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Seabed mining, in the Arctic and elsewhere, is also becoming an important strategic interest for the United States. U.S. companies increasingly seek to engage in seabed mining for minerals such as rare earth elements and cobalt that are critical to the broad U.S. economy and used in producing defense assets. However, as long as the United States remains outside the international legal protections afforded by LOSC, the private sector remains hesitant to invest in seabed mining – investments that would reduce U.S. vulnerabilities to external pressure and supply disruption. Indeed, since few suppliers provide such minerals and they are prone to intentional or unintentional disruptions and price spikes, increasing U.S. production will help prevent suppliers from exerting political and economic leverage over the United States and its allies.22
Offshore oil and natural gas exploration along the extended continental shelf – an area beyond the 200-nautical-mile EEZ – is expected to increase U.S. reserves over the next decade. However, the United States cannot secure internationally recognized sovereign rights to those resources unless it ratifies LOSC. While the United States enjoys national jurisdiction over living and non-living resources above and below the seabed out to 200 nautical miles, claims to resources beyond the EEZ must be formally made to the U.N. Commission on the Limits of the Continental Shelf, the international body established by LOSC for parties to adjudicate claims to the extended continental shelf. Without the United States ratifying LOSC, U.S. companies operating beyond the EEZ would be considered on the high seas and beyond the formal legal protection of the United States. As a result, offshore drilling companies have increasingly expressed their concern about the lack of legal protections afforded to U.S. companies and have indicated a reluctance to assume significant risk in operating in areas beyond U.S. jurisdiction. In short, U.S. failure to ratify LOSC could have a chilling effect on commercial resource exploration and exploitation on the extended continental shelf.
Ratifying LOSC will bolster the U.S. ability to create bilateral and multilateral agreements with other countries to counter WMD proliferation, one of the biggest threats to U.S. security according to numerous analysts both in and outside of government.17 Government efforts to strengthen land-based interdiction efforts are increasing maritime tran- sit of dual-use technologies critical to developing and deploying WMD. In just one striking example, in June 2011 a U.S. Navy destroyer trailed a Belize-flagged ship suspected of carrying missile components to Burma and pressured the vessel to return to its origin in North Korea.18
In particular, ratifying LOSC will strengthen programs such as the Proliferation Security Initiative (PSI), since key partner and potential partner countries often voice skepticism over U.S. commit- ments to these transnational programs in light of the U.S. failure to ratify the convention. President George W. Bush launched PSI in 2003 to leverage existing national laws to improve interception of materials in transit and halt WMD-related financial flows. LOSC ratification will give PSI a stronger legal foundation under international law by removing “the bogus argument that PSI is a renegade regime that flies in the face of international law,” according to Rear Admiral William D. Baumgartner, former U.S. Coast Guard Judge Advocate General. “The net result will be more partners, more intelligence, more preemptive actions that help protect us from this most serious threat.”19 Indeed, removing this excuse for other countries’ non-participation in programs to counter proliferation would benefit the United States diplomatically and could help in negotiating future innovative solutions and programs.
Ratifying LOSC will also enhance U.S. counter-piracy efforts by improving America’s ability to shape the legal authorities the international community relies on to combat piracy, especially in instances where existing agreements do not account for advancements in technology. The United States, for example, relies increasingly on remote sensing systems and a fleet of low- and high-altitude remotely piloted vehicles to provide persistent surveillance where the United States lacks a sustained maritime presence. These technologies may help U.S. maritime officials track piracy activities and facilitate a faster response. However, as one analyst notes, use of these technologies may not be clearly protected within existing international maritime treaties, including LOSC: “[R]emote sensing from satellites and high-flying surveillance aircraft have for decades undertaken maritime scientific research and surveys in others[’] EEZs without the permission – or even the advance knowledge – required by the 1982 UNCLOS.”16 As the United States continues to field remotely piloted or semi-autonomous vehicles and sensors – including maritime ones – it will need to be prepared to challenge efforts to constrain or prohibit their use.
The continued failure to ratify LOSC will not prohibit the United States from taking action against piracy. The United States conducts counter-piracy operations today despite its reluctance to ratify LOSC. The U.S. Navy and Coast Guard often execute such operations using the legal authorities granted under the 1988 Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention) – to which the United States is a party.15 Regardless, U.S. Navy and Coast Guard officials continually argue that LOSC adds legitimacy to counter-piracy efforts. In an era of hybrid threats in the maritime domain, this added legitimacy will make it easier for the United States to cooperate with international partners in this area.
