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Even if the LOSC fails to classify subsea attack as piracy with full recourse to the convention's robust remedies, it does proscribe depredations against cables and pipelines under the high seas and the EEZ. As discussed above, the traditional rights of U.S. cable owners outside of territorial waters have been victimized by a dearth of enforcing legislation. By delaying the ratification of the LOSC, this lack of effective prosecution persists.157
World telecom companies rightly believe that the LOSC facilitates more confident investments than simply operating under the bare aegis of customary international law.158 Simply defending against customary law encroachments does not deter underwater attack, but with U.S. ratification, U.S. telecom and energy companies as well as the U.S. Navy could seek greater government assistance in enforcing propert rights and undersea infrastructure security outside of territorial seas.159 Moreover, all U.S. stakeholders would have a firmer basis in holding other states responsible for their loss.160
As a condition for ratifying LOSC, the United States could take the helm in updating the convention to meet new military and commercial paradigms since it was first drafted three decades ago. Such revisions may include one or more of the following proposals.
States and private owners may assert claims or jurisdiction over undersea infrastructure on various grounds. States may assert claims on behalf of injured parties incorporated or present within their jurisdiction. Pipeline and cable owners, meanwhile, have direct recourse to traditional admiralty remedies in national courts that retain jurisdiction over the vessels and persons responsible for undersea depredations.82 However, under international law, a corporate person whose property has been damaged possesses rights that are merely derivative of the rights of its state of nationality. As a broad based source of international maritime rights and obligations, the 1982 Convention on the Law of the Sea (LOSC, or colloquially, the "Constitution of the Oceans") 84 currently contains the most robust provisions for claims asserted by either affected states or subsea proprietors.
The legal status of pipelines in waters beyond national urisdiction has been associated with the status of submarine cables. Without the LOSC, two operative treaties for international cables exist: the 1884 International Convention for Protection of Submarine Telegraph Cables (Cable Convention), and the 1958 Geneva Convention on the High Seas.87 These treaties deal with laying and repairing cables on the high seas-not in Exclusive Economic Zones (EEZ) and upon the continental shelf8.8 Moreover, they do not afford commercial owners significant deterrence against depredations.
Ambiguity, coupled with our extreme reliance on undersea infrastructure, was on display in late January and early February 2008. Four undersea telecommunication cables were mysteriously cut within the course of two days, crippling Internet access across wide swaths of the Middle East and India.59 Two cable breaks were in the Mediterranean--one near Alexandria, Egypt, and the other in the waters off Marseille, France.60 The third break was thirty-five miles off the coast of Dubai and the fourth was along a cable linking the United Arab Emirates to Qatar.61 Most telecommunication experts and operators deemed sabotage unlikely, believing instead that ship anchors had severed the cables when heavy storms swept through the region.62 Nevertheless, the Egyptian Ministry of Communications refuted the presence of any ships near the Mediterranean cable cuts.63 Moreover, the improbable incidence of four cuts in 48 hours fueled speculation about military involvement.64 Sabotage theorists seized on reports of stifled Internet traffic through Iran,65 while traffic to Israel, Lebanon and Iraq was apparently immune from chaos.66 At the very least, this episode highlights how relatively small damage to undersea cables can instantly affect millions of people, and how a stealthy underwater attack- ambiguous and non-attributive in nature-could deal such a crippling blow.
However, as Groves warned, acceding to the treaty “would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or even through the atmosphere. Regardless of the case’s merits, the U.S. would be forced to defend itself against every such lawsuit at great expense.”
Litigation could occur in several venues: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, and a “special” arbitral tribunal. There would be no appeals and all suffer from political elements which would interfere with the delivery of genuine “justice.” Indeed, noted Groves, the U.S. “has suffered adverse judgments in high-profile international lawsuits in the past.”
LOST would reinforce the litigation danger by creating obligations directly enforceable by U.S. courts. Annex III, Article 21(2) of the treaty states that tribunal decisions “shall be enforceable in the territory of each State Party.” In a 2008 case Supreme Court Justice John Paul Stevens contrasted another treaty with LOST, which, he wrote, did “incorporate international judgments into international law.” As a result, U.S. judges would become international enforcers.
Two decades ago environmental lawyers Durwood Zaelke and James Cameron wrote about the possibility of low-lying islands suing industrialized states over rising sea levels. Unfortunately, the prospect of international lawsuits is more than the gleam of an academic’s eye.
The Pacific island state of Palau announced last September that it would seek a ruling from the International Court of Justice barring nations from allowing emissions from their territory to cause climate change affecting other countries. Palau indicated that it would rely on LOST as well as the Kyoto Protocol. A decade ago Fiji, Kiribati, Nauru, and Tuvalu, also Pacific islands, threatened to sue under LOST, though as yet have not filed. Groves suggested that mountainous nations could similarly sue over shrinking glaciers. One could imagine other states claiming damages based on drought, desertification, or other alleged consequences of global warming.
The issue of climate change is extraordinarily complex. The best evidence is that the planet is warming, but the role of human activity and impact on the environment are far less certain and remain highly controverted. Nor is it possible to demonstrate causation between any particular emission and any particular consequence. There may be good political reasons to mitigate the distress of island countries, but such matters belong in international negotiations, not international courts.
