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While UNCLOS has effectively codified many aspects of traditional law and has successfully incorporated several modern issues, such as environment, fisheries, and coastal zone management, these can be regarded as "nice to have" accomplishments but are by no means essential to the political, economic, or military security of the United States. In fact, one of the principal reasons for the establishment of UNCLOS III was to resolve U.S. conflicts with several Latin American states over territorial sea claims in the Pacific Ocean and the repeated seizure of U.S. tuna boats and their crews. After more than ten years of UNCLOS III, ten years of post-UNCLOS III ratification debate, and two more years of negotiation of the agreement, Nicaragua, Peru, Ecuador, and El Salvador still claim 200-mile territorial seas and refuse to become parties to the convention.
With regard to Nicaragua and Peru, their abstention could be due to their claim to the 200-mile territorial sea, which is not in conformity with the Convention.
The reasons for the absence or non-participation of these states are not clear. Only Turkey explained that it had some difficulties with certain provisions of the Convention. Ecuador and El Salvador may have chosen not to vote because of their claim to the 200-mile territorial sea. (Hayashi, 5-6)
Although the 1994 treaty modifications have toned down some of the most direct mandatory technology transfer requirements, the treaty still places at risk some very sensitive, and militarily useful, technology which may readily be misused by the navies of ocean mining states. These include: 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 military acoustic systems, classified bathymetric and geophysical data, and undersea robots and manipulators.
The military application of these technologies would provide new anti-submarine warfare (ASW) capabilities, strategic deep-sea salvage abilities, and deep-water bastions for launching sub-surface ballistic missiles (SSBM's). With or without the mandatory technology transfer provisions contained in the UNCLOS, U.S. participation would provide a "legal" conduit and cover to justify the acquisition of state- of-the-art deep ocean devices and technology that have profound national security implications. Ocean mining activities by the Enterprise or third world nations, such as China or India, can provide plausible justification for successfully purchasing technologies that, in the absence of ocean mining, would likely be denied on national security grounds.
Since the conclusion of UNCLOS in 1982, the general concept of an EEZ and the right for a coastal state to exercise sovereign rights over economic activity and resources have become customary international law.41 However, as a relatively new concept in international law, the specific scope of rights and responsibilities in the EEZ is dynamic and ever-evolving.42 UNCLOS does not clarify the specific issue of military activities in the EEZ and a major source of contention continues to be whether maritime states may unilaterally conduct certain military operations in the EEZ of the coastal state without permission.43 Some maritime powers support unfettered military activity in the EEZ by emphasizing the freedom of navigation.44 Conversely, some coastal states object to military activity in their EEZ by expressing concern for their national security and their resource sovereignty.45 This divergence in perspective regarding the legality of foreign military activities in the EEZ is partly due to varying interpretations of Article 58, which permits maritime states to engage in ‘other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.’46 Thus, nations such as the United States perceive this provision to permit naval operations in the EEZ as an activity ‘associated with the operation of ships’ and more generally, as protected within the scope of the freedom of navigation.47
Since UNCLOS is meant to be a comprehensive ‘package deal’, states may not make reservations or exceptions to the Convention.48 Otherwise, parties to the treaty could effectively opt out of their convention obligations.49 Under Article 310, States retain the right to make declarations, though such statements are illegitimate if they ‘purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.’50 Some states have exercised their Article 310 right by making declarations on the issue of military activities in the EEZ.51 For instance, Brazil, Bangladesh, Cape Verde, Malaysia, India, and Pakistan have all expressed concern over the ability of foreign military vessels to engage in certain activities within the EEZ.52 In their declarations, these states require consent before a foreign ship may conduct military activities.53 To illustrate, Brazil declared in 1988:
The Brazilian Government understands that the provisions of the Convention do not authorize other States to carry out military exercises or manoeuvres, in particular those involving the use of weapons or explosives, in the exclusive economic zone without the consent of the coastal State.54
States such as Italy, Germany, the Netherlands and the United Kingdom have protested these interpretations as unduly restrictive on navigational freedoms and as inconsistent with Article 310 and UNCLOS.55 For example, the Netherlands declared in 1996:
The Convention does not authorize the coastal State to prohibit military exercises in its exclusive economic zone. The rights of the coastal State in its exclusive economic zone are listed in article 56 of the Convention, and no such authority is given to the coastal State. In the exclusive economic zone all States enjoy the freedoms of navigation and overflight, subject to the relevant provisions of the Convention.56
These declarations demonstrate the sharp disagreement and variance in interpretation regarding the legality of conducting military activities in the EEZ of another country.57
Despite the ambiguity in the language of UNCLOS and the divergence in interpretation of the text, there is some evidence that the Convention did not intend to broadly exclude peacetime military operations in the EEZ.58 For instance, the 1949 International Court of Justice (ICJ) Corfu Channel decision refers to the freedom of navigation of warships in peacetime as a ‘general and well-recognized principle.’59 The ICJ’s findings in the Corfu Channel case were influential in the development of the law of the sea in the UNCLOS conferences.60 This finding is crucial since the freedom of navigation is the foundation for military operations at sea.61 However, the Court’s decision did not specify the scope of the rights included in the freedom of navigation of warships. During UNCLOS III, the President of the Conference, Tommy T.B. Koh, commented on the question of military activities in the EEZ by stating in 1984:
The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted. I therefore would disagree with the statement made in Montego Bay by Brazil, in December 1982, that a third state may not conduct military activities in Brazil’s exclusive economic zone[...].62
Unfortunately, the issue of military activities in the EEZ remains ambiguous and unsettled.
