The International Sea Bed AuthorityWe're very used by now, in the west at least, to breathless media reports detailing how 'the arctic is shrinking'. This is despite many surveys over the past few years showing that it is not. The ice at the top of the world is falling back in comparison to previous seasons in some areas, but it seems actually to be growing in others, as do some glaciers.
A simple explanation for all of this seems beyond the wits of clever men and women. Some have suggested a change in the salinity of the ocean; some have suggested the influence of undersea volcanoes. Interestingly, given that solar sunspots are slow in appearing these days--solar cycle 24 is overdue, and overdue or inactive solar cycles historically correlate with cold periods--some have suggested that we might be in for a spot of global cooling anyway.
None of this has stopped stories about the 'North-West passage' opening up. This has had policy effects. The idea that the arctic may soon be navigable all the time, and the proof that there are huge reserves of oil under it, has brought a basic disagreement between countries into focus.
The United States, as with several other American countries, cannot constitutionally accept many of the assumptions that go with the mental world of international law. In the USA, the constitution is sovereign, as the foundation of the republic and the instrument of the people. It follows that an outside authority cannot ultimately order American troops about or legislate for the USA.
The USA could, of course--on the model of the Great Lakes Commission--place key interpretations and protocols on a federal law basis and associate itself with that which it could not join, as the second Roosevelt once proposed for the League of Nations. Yet I can't think of an American Congressional majority that would ever find advantage in doing do.
America's legal difficulties with joining international bodies are accompanied by a cultural assumption that no one ever should legislate for the USA which is bound up very strongly with that country's conception of liberty.
This means that, the Canadian-American Great Lakes Commission apart, the USA could not ratify the UN Convention on the Law of the Sea (the UNCLS). It even had trouble with NATO, and narrowly avoided the Bricker amendments in the 1950s, thanks to Majority Leader Lyndon Johnson.
If a country does not ratify the law of the sea, it is bound to find that many waterways--the routes of commerce, energy and power, predominantly, on this planet--are a sort of common property. The USA bears the cost of enforcing this commonalty in places like the Malacca Straits in Asia, and the Straits of Hormuz, and in the Arctic.
Other countries have ceded authority in a two step process. Firstly, under the UNCLS, they can identify an area of between 200 and 350 miles into the sea where the seabed is theirs. Russia has followed this to the letter in the arctic. This document, which is the source of the picture at the top, details the international effort to map the arctic for ownership. It comes from the International Boundaries Research Unit at Durham University, in the north of England.
Secondly, they can then submit all unclaimed areas to a body called 'The International Seabed Authority', which can administer 'the Area'. It is based in Kingston, Jamaica, and is operational. The Area is the global unowned seabed. Under Part XI of the founding Treaty, it is all the area outwith national jurisdiction.
The only alternative is to build your own huge navy and challenge the USA, and then to plant yourself in a region. China is doing the first part of this right now, which is partly why China has taken to thinking of itself as a sea power and why India is engaging in joint naval exercises with Americans, Australians and others. China and Pakistan, and India with Afghanistan, are also developing deep-sea ports on a strategic basis.
All of this gives rise to some interesting questions, which are not necessarily related. I've put them below.
1) If global cooling continues, or advances, and the ice sheet returns, will states have lost their money?
2) If the USA cannot ratify the UNCLS, will China, Canada and Russia then deploy their navies in an anti-US posture, and await the inevitable clash?
3) If all goes smoothly, but countries do not delineate their territory in time, what happens if oil is found in 'the area' and the UN then comes into possession of a large amount of money?
4) Just how autonomous is the International Seabed authority? Is it a virtually independent, potentially rich, world legislative agency?
I have time on my hands these days, and will have a read of the relevant documents and treaties to try and come up with an answer, just as an exercise. If anyone out there could save me time, and show a link to a site that may explain things, I would be grateful for the favour.
