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Sustainability. The Convention also supports U.S. interests in the health of the world’s oceans and the living resources they contain. It addresses marine pollution from
a variety of sources, including ocean dumping and operational discharges from vessels. The framework appropriately balances the interests of the coastal State in protection of the marine environment and its natural resources with the navigational rights and freedoms of all States. This framework, among other things, supports vital economic activities off the coast of the United States. Further, the United States has stringent laws regulating protection of the marine environment, and we would be in a stronger position as a party to the Convention as we encourage other countries to follow suit.
The Convention also promotes the conservation of various marine resources. Indeed, U.S. ocean resource-related industries strongly support U.S. accession to the Convention. U.S. fishermen, for example, want their government to be in the strongest possible position to encourage other governments to hold their fishermen to the same standards we are already following, under the Convention and under the Fish Stocks Agreement that elaborates the Convention’s provisions on straddling fish stocks and highly migratory fish stocks.
The United States has one of the largest continental shelves in the world; in the Arctic, for example, our shelf could run as far as 600 miles from the coastline. However, as noted, we have no access to the Commission, whose recommendations would facilitate the full exercise of our sovereign rights – whether we use them to explore and exploit natural resources, prevent other countries from doing so, or otherwise. In the absence of the international recognition and legal certainty that the Convention provides, U.S. companies are unlikely to secure the necessary financing and insurance to exploit energy resources on the extended shelf, and we will be less able to keep other countries from exploiting them.
Joining the Convention provides other economic benefits: it also gives coastal States the right to claim an exclusive economic zone (“EEZ”) out to 200 nautical miles. That gives the United States, with its extensive coastline, the largest EEZ of any country in the world. In this vast area, we have sovereign rights for the purpose of exploring, exploiting, conserving, and managing living and non-living natural resources.
The time has now come for the United States to become party to this vital convention and regain its leadership position in ocean policy affairs. One benefit: Becoming a party to UNCLOS would greatly enhance homeland security. In his testimony before the Senate Foreign Relations Committee, Admiral James Watkins"Statement of Admiral James D. Watkins: Senate Advice and Consent to the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (2 quotes) ], former Commission on Ocean Policy, called the convention “the foundation of public order of the oceans.”7"Statement of Admiral James D. Watkins: Senate Advice and Consent to the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (2 quotes) ] U.S. military forces, including Coast Guard units, rely heavily on the many critical freedoms of navigation, over- flight, and operational principles codified in the convention. Under the current legal regime, the United States is not guaranteed such rights. While there is a strong argument that transit passage and archipelagic sea lanes passage have become established rights under customary international law, not all agree.
For example, the Islamic Republic of Iran, whose terri- torial waters overlap the shipping lanes in the critical Strait of Hormuz (through which much of the world’s oil passes) contends that only states that are party to UNCLOS are entitled to the full rights of transit passage.8 Moreover, neither of these critical navigational rights exists under any of the 1958 Geneva Conventions on the Law of the Sea, to which the United States continues to be bound. Becoming a party to the 1982 convention will supersede our obligations under the 1958 conventions and will ensure the entire range and ex- tent of our critical mobility rights in all the ocean waters of the world.
The U.S. Commission on Ocean Policy has taken a strong interest in the international implications of ocean policy since the inception of our work. Our 16 Commissioners were appointed by the President - 12 from a list of nominees submitted by the leadership of Congress - and represent a broad spectrum of ocean interests. The Oceans Act of 2000 (P.L. 106-256) specifically charged our Commission with developing recommendations on a range of ocean issues, including recommendations for a national ocean policy that "...will preserve the role of the United States as a leader in ocean and coastal activities."
With this charge in mind, the Commission took up the issue of accession to the LOS Convention at an early stage. At its second meeting in November, 2001, the Commissioners heard testimony from Members of Congress, federal agencies, trade associations, conservation organizations, the scientific community and coastal states. We heard compelling testimony from many diverse perspectives - all in support of ratification of the LOS Convention. After reviewing these statements and related information, our Commissioners unanimously passed a resolution in support of United States accession to the LOS Convention. The fact that this resolution was our Commission's first policy pronouncement speaks to the real sense of urgency and importance attached to this issue by my colleagues on the Commission.
The United States is party to many international agreements - including conventions pertaining to vessel safety, environmental protection and fisheries management - which are based directly on the LOS framework. Those United States representatives who participate in the negotiation of these agreements are among the strongest advocates for accession to the LOS Convention.
For example, the Coast Guard, which has played a lead role in developing international agreements on maritime safety, security and environmental protection at the International Maritime Organization (IMO), and also participates in fisheries negotiations, told our Commission that: "[A] failure to accede to the Convention materially detracts from United States credibility when we seek to advance our various ocean interests based upon Convention principles. Also, as a non-party, we risk losing our ability to influence international oceans policy by leaving important questions of implementation and interpretation to others who may not share our views." In testimony before our Commission, then-Commandant Admiral James Loy, and more recently the current Commandant, Admiral Thomas Collins, both strongly supported United States accession to the LOS Convention.