It is difficult to comment on the legality of the Impeccable in China’s claimed EEZ without knowing the exact circumstances of what the vessel was doing there. According to the US Navy’s Military Sealift Command website, the Impeccable is an ocean surveillance ship that ‘directly support[s] the Navy by using both passive and active low frequency sonar arrays to detect and track undersea threats.’83 Much to China’s irritation, the United States will most likely continue to assert the freedom of navigation and point to military activities in the EEZ as legitimate, non-resource related, and posing no direct threat to the coastal state.84 Meanwhile, China relies on Article 301 and demands that the United States respect its legal interests and security concerns.85 Ultimately it appears that the two nations remain markedly divergent in their interpretation of whether peacetime military activities such as what the Impeccable was engaged in are a threat to the territorial integrity or political independence of the coastal state.
Ratification of the Law of the Sea Convention also has an important bearing on a longer-term potential energy source that has been the subject of much research and investigation at the U.S. Department of Energy for several years: gas hydrates.
Gas hydrates are ice-like crystalline structures of water that form “cages” that trap low molecular weight gas molecules, especially methane, and have recently attracted international attention from government and scientific communities. World hydrate deposits are estimated to total more than twice the world reserves of all oil, natural gas and coal deposits combined.
Methane hydrates have been located in vast quantities around the world in continental slope deposits and permafrost. They are believed to exist beyond the EEZ. If the hydrates could be economically recovered, they represent an enormous potential energy resource. In the U.S. offshore, hydrates have been identified in Alaska, all along the West Coast, in the Gulf of Mexico, and in some areas along the East Coast. The technology does not now exist to extract methane hydrates on a commercial scale. Joint industry/government groups of scientists have been at work in the Gulf of Mexico examining the hydrate potential in several deepwater canyons. This work is intended to help companies find and analyze hydrates seismically and to complete an area-wide profile of hydrate deposits.
From an energy perspective, potential future pressures are building in terms of both marine boundary and continental shelf delineations and in marine transportation. The LOS Convention offers the U.S. the chance to exercise needed leadership in addressing these pressures and protecting the many vital U.S. ocean interests. Notwithstanding the United States’ view of customary international law, the U.S. petroleum industry is concerned that failure by the United States to become a party to the Convention could adversely affect U.S. companies’ operations offshore other countries. In November 1998, the U.S. lost its provisional right of participation in the International Seabed Authority by not being a party to the Convention. At present there is no U.S. participation, even as an observer, in the Continental Shelf Commission— the body that decides claims of OCS areas beyond 200 miles— during its important developmental phase. The U.S. lost an opportunity to elect a U.S. commissioner in 2002, and we will not have another opportunity to elect a Commissioner until 2007.
The United States should also be in a position to exercise leadership and influence on how the International Seabed Authority will implement its role in being the conduit for revenue sharing from broad margin States such as the U.S., yet the U.S. cannot secure membership on key subsidiary bodies of the Seabed Authority until it accedes to the Convention. Clearly United States views would undoubtedly carry much greater weight as a party to the Convention than they do as an outsider. With 145 countries and the European Union having ratified the Convention, the Convention will be implemented with or without our participation and will be sure to affect our interests.
It is for these reasons that the U.S. oil and natural gas industry supports Senate ratification of the Convention at the earliest date possible.
Further delay in U.S. accession to the Convention, of course, bears risks and costs for the United States. The Convention became open for amendment for the first time in November 2004. This means that our ability to participate in consideration of any such amendments will be limited. The work of the Commission on the Limits of the Continental Shelf is proceeding: and as a non-party to the Convention, the United States is not eligible to submit a claim for the delineation of its broad outer continental shelf, which could hamper efforts to develop the resources of the shelf. More generally, by staying outside the Convention, the United States risks calling into doubt its commitment to the balance of interests codified in the Convention for uses of the oceans. In the long run, this could serve to undermine the order and stability on the oceans fostered by the Convention, to the detriment of U.S. interests and of all users of the oceans.
The settlement we made with Mexico now makes it possible for leases in the Gulf of Mexico issued by the Department of the Interior’s Minerals Management Service (MMS) to be subject to the Article 82 “Revenue Sharing Provision” calling for the payment of royalties on production from oil and natural gas leases beyond the EEZ. According to MMS, seven leases have been awarded to companies in the far offshore Gulf of Mexico which include stipulations that any discoveries made on those leases could be subject to the royalty provisions of Article 82 of the Convention. MMS also reports that one successful well has been drilled about 2.5 miles inside the U.S. EEZ. Details on how the revenue sharing scheme will work remain unclear, and without ratification the U.S. Government’s ability to influence decisions on implementation of this provision is limited or non-existent. This creates uncertainty for U.S. industry.