Comments
In 1945, the sovereign authority of a nation at sea was limited to the territorial sea (at that time generally limited to 3nm) and the warships and government-owned ships under its flag. In 1945, Truman extended control over the continental shelf in an unfortunately vague proclamation with regard to depth and distance. It was assumed by virtually everyone that the governing factor was the geological continental shelf: the submerged continental crust that generally is limited to a depth of abut 200 meters. The 1958 Geneva Convention introduced the 200 meter isobath into international law, but also included the continental shelf to the depth at which it could be exploited.
The 1958 convention is the law that the US accepted, and it referred to the geological continental shelf. The later UN Convention on the Law of the Sea introduced several new features for those who join the convention:
• It changes the definition of the continental shelf from a geologic one to a legal definition based on geologic measurements that extend the areas subject to national control;
• It automatically designates the seabed within the 200nm exclusive economic zone as continental shelf even if there is no geological shelf in that area;
• It expands the legal definition of continental shelf to include not just the geologic shelf but also the soil of the continental slope and continental rise that reach out to the abyssal plain. It recognizes geologic and bathymetric measures to determine the outer limit subject to a 350 nm limit and recognition beyond that limit in special circumstances;
• It establishes a commission of scientists to examine claims on behalf of all parties. If the commission determines that claims are proven to be in accord with the convention, then the claim will be legally recognized by all parties to the convention.
The two key points brought by the convention are introducing the new legal definition of the continental shelf and the mechanism for obtaining recognition of national claims to the shelf from all members of the convention.
Obtaining international recognition of the outer limit of the shelf that is critical. Businesses and lenders re picky about demonstrating clear title or right to exploit resources in international waters.
This isn't a matter of conjecture - beginning in the Reagan Administration we were having private interviews with bankers who normally finance mineral development and, later, with those who finance deep water drilling. All potential providers of development capital have said that there needs to be international recognition of the right to develop a seabed deposit and a process for obtaining title to the recovered minerals. This is why the oil and offshore industry in the US have uniformly supported US ratification of the LOS Convention.
This is even more the case with regard to the minerals of the deep ocean floor. Under international law since the time of Grotius, there was no process by which to obtain recognition of exclusive right to develop seabed minerals beyond the territorial sea or, after 1958, the continental shelf. In 1980 all four seabed mining operations were formed as US consortia. Once the LOS Convention came into force, all foreign partners withdrew and the US consortia collapsed. Now there are 8 national and international groups working through the International Seabed Authority, including the former German partners of one of the original US consortia. The sponsoring states include Germany, France, Japan, China, Russia, Korea, India and a multiparty group of east european countries.
As with the continental shelf beyond 200 nm, the key issue is international recognition of exclusive right to develop a deposit and recognition of title to the recovered minerals. It has always been recognized that this could not be achieved under unilateral US legislation. Once the Seabed Authority was established and issued its rules and regulations, it became clear that it provided the necessary legal basis for mining the international sea floor. In practice as much as in international law, the LOS Convention's International Seabed Authority is the sole mechanism for the development of resources beyond the continental shelf is
The convention has been in force for nearly 14 years, so there is quite a bit of history as to how the ISA operates under the Convention, the 1994 Agreement on Implementation of the seabed provisions and the Rules and Regulations of the Authority. In practice, it operates in accordance with the criteria originally established by Ronald Reagan that he sent with us to the final negotiations on the convention in 1982.
What will joining the convention gain for the United States with regard to the seabed? Access to international capital and partners for US private industry. It will open up the possibility of a domestic strategic and critical minerals industry, and it will compel other nations to recognize our sovereign control over the extended continental shelf in the arctic, in the sea south of Alaska, off the Atlantic coast and around the US territories in the Pacific. What do we lose? According to the Navy, US industry, geologists, financiers, and the US administration from president Bush on down, we lose nothing.
You clearly know your stuff. I think that law is the best way to conduct international affairs, and when it runs with enlightened self interest I can't understand why states don't embrace it.
I tried to suggest constitutional reasons why congresspeople and US political actors might object in the post. I have a feeling, after reading your comment, that these could be overcome, and I suggested one way in the post.
Thank you very much for your contribution.