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Additionally, while convention or treaty-based international law is less subject to change and interpretation, it is not immune from change. Parties can collectively agree to change the rule-set in a treaty or adopt particular interpretations of its provisions, in accordance with the terms of the treaty. Given that over 160 nations are currently parties to the Convention, if the rule-set were to change, we might no longer be able to argue that the existing, favorable set of rules under the Convention reflects customary international law. We would be forced to either accept the new rule-set or act as a persistent objector, either of which would come with its own risks. Moreover, our continued status as a non-party allows States an enhanced ability to co-opt the existing text of the Convention and attempt to re-interpret its rules contrary to the original intent that we and other maritime powers helped to negotiate. It would be much more beneficial for the United States to lead the international community in this crucial area of international law from within the Convention, rather than from the outside.
Will accession subject the U.S. military to the jurisdiction of international courts? Again, the answer is no. The Convention specifically permits nations to exempt from international dispute resolution, “disputes concerning military activities, including military activities by government vessels and aircraft.” State Parties individually determine what constitute “military activities.” Current and former leadership within the U.S. government have given repeated assurances that the United States would take full advantage of this clause in its accession documents to exempt U.S. military activities and protect them from the jurisdiction of international courts and tribunals. In fact, this is specifically outlined in this Committee’s Draft Resolution of Advice and Consent of 2007 and continues to be supported by the current Administration.
Will accession hamper our ability to conduct maritime interdiction operations, outside the piracy realm? The answer here is no, as well. The U.S. conducts a wide range of maritime interdiction and related operations with our allies and partners, virtually all of whom are parties to the Convention. We rely on a broad range of legal authorities to conduct such operations, including the Convention, U.N. Security Council Resolutions, other treaties, port state control measures, flag state authorities, and if necessary, the inherent right of self-defense. Accession would strengthen our ability to conduct such operations by eliminating any question of our right to avail ourselves of the legal authorities contained in the Convention and by ensuring that we share the same international legal authorities as our partners and allies.
A growing number of companies and governments2 – including Canada, Japan, South Korea, China and the UK – are currently rushing to claim rights to explore and exploit minerals found in and on the seabed, such as copper, manganese, cobalt and rare earth metals. There are currently 17 exploration contracts3 for the seabed that lies beyond national jurisdiction in the deep seas of the Pacific, Atlantic and Indian oceans, compared with only 8 contracts in 2010. Contract holders will be able to apply for licences to carry out commercial mining in the high seas as soon as regulations for exploitation are developed – anticipated as early as 2016.4 There is also significant exploration interest within national waters, particularly in the Pacific Ocean, and one licence to mine the deep seabed has already been granted in Papua New Guinean waters. However, very little is known about deep-sea habitats, or the impact that mining operations will have on ecosystems and the wider functioning of our oceans. Once thought to be relatively lifeless, scientists now recognise that the deep sea is actually a species-rich environment5, with many species still to be discovered. Because deep-sea species live in rarely disturbed environments and tend to be slow growing and late maturing, with some unique to their particular habitat types (such as hydrothermal vents) or even specific locations, they are highly vulnerable to disturbance or even extinction.6
While I agree with Cartner and Gold "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”." Journal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that membership on the CLCS would not harm US interests, they once again over-dramatize the importance of having a “seat at the table.” Statements like: “without a seat the US has neither eyes nor ears;” “informal networking . . . [would be] greatly restricted;” “a seat provides the government valuable strategic intelligence for little cost”; and “it would be better to have a representative at the table who would understand and report on the dynamics of the CLCS;” are not only inaccu- rate, but also reflect the authors’ lack of understanding of how the CLCS operates. The CLCS scientific and technical guidelines are publicly available on the Internet.19 Members of the CLCS take an oath to “perform [their] duties as a member of the Commission . . . honorably, faithfully, impartial- ly and conscientiously (emphasis added).”20 Additionally, “in the performance of their duties, members of the Commission shall not seek or receive instructions from any Government or from any other authority external to the Commission [and] they shall refrain from any action which might reflect negatively on their position as members of the Commission (emphasis added).”21 What Cartner and Gold appear to be suggesting is that a U.S. member of the CLCS should act as a double-agent for the U.S. Government, secretly passing information to Washington on the deliberations of the Commission. Such behavior would clearly violate the member’s “solemn declaration” under Rule 10, significantly undermining U.S. credibility, and bringing discredit on the U.S. Government.
