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Our non-party status is an obstacle that we must overcome in developing virtually any new multilateral maritime instrument. For example, the United States has long played a key role in the IMO to promote maritime safety and effciency and to protect the marine environment in the Arctic, but our leadership position is undermined by our current “outsider” status.
The United States has no “seat at the table” in matters concerning the convention, nor does it have a judge on the Law of the Sea Tribunal, or a decision maker or staff expert on the Commission on the Limits of the Continental Shelf that convenes to review and approve claims to extended continental shelves. Moreover, despite the fact that the 1994 Part XI Implementation Agreement guarantees the United States a permanent seat on the International Seabed Authority and an effective veto on all key decisions of that body, as a nonparty, we simply cannot play that critical role. Without joining the convention, we have no means to formally represent our signifcant maritime interests as a global power, and guide the discussion interpret- ing and developing the law of the sea in the Arctic.
The Coast Guard represents the United States at the International Maritime Organization (IMO), the specialized body through which international standards for ship safety, security, and environmental protection are developed and adopted. These standards are negotiated and implemented under the Law of Sea Convention’s framework.
Consequently, we are becoming increasingly challenged in some of these negotiations because we are not a party to that framework. Moreover, the convention encourages international cooperation to enhance the safety and security of all ocean-going ships. The IMO is developing a mandatory Polar Code for Arctic shipping, and the Coast Guard is playing a key role in that effort.8
Another key mission of the Coast Guard is to promote safe and secure international trade. The convention promotes freedom of navigation and overfight, by which international shipping and transportation fuel and supply the global economy. Some 90 percent of global trade tonnage, totaling more than $6 trillion in value including oil, iron ore, coal, grain, and other commodities, building materials, and manufactured goods, are transported by sea every year.7
Currently, little international trade travels through the Arctic, but this is changing and will continue to increase in the decades ahead as the ice cover continues to recede and marine transportation technology advances. Moreover, there is considerable destinational shipping even now, such as to bring critical supplies to the North Slope and Alaskan coastal villages, and to remove vast amounts of minerals from the treasure trove in the Brooks Range in northwestern Alaska.
By guaranteeing merchant vessels the right to navigate through international straights, archipelagic waters, and coastal waters, the provisions of the convention promote dynamic international trade. Free navigation reduces costs and eliminates delays that would occur if coastal states were able to impose various restrictions on navigational rights.
From an economic perspective, the United States emerges a clear winner under the convention’s provisions on the exclusive economic zone (EEZ) and the continental shelf, due to its lengthy coastline and island possessions that border on several particularly productive ocean areas such as the Bering Sea. The United States has the largest and richest EEZ in the world. Also, our extended continental shelf has enormous potential due to oil and gas reserves, particularly in the Bering, Chukchi, and Beaufort Seas west and north of Alaska.
Discoveries by the crew aboard the USCG icebreaker Healy reveal that the U.S. continental shelf in the Arctic Ocean is much more extensive than originally thought. Nevertheless, only by becoming party to the convention and participating in its processes can the United States obtain secure title to these vast resources, adding an area twice the size of the Louisiana Purchase (some 290,000 square miles) for U.S. sovereign resource exploitation.5Climate Right for U.S. Joining Law of Sea Convention — Scott G. Borgerson and Ambassador Thomas R. Pickering. — Council on Foreign Relations — Dec 23, 2009 [ More ]
Despite claims from critics of the convention that the United States could and should develop its continental shelf resources beyond 200 miles without becoming a party to UNCLOS, it stands to reason that any oil, gas, or mining company would want the legal certainty of the convention before investing billions of dollars to develop an offshore feld, no matter how rich it might be.6To Rule the Arctic’s Waves, U.S. Can’t Waive the Rules — Editorial. — Business Week — Oct 05, 2011 [ More ] In addition, the convention’s deep seabed mining provisions, as amended in 1994, would permit and encourage American businesses to pursue free-market-oriented approaches to deep ocean mining, including in the Arctic Ocean.