The Deep Sea-Bed Authority would need to have a method of verifying pro- duction figures submitted to it. The Nigerian Attorney-General speaking in London at the September 2005 Commonwealth Lawyer’s Conference and noted that Nigeria has only very recently been able to introduce proper checks on the volume of resources extracted. It has taken the Nigerian oil industry approximately 40 years to reach a point where they have developed a reasonably fool proof method of checking that they are receiving their entitlement of proceeds from joint ventures with private oil companies.
There are also significant problems in Nigeria with the bunkering or illegal lifting of oil which have been highlighted by the trouble in the Niger Delta. The pipelines are tapped into directly away from oil company facilities, and pipes are then connected to barges to siphon off oil. Governor Ibori has stated in the past that as many as 300,000 barrels per day or 15 percent of produc- tion is stolen through bunkering activities. The oil companies in the region estimate it to be less, although it is quite possible that 10 per cent of Nigerian production is stolen per annum. These are problems that individual governments have to face and will also need to be faced by the Deep Sea Bed Authority in their application of Article 82.
While Moore’s view is also that Article 82 is a “small quid pro quo”,11 the Article may nonetheless have undesirable consequences. For example, Rainer Lagoni observed in New Delhi in 2002 that in providing for five years where the revenue share is nil per cent before slowly climbing by one per cent a year there is an incentive of the mining industry to extract resource at a far faster rate than they might otherwise do.12 This may lead to an inefficient, even wasteful use of resource, particularly when taking into account the gearing of refinery resources to the raw resource available.
The same is likely to true of the Internet – an immeasurably important engine of American technological and commercial competitiveness and, increasingly, a key component of U.S. national security. Other countries have already demanded global Internet regulation. For example, in March 2005, China’s ambassador to the United Nations called for international management of the Internet. Seven months later, the UN hosted a conference at which many delegates insisted on an end to this country’s exclusive control over the assignment of web addresses and e-mail accounts, in favor of having such roles performed by one or more UN agencies.
The problems with such an arrangement are obvious. The Washington Post pointed out that any such agencies would inevitably be caught between free societies that want low barriers to Internet access, and countries such as China and Saudi Arabia, that insist on limiting access. The Post went on to observe: “These clashes of vision would probably make multilateral regulation inefficiently political.” As it happens, the same is true of LOST – and would certainly apply with devastating effect to the Internet if LOST becomes the template for multilateral management of the ether’s “international commons.”
Besides telecommunication cables, power cables are protected under the Convention. The Juan de Fuca cable, an international electrical cable that will bring power from Canada to Washington State in 2007, is an example of this international submarine cable use14, and there are plans for a power cable from Canada to Boston and New York15.
The scientific Neptune cable system, funded by the National Science Foundation, is another example of a cable use recognized by the Convention. When completed in 2011, along with a joint system now being laid by Canada, this scientific research cable system will form the world's most advanced undersea network of scientific observatories with hundreds of 24/7 monitoring sites off the west coasts of Canada and the United States. These cables will bring the global Internet to the ocean depths and yield new insights into the environment ranging from forecasting volcanic and seismic events to maximizing living marine resource benefits and environmental protection.
Military cables with sensors vital to national defense and homeland security depend on the Convention to allow their placement. Coastalnationencroachmentoramendmentstorestrict this cable use can be best opposed when the United States is an active party.
The BP Gulf of Mexico system, a domestic submarine cable system, will connect in 2008 seven of that company's off-shore production platforms, and possibly others in the future, and will enable energy companies to monitor and operate these platforms continuously from remote control centers ashore, impervious to hurricanes. This cable provides greater energy reliability and environmental safeguards.
Cables for all of these uses benefit from the Convention. Fundamentally, the ability to carry out marine surveys, to lay, maintain, and repair cables outside of territorial seas on an international basis rests on the Convention's protections, hi a world where the competition for use of the oceans is accelerating, disputes by competing coastal nations and seabed users will occur with increasing frequency. By providing express protections to cables over other non- specified uses in the EEZ, the Convention assures that the critical importance of international cable infrastructure is given the priority protection it requires to serve our country16.
Another more recent event underscores how U.S. telecommunication companies suffer because the United States is not a party. On March 27, 2007, two active international cable systems were heavily damaged on the high seas and taken out of service for about three months as a result of piratical depredations for private ends by commercial vessels from Vietnam; they stole a total of over 106 miles of cable, including optical amplifiers from these active systems11. Repair costs are estimated in excess of $7.2M with the national economic costs of the disruptions still being ascertained. The cable systems are owned by consortiums,common in the industry12, and the ownership and landing points involve eleven countries. United States co-owners who sustained losses and had their networks disrupted were AT&T, Verizon, and Sprint. With the exception of the United States, all of the nations impacted have tangible preventative and compensatory options as well as obligations to protect their nationals under the 1982 Convention. The Convention expressly proscribes depredations against property on the high seas and the EEZ's and classifies them as piracy with recourse to all of the Convention's robust remedies to put pirates out of action13. Expressly classifying depredations against property such as cables is an example of how the Convention protects cables from new emerging threats.