convention in 1982, has remained a obstacle for a few vocal critics of the Convention in America. Although the ISA is the only new body created by the Convention that is explicitly authorized to make policy, its mandate is narrow, related to steps furthering security of tenure for those seeking to explore for minerals or mine on the seabed beyond the limits of national jurisdiction. The Part XI Implementation Agreement, which is now read together with the Convention to govern the ISA's operations, rectified all of the Reagan administration's objections to the original Part XI (the administration's only objections to the Convention).57 The objectionable provisions related to an asserted lack of guaranteed access for qualified private miners, the possibility of payments to national liberation movements, mandatory technology transfers, production limitations, and a review conference that could amend Part XI over the objection of the U.S. or other states. The George W. Bush administration has emphasized the 1994 changes with respect to these provisions. It has also emphasized 1994 changes concerning the U.S. role in how the ISA makes its decisions, changes that give the U.S. an effective veto over ISA decisions. Since its inception, the ISA has operated on a low budget and has confined its activities to its specified mandate,58 behavior that should reassure skeptics who fear an expensive, bloated international bureaucracy.

Despite the ISA's limited mandate and its relative insignificance in relation to other matters the Convention addresses, however, the Authority remains a concern for Convention opponents in the U.S. Some of the opposition is simply bizarre. One critic testified at a congressional hearing that the U.S. should be greatly concerned about the development of an ISA military arm.59 Although some opponents simply misconstrue the relevant treaty provisions,60 it is doubtful that the opposition will disappear, even when misapprehensions about the scope of permitted ISA activities are corrected. The opposition is in line with the Jacksonian strand of foreign policy that has been extremely skeptical about U.S. participation in any international organization. Some critics abhor the idea of the U.S. joining any treaty that contains the words "common heritage," or that obligates the country to participate in an international regulatory body. It is also questionable whether someone who opposes any international regulatory body will be convinced that the significantly revised Part XI system is acceptable, for the ISA does have more extensive responsibilities than simply registering mine claims on a first-come, first-served basis. One practical response to this argument is that the 1994 system is, and will continue to be, the system used to govern eventual exploitation of mineral resources. All other major developed states have accepted the Convention and are operating under the 1994 seabed mining regime. Attempts to change any established, stable allocation rule face serious political obstacles. Under the now-entrenched revised ISA regime, these obstacles seem insurmountable for the foreseeable future. If the U.S. does not accept this system, it is hard to envision an American company pursuing any alternative, inevitably less secure, route to deep seabed mining.61 The institutional features of the Convention (as revised by the 1994 Implementation Agreement) are not onerous, and they provide benefits to the U.S.