As it stands in the seabed resource market, there are approximately 12 mining claims involving 14 countries under the International Seabed Authority, an intergovernmental body established by the Law of the Sea Convention to have oversight of mineral-related activities in the international seabed. Lockheed Martin for years has had claims to explore and extract rare earth elements, which produce valuable metals used the world over in flat-screen televisions, electric hybrid batteries, tank armor, night-vision goggles and every mobile communications device.
“When you see an international, huge company like Lockheed who has got these claims, who has for years been trying to get access to them, that now may end up going to Lockheed Martin U.K. to get a site and operate through their U.K. operating unit, you have to ask why are American companies having to go to foreign governments to access deep seabed minerals when we as a country desperately need [this business]?”Pike said.
The legal experts widely agreed that the first challenge that must be met is to obtain the necessary Senate and presidential action for the United States to accede to the 1982 LOS Convention. Nothing less than an all-agency full-court press will be suf- ficient. If the three maritime services and their allied agencies fail to persuade the Senate to approve the LOS Convention during the One Hundred Tenth Congress, a maritime strategy that purports to affirm the importance of law to global security will have no credibility. Words without consistent action will soon be ignored and forgotten.
Mr. Chairman and members of the committee, freedom of the seas and rights of innocent passage are not theoretical concepts. These are critical aspects of the Law of the Sea Convention and ones that we rely on for the effective operation of our industry. We are very concerned with protection of those rights. Both US flag ships and ships owned or operated by American companies are impacted by international events. We rely on our nation to be actively involved. The U.S. should place itself in the most effective position to be a force for adherence to treaty obligations by all. We can do this by acceding to the treaty.
My members operate in the international maritime world. We benefit from a consistent application of the rules that we have to follow. There are certainly fewer ships flying our flag than in years past although that does not mean we are less involved as a nation. The latest figures we have seen place the United States as the sixth largest shipowning nation in the world. In recent months, we have seen actions by companies that will lead to more American seafarers serving on ships that fly the flags of other nations. Clearly we have a lot at stake.
ISA fees have been lowered, but companies will continue to owe a $250,000 application fee and some, as yet undetermined, level of royalties and profit sharing. (The "system of payments," intones the compromise text, shall be "fair both to the contractor and to the Authority," whatever that means. Fees "shall be within the range of those prevailing in respect of land-based mining of the same or similar minerals," even though seabed production is more expensive, riskier, and occurs in territory beyond any nation's jurisdiction.18 The revised LOST establishes a new "economic assistance fund" to aid land-based minerals producers.19 Surplus funds will still be distributed "taking into particular consideration the interests and needs of the developing States and peoples who have not attained full independence or other self-governing status"--such as the Palestine Liberation Organization.20 Theoretically, America could block inappropriate payments--at least as long as it was a member of the Finance Committee--but over time the United States would come under enormous pressure to be "flexible" and "reasonable."
Indeed, production controls, one of the most perverse provisions of the original text, could recur under the revised agreement. The revision does excise most of article 151 and related provisions, which set a convoluted ceiling on seabed production to protect land-based miners. However, it leaves intact article 150, which, among other things, states that the ISA is to ensure "the protection of developing countries from adverse effects on their economies or on their export earnings resulting from a reduction in the price of an affected mineral, or in the volume of exports of that mineral, to the extent that such reduction is caused by activities in the area."22 That wording would seem to authorize the ISA to impose production limits. The United States might have to rely on its ability to round up allied votes to block such a proposal in the Council in perpetuity.
Third, American policy makers must realize that the contest for East Asia is one of both power and law. International law supports and legitimizes the exercise of American power. It ensures that the landscape of domestic and international opinion is favorable to American objectives, policies, and actions. International law of the sea in particular, through its assurances of freedom of navigation for security as well as commercial purposes, supports the continued nature of East Asia as a maritime system. International law regarding the free use of international airspace operates similarly. Accordingly, to ensure its future position in East Asia the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.