Saturday, September 1, 2007

LOST Mandates Technology Transfer

The Law of the Sea Treaty contains numerous provisions that involve obligations to share information and technology. The Treaty’s architects had in mind not only the importance of technology transfers to the viability of its various maritime research, environmental and industrial goals. They also saw such transfers as tangible examples of LOST’s agenda more equitably to distribute the world’s wealth, both physical and intellectual.

LOST requires transfers of information, know-how and hardware in such areas as: underwater mapping and bathymetry systems; reflection and refraction seismology; magnetic detection technology; optical imaging; remotely operated vehicles; submersible vehicles; deep salvage technology; active and passive acoustic systems; bathymetric and geophysical data; and undersea robots and manipulators. Many of these technologies are inherently “dual-use,” having both military and civilian applications. Their military applications include: anti-submarine warfare capabilities; strategic deep-sea salvage abilities; and deep-water bastions for sub-surface launching of ballistic missiles.

The Proponents’ Claims:

U.S. accession to the Law of the Sea Treaty will not require it to engage in any undesirable technology transfers. Unacceptable obligations to share such technology were eliminated by the 1994 Agreement that “fixed” the original Treaty.

The Facts:

  • The Law of the Sea Treaty requires extensive transfers of data and technology – at least some of which could be highly detrimental to America’s industrial competitiveness (including in fields far removed from maritime-related activities) and to the national security. For example:

    LOST’s Article 266 mandates that states “cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions” and “endeavor to foster favorable economic and legal conditions for the transfer of marine technology.”

    Article 268 requires states to “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”

    Article 269 calls for parties to “establish programs of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance.” (Emphasis added.)

    Compulsory dispute settlement mechanisms afford further opportunities to obtain sensitive technology and information. Article 6 of Annex VII requires that parties to a dispute “facilitate the work of the arbitral tribunal and…provide it with all relevant documents, facilities and information.” It can therefore be expected that countries may bring the United States or its businesses before arbitral tribunals – without expectation of a favorable result, solely for the purpose of obtaining sensitive technology information.

  • The 1994 Agreement ostensibly made certain modifications to technology transfer obligations contained in LOST’s Part XI, which governs administration of the deep seabed. It is misleading, however, to suggest that the United States would, as a result, have no difficulties with technology transfer should it become a party to LOST.

    For one thing, the 1994 accord could not have amended LOST since the Treaty was not open to amendment until eight years after the Agreement entered into force. For another, there are specific arrangements for amending the Treaty, and the Agreement did not conform to them. Finally, not all of LOST’s state parties have endorsed the Agreement. At the very least, this would allow the non-signatories to insist on the application of the original provisions, including those requiring technology transfers.

    Even to the extent the 1994 Agreement can be said to have modified the Law of the Sea Treaty, it did not do so with respect to all of the Treaty’s numerous technology transfer provisions. For example, just the requirements for information-sharing contained in the mandatory dispute-resolution obligations – which are unaddressed by the Agreement – could be sufficient to compel problematic transfers of sensitive data, technology and know-how.

  • The United States is the nation with the most to lose – from an economic and national security point of view – from the sort of obligatory technology transfer provisions contained in the Law of the Sea Treaty, including those that would be binding even if the 1994 Agreement has effect.

  • America has long imposed unilateral export control restrictions precisely for the purpose of preventing transfers that will result in harm to this country. U.S. accession to LOST would require a substantial liberalization, if not wholesale scrapping, of such important self-defense measures.

  • Actual or potential competitors/adversaries like China, Russia, state-sponsors of terror and even European “allies” understand full well what a technology windfall U.S. adherence to LOST could represent. It would be irresponsible, not to say foolish in the extreme, to believe that none of these parties will take advantage of the opportunity to reap that windfall to our very considerable detriment.

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