Although LOST focuses on the high seas, it includes language covering domestic pollution. The provisions are surprisingly expansive, or “stunning in their breadth and depth,” as Steven Groves of the Heritage Foundation observed in a new study. A decade ago Ireland relied on LOST to sue Great Britain over the commissioning of a mixed oxide plant because of the latter’s alleged impact on the Irish Sea. The plant had been approved not only by Britain, but also the European Union (EU). Ireland dropped the suit, but only because the EU sued Ireland for not filing its case in the European Court of Justice.
Many environmentalists believe that LOST could be used against the U.S. in the same way. A few years ago an environmental activist mistakenly sent me an email after our debate on the treaty. He acknowledged that it might be difficult to convince Americans that the treaty would not similarly bind America when the World Wildlife Federation and Citizens for Global Solutions were promoting LOST by claiming that the convention would stop Russia from polluting the Arctic. He worried that this inconsistency suggested that the treaty was in fact “some kind of green Trojan Horse.”
It is. Groves noted that “Some environmental activist groups have already demonstrated a propensity for supporting, participating in, and in some cases actually filing climate change lawsuits against U.S. targets, as well as taking other legal actions relating to the marine environment in U.S. courts and international forums.”
Opposition in the United States to ratification of UNCLOS has largely been based on arguments relating to U.S. sovereignty and the power of international organizations. Libertarian and conservative groups have said the treaty would reduce U.S. ability to move its Navy in waters heretofore understood to be open, international waters. Others have pointed to the International Seabed Authority, alleging it is too powerful since under UNCLOS it has made the power to explore deep-sea minerals no longer simply a matter of determining who was there first with a capability to exploit the resources.
Voices against ratifying UNCLOS generally have been politically conservative. With the Arctic issues rising to the surface, core conservative constituencies -- business and foreign policy hawks -- see significant threats emanating from nonparticipation and clear benefits to participation.
As the Arctic issues proliferate, however, conservatives and the foreign policy establishment are beginning to view sitting on the sidelines as increasingly disadvantageous -- as is the military. Gen. Peter Pace, chairman of the Joint Chiefs of Staff, has called U.S. ratification of the treaty "a top national security priority." With the military, conservative foreign policy establishment and business joining together in support of ratification, the remaining conservative voices cautioning against sacrificing sovereignty have become increasingly isolated.
From the U.S. perspective, the crucial issue is not merely the minerals that it can claim, but the potential for a major shift in the relative mineral wealth of Russia vis-a-vis its neighbors. A growing dispute between Russia and Norway is perhaps the most important of these. In 2001, Russia submitted its definition of its continental-shelf borders. Russia's claim is widely considered a significant overreach, since it claimed a shelf extending almost to the North Pole and it made territorial claims that impinged on oil- and natural gas-rich Norwegian claims (claims that have long been widely, if informally, acknowledged as belonging to Norway) in the Barents Sea. Though Norway's claim, released in late 2006, is in some ways more realistic, it appears to have been drafted to meet Russia's aggressive claim in kind.
With Russia increasingly aggressive in its use of oil and natural gas as a lever against Europe, it will fall in part to UNCLOS (and possibly the CLCS) to make decisions that will affect the reserves and production potential of Norway and Russia.
As it stands now, the CLCS is highly unlikely to support one side over the other, and it will throw the decision over the extent of continental shelf ownership to the two countries to negotiate, a resolution that bodes ill for Norway. Treaty advocates say this would not necessarily be the case if the United States were involved in the organization.
National security-focused advocates in the United States say the country's nonparticipation in UNCLOS shuts out Washington from being able to meaningfully influence how UNCLOS resolves the disputed claims. Industry, from oil and natural gas producers to their major customers in the chemical and transportation industries, also wants the United States to have a seat at the table.
The debate over U.S. UNCLOS ratification is a familiar one. It focuses on whether it is better for the United States to be inside a flawed, sometimes troublesome international system where Washington can exert power to minimize the damage the organization can do, or to remain outside such an organization, unfettered by the agreements others are making. Since the Reagan administration, the United States has generally followed the latter approach, one favored by politically conservative factions.
The emerging Arctic-related issues challenge this prevailing approach, however. Being outside UNCLOS has reduced U.S. ability to influence debates that are increasingly relevant to the country's primary interests. In response, a powerful coalition of industries, environmentalists and hawkish foreign policy groups and the Bush administration have aligned in support of the treaty -- though not yet in a coordinated manner. Traditionally conservative political groups are coming to view the price of nonparticipation as growing in relation to the sacrifices of signing on. As a result, entrenched interests aligned against the treaty are shrinking, and the question increasingly appears to be one of when UNCLOS will be ratified, not whether.
But some, like Sen. James Risch (R-ID), have posited that ratification would compromise our sovereignty by forcing the United States to abide by other treaties and impose overly restrictive environmental regulations. Insinuating that ratification of Law of the Sea could force the United States to join other international agreements on climate change or other environmental protections, Sen. Risch told Secretary of State Hillary Clinton at a Foreign Relations Committee hearing last month that the Law of the Sea treaty had “Kyoto written all over it,” a reference to the Kyoto Protocol, the international agreement linked to the U.N. Framework Convention on Climate Change. In response, Secretary Clinton cited the State Department legal team, saying, “there is nothing in the [Law of the Sea Convention] that commits the United States to implement any commitments on greenhouse gases under any regime, and it contains no obligation to implement any particular climate change policies.” While Sen. Risch and his allies would likely disagree with such claims, they cannot deny that diplomats such as Secretary Clinton are the very people who would establish the U.S. position. So whose opinion should carry more weight: protectionist fear mongers or actual diplomats and policymakers?