Ratification will also help the United States deflate Iran’s recent challenges to U.S. freedom of naviga- tion through the Strait of Hormuz. Historically, Iran has stated that the right to freedom of navigation does not extend to non-signatories of the convention and has passed domestic legislation that is inconsistent with international law, specifically by requiring warships to seek approval from Iran before exercising innocent passage through the strait.11 Ratifying LOSC would nullify Iran’s challenges should it ever choose to close the strait to U.S. or other flagged ships. Moreover, ratifying LOSC will provide the U.S. Navy the strongest legal footing for countering an Iranian anti-access campaign in the Persian Gulf.
LOSC critics often argue that the treaty’s navigational provisions are redundant given that countries – including the United States – comply with customary international law. However, as navies around the world modernize, states may seek to redefine or reinterpret customary international law in ways that directly conflict with U.S. inter- ests, including freedom of navigation. Ratification will help the United States counter efforts by rising powers seeking to reshape the rules that have been so beneficial to the global economy and to U.S. security. China, for example, seeks to alter customary international law and long-held interpretations of LOSC in ways that will affect operations of the United States as well as those of many of its allies and partners. Some U.S. partners and allies share China’s view on some of these issues. Thailand, for example, has adopted China’s view that foreign navies must have consent of the coastal state before conducting military exercises in its Exclusive Economic Zone (EEZ), a view that runs counter to traditional interpretation of the treaty.10 LOSC provides a legitimate and recognized framework for adjudicating disagreements that will enable the United States to sustain access to the global commons.
Perhaps most notably, the convention clarifies the difference between military activities and innocent passage, an increasingly important distinction in international disputes over freedom of navigation rights.7 For example, surveying and using weapons or intelligence-gathering capabilities (e.g., tapping into seabed fiber optic cables) in territorial waters are activities that violate innocent passage as described in the convention.8 LOSC also specifies norms and duties for submarines and other underwater vehicles, surface vessels and aircraft that must be met to ensure innocent passage in territorial waters and international straits. Submarines or other underwater vehicles operating in another state’s territorial waters, for example, are required to surface and show their flag in order to signal innocent passage.9
Myth: The convention would turn the oceans over to the United Nations.
This is completely and utterly false; not a drop of ocean water nor an ounce of oceans resources would be turned over to the United Nations. To the contrary, the convention disappointed extreme internationalists who believed in "blue helmet" solutions to oceans issues. It placed all coastal resources of the water column and the continental shelf under coastal nation, rather than international, jurisdiction. And it maintained and strengthened freedom of navigation on the world's oceans. These critical issues in the negotiation, by far the most important, hugely strengthened national sovereign rights. Even the ISA that the convention created is an independent international authority, supported by the United States, and is necessary to provide stability of property rights to deep seabed minerals owned by no other nation. Without such an authority providing exclusive property rights to seabed mine sites of the deep ocean floor, seabed mining, including that by U.S. interests, would never be realized. And remember that this body is limited to the mineral resources of the deep seabed beyond national jurisdiction that have yet to be mined, in contrast with the billions of dollars in fisheries, oil and gas production on the continental margins, all of which are under national jurisdiction.
Myth: U.S. adherence will entail history's biggest voluntary transfer of wealth and surrender of sovereignty.
To the contrary, the convention enhances not only sovereignty of U.S. military ships and aircraft, but also bolsters our resource jurisdiction over a vast area off of our coasts. In fact, the convention supports the sovereign rights of the United States over extensive maritime territory and the natural resources therein, including a broad continental shelf that in many areas extends well beyond the 200-nm limit. The area of resource jurisdiction confirmed under national control of the United States by this convention is approximately equal to that of the continental United States and exceeds the area of the Louisiana Purchase, the purchase of Alaska or any other addition to U.S. sovereignty in history. It is also the most extensive of any nation in the world. The mandatory technology transfer provisions of the deep seabed mining sections in the original convention, to which the United States objected, were eliminated in the 1994 agreement. Any transfer of funds to nations from deep seabed mining revenues, or oil and gas development beyond 200 miles, is subject to a U.S. veto. As such, we not only have a veto over where our seabed mining revenue would go, but also over that of all nations worldwide. This new power is simply lost if we fail to adhere