The good news is that it’s not too late to play catch-up. The first and most obvious place for the United States to start is to finally join the 164 other countries that have acceded to unclos. Ironically, Washing- ton had a hand in drafting the original treaty, but Senate Republicans, making misguided arguments about the supposed threat the treaty poses to U.S. sovereignty, have managed to block its ratification for decades. The result has been real harm to the national interest.
UNCLOS allows countries to claim exclusive jurisdiction over the por- tions of their continental shelves that extend beyond the 200-nautical- mile exclusive economic zones prescribed by the treaty. In the United States’ case, this means that the country would gain special rights over an extra 350,000 square miles of ocean—an area roughly half the size of the entire Louisiana Purchase. Because the country is not a party to unclos, however, its claims to the extended continental shelf in the Beaufort and Chukchi seas (and elsewhere) cannot be recognized by other states, and the lack of a clear legal title has discouraged private firms from exploring for oil and gas or mining the deep seabed. The failure to ratify unclos has also relegated the United States to the back row when it comes to establishing new rules for the Arctic. Just as traffic through the Bering Strait is growing, Washington lacks the best tool to influence regulations governing sea-lanes and protecting fisheries and sensitive habitats. The treaty also enshrines the international legal principle of freedom of navi- gation, which the U.S. Navy relies on to project power globally.
No wonder everyone from the head of the U.S. Chamber of Commerce to the president of the Natural Resources Defense Council to the chairman of the Joint Chiefs of Staff (along with every living secretary of state) has argued that the United States should ratify unclos. It is far past time for the Senate to follow their advice. Skeptical Senate Republicans have stood in the way of ratification, arguing that the treaty would place limits on U.S. sovereignty. But that argument is a red herring, since the United States already follows all of the treaty’s guidelines anyway, and ratifying it would in fact give Washington new rights and greater influence. There are probably enough votes from moderate Republicans for the treaty to pass, if the president decided to make ratification a priority.
Submarine cables and pipelines are vulnerable assets in the global commons.182 Their protection from undersea attack is a real prescriptive and enforcement challenge because of our extreme reliance on this critical infrastructure; its multi-jurisdictional span beyond territorial seas; the availability of precise locational coordinates; the opaque environment below the waterline; and the accessibility to commercial-grade vehicles that can exploit this environment and inflict disproportionate harm.
The opaque environment and the accessibility to UUVs set this challenge apart from challenges above the water's surface to flagged vessels and platforms. As with cyber threats, this necessitates an effective deterrence policy to compensate for an inability to pinpoint suspected culprits. Not only do legal shortcomings in jurisdiction and security enforcement float above the surface, but arguably more sinister shortcomings lurk below. These threats also require an even more delicate balance between disclosure and secrecy, and between freedom ofnavigation and reasonable restraints for collective security.
In the end, whatever vigor is applied towards cyber security, and whatever balance is struck for internet freedoms should be matched by securing the very cables that transport this life-blood of commerce. Likewise, investment in energy independence should correspond to the security of the very arteries that enable and spur offshore energy exploration.
Finally, there is temporal ripeness to treat undersea pirates as hostes humani generis. Critical infrastructure below the waterline is often beyond national jurisdiction and remote from the state of affiliation. Therefore, it should be unambiguously incorporated into the LOSC definition of piracy along with ocean platforms. The two-vessel requirement and the private ends limitation should be eliminated to deter signatory states and their inhabitants from looting and possibly inciting economic and environmental shock at the margins of antiquated definitions.
As in several recommendations above, the United States can take the lead in updating the LOSC to account for technology trends and the changing dynamics of modem threats and defenses. The United States can drive this discourse by ratifying the LOSC. Further, it can condition ratification on the incorporation of security amendments, including an updated definition ofpiracy.
The modification of this one definition may not assist in attributing a surreptitious attack to its culprits, but could be the foundation for a more coordinated and enforceable response in the global commons. As in declaring safety zones around pipeline and cable routes, the aim would not be to thwart the possibility of attacks as much as to deter attacks through the specter of tough international sanctions. And if international responses are still deemed too tepid and ginger in punishing pirates, then a revised definition could at least provide affected flag states with a recognized prerogative to prosecute offenders akin to a coastal state's sovereignty within its territorial waters.