James W. Pfister
Beyond the national jurisdiction of a coastal state at sea lies the deep seabed, known in international law as the Area (complexities of the outer continental shelf beyond 200 nautical miles are not considered here). It is the “common heritage of mankind”, according to Article 136 of the United Nations Convention on the Law of the Sea and the Agreement to Implement it (hereafter UNCLOS). It is governed by the International Seabed Authority (hereafter ISA).
After:Law of the sea: an almost universal international law
The United States is not a member of UNCLOS, as are a handful of other states: Colombia, Israel, Peru, Turkey and Venezuela. The questions are: whether the United States should join UNCLOS or go it alone in mining valuable deep-sea minerals; whether it is now legal to proceed since the vast majority of states live under ISA; and has UNCLOS become customary international law to which the United States must defer?
The argument for the United States to go it alone is as follows. It’s pure self-interest – Trump’s “America First”. It would not be necessary to consider the so-called common heritage of mankind. There would be no higher authority like the ISA or international bureaucracy to consider, no fees, expenses or fees paid to the ISA. Since the common heritage of mankind would not have to be taken into account, the benefits of mining would not have to be shared with other states, as required by UNCLOS.
The legal argument supporting this self-interest is that from the earliest days of sailing there has been freedom of the seas. It’s really customary international law. Besides the freedom to navigate the high seas, to fish and to fly over it, there is also the freedom to exploit its bottom. (Steven Groves, in a briefing paper for the Heritage Foundation, 2012). Thus, the United States as a sovereign state can exploit this seabed. There is no legislative power in the UN or in any of its conventions. There are only contractual or conventional laws that they can create. They can enact all the rules they want, but they have no power over third parties who have not adhered to the contract.
Furthermore, Congress has put in place a legal framework for the exploitation of the seabed: the Deep Seabed Hard Mineral Resources Act of 1980 (hereafter DSHMRA). In past practice, the United States has entered into contracts with other seabed mining states to avoid overlapping disputes and to protect the rights of the states involved. Thus, customary international law on the freedom of the seas, the DSHMRA and past practice form the basis of the legal argument, as well as the notion that international structures cannot legislate to non-parties; there are only contracts (treaties), customary and past practices, no governmental international law.
The argument for joining UNCLOS is as follows. Since the vast majority of states have acceded to and followed UNCLOS, it is now subject to customary international law. Since the United States participated in its development, was a consistent observer of ISA procedures, and signed the 1994 Implementation Agreement, it must follow it as customary international law and, therefore, is bound by this one. Thus, the United States cannot sponsor activities on the seabed until it has acceded to the UNCLOS treaties in accordance with UNCLOS law (Section 137).
Moreover, the DSHMRA of 1980, carried out before the UNCLOS agreement of 1982, was only an interim framework until the ratification of UNCLOS. (Klaas Willaert, “Deep sea mining and the United States: Unbound powerhouse or odd man out?”, Marine Policy, February 2021). Not being a member of UNCLOS now that it has been ratified by so many states would create uncertainty for an investor that a mere US license in the area would not be internationally recognized or enforced.
The larger question is whether the United States wants to promote universal international law, especially international law moving toward a uniform world order. It may be difficult for a superpower to accept higher authority, but such cooperative self-sacrifice may be necessary for a more stable world under law. In a mature legal system, no one can be above the law; this means the United States, as well as other states. It would be for long-term self-interest.
James W. Pfister, JD University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the political science department at Eastern Michigan University. He lives in Devils Lake and can be reached at [email protected]