Law of the Sea - The contentious issue of deep sea mining

Although the United States had been a leader in the international community's effort to develop an overall legal framework for the oceans in the Third United Nations Conference on the Law of the Sea, deep divisions arose between developing and developed nations over the establishment of an international organization to regulate the exploration of deep sea mining in international waters (Part XI of the Treaty). These divisions were so deep that the United States and other industrialized countries declined to formally sign the treaty, although endorsing the consensus that had been reached by the conference on other areas covered by the treaty.

On the economic and commercial front, the industrialized nations sought a more market-oriented regime. They objected to provisions for mandatory technology transfer, production limitations from the seabed, what they perceived as onerous financial obligations on miners, and the establishment of a subsidized international public enterprise that, it was postulated, would compete unfairly with other commercial enterprises.

In July 1990, the Secretary-General of the UN undertook informal consultations aimed at achieving universal participation in UNCLOS. Fifteen meetings were convened in the period 1990 to 1994, resulting in major amendments to the seabed mining portion of UNCLOS. In early 1993, the Clinton administration in the US decided to take a more active role in the reform effort, deciding that the merit of actively participating would not be to find an answer to every future question regarding the uses of the oceans, but to create a framework and channel discussions of new issues along lines more acceptable to the industrialized nations.

The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (hereafter referred to as the "agreement") concluded on 3 June 1994. The agreement avoids establishing a detailed regime anticipating all phases of activity associated with mining of the deep seabed. However, it sets forth economic and commercial principles consistent with a free market philosophy to form the basis for developing rules and regulations at such time as commercial mining develops in international waters.

The agreement retains the institutional outlines of Part XI of the treaty, but scales back the structure and links the activation and operation of institutions to the actual development of concrete interest in seabed mining.

The agreement limits assistance to land-based producers of minerals to adjustment assistance financed out of a portion of royalties from future seabed mining. It also replaces the production control regime of Part XI by the application of GATT principles on subsidization. The agreement further replaces the detailed financial obligations imposed on miners by a future system for recovering economic rents based on systems applicable to land-based mining, and provides that it be designed to avoid competitive incentives or disincentives for seabed mining.

At the conclusion of the informal consultations, only the Russian Federation made a statement reserving its position, since some of its proposals had not been incorporated into the agreement. It was then decided to convene a resumed 48th session of the General Assembly from 27–29 July 1994 for the purpose of adopting and opening for signature the agreement, at which time most of the abstaining industrialized nations signed the treaty. It entered into force on 28 July 1996 having received 40 ratifications.

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