Evidence: Recently Added
There is no reason to believe that the Arctic region will be characterized by military conflict between and among Arctic and non-Arctic nations. The U.S. Department of Defense maintains that there is a “relatively low level of threat” in the Arctic region because it is “bounded by nation states that have not only publicly committed to working within a common framework of international law and diplomatic engagement, but also demonstrated ability and commitment to doing so over the last fifty years.”9
The “relatively low level of threat” in the Arctic is reflected in the aforementioned Arctic policy documents. While these documents call for improvements in Arctic infrastructure, they do not call for any significant military buildup in the region. These policy documents also indicate that there is minimal overlap between U.S. national security interests in the Arctic and U.S. accession to UNCLOS.
Until our prolonged non-adherence to the 1982 Convention, the United States has been the world leader in protecting the common interest in navigational freedom and the rule of the law in the oceans. We have at least temporarily forfeited that leadership by our continued non-adherence. United States ratification of the Convention will restore that leadership. Specifically, ratification will have the following effects, among others:
- The United States will be able to take its seat on the Council of the International Seabed Authority. The authority is currently considering a mining code with respect to polymetallic sulfides and cobalt crusts of the deep seabed. Council membership will also give us important veto rights over distribution of any future revenues from deep seabed exploitation to national liberation groups;
- The United States should, at the next election of judges for the International Tribunal for the Law of the Sea, see the election of a United States national to this important tribunal. Since this Tribunal frequently considers issues relating to navigational freedom and the character of the 200 mile economic zone it is a crucial forum for the development of oceans law;
- The United States should, at the next election of members of the Commission on the Limits of the Continental Shelf, see the election of a United States expert to the Commission. This Commission is currently considering the Russian claim in the Arctic that is of real importance for the United States (and Alaska) and for appropriate interpretation of the Convention respecting continental margin limits. Over the next few years the Commission will begin to consider many other shelf limit submissions, beginning next with Australian and Brazilian claims. This is also the Commission that ultimately must pass on a United States submission as to the outer limits of our continental shelf beyond 200 nautical miles. The early work of the Commission, as it begins to develop its rules and guidelines, could significantly affect the limits of the United States continental shelf. Not to actively participate in the work of this Commission could result in a loss of thousands of square kilometers of resource-rich United States continental shelf;
- The United States will be able to participate fully in the annual meeting of States Parties that has become an important forum for ongoing development of oceans law. Of particular concern, United States presence as a mere observer in this forum has in recent years led to efforts by some to roll back critical navigational freedoms hard won in the LOS negotiations where we were a leader in the negotiations and our presence was powerfully felt; and
- The United States will be far more effective in leading the continuing struggle against illegal oceans claims through our participation in specialized agencies such as the International Maritime Organization; in bilateral negotiations such as those with the archipelagic states; in acceptance by other states of our protest notes and our ability to coordinate such notes with others; and generally in organizing multilateral opposition to threats to our oceans interests and the rule of law in the oceans.
Reclaiming United States deep seabed mineral sites now virtually abandoned. United States firms pioneered the technology for deep seabed mining and spent approximately $200 million in claiming four first-generation sites in the deep seabed for the mining of manganese nodules. These nodules contain attractive quantities of copper, nickel, cobalt and manganese and would be a major source of supply for the United States in these minerals. Paradoxically, 'protecting' our deep seabed industry has sometimes been a mantra for non-adherence to the Convention. Yet because of uncertainties resulting from U.S. non- adherence these sites have been virtually abandoned and most of our nascent deep seabed mining industry has disappeared. Moreover, it is clear that without U.S. adherence to the Convention our industry has absolutely no chance of being revived. I believe that as soon as the United States adheres to the Convention the Secretary of Commerce should set up a working group to assist the industry in reclaiming these sites. This working group might then recommend legislation that would deal with the industry problems in reducing costs associated with reacquiring and holding these sites until deep seabed mining becomes economically feasible;
Supporting the United States interest in fostering the rule of law in international affairs. Certainly the promotion of a stable rule of law is an important goal of United States foreign policy. A stable rule of law facilitates commerce and investment, reduces the risk of conflict, and lessens the transaction costs inherent in international life. Adherence to the Law of the Sea Convention, one of the most important law- defining international conventions of the Twentieth Century, would signal a continuing commitment to the rule of law as an important foreign policy goal of the United States;
The United States would obtain the benefit of third party dispute settlement in dealing with non-military oceans interests. The United States was one of the principal proponents in the law of the sea negotiations for compulsory third party dispute settlement for resolution of conflicts other than those involving military activities. We supported such mechanisms both to assist in conflict resolution generally and because we understood that third party dispute resolution was a powerful mechanism to control illegal coastal state claims. Even the Soviet Union, which had traditionally opposed such third party dispute settlement, accepted that in the law of the sea context it was in their interest as a major maritime power to support such third party dispute settlement.14
That security gap should be of international concern for a number of reasons. The first successful hostile ac- tions by pirates and terrorists against active international cables already have occurred. In March 2007 Vietnamese pirates in multiple vessels carried out high-seas depredations on two active submarine cable systems, including the theft of optical amplifiers that rendered the systems inoperative for 79 days until re- placements could be manufactured.4 At the time, cable owners urgently pleaded with at least four nations for help in preventing ad- ditional attacks, only to learn that none of those governments had contingency plans for such action. Similar damage was inflicted on a newly laid cable in Indonesian archipelagic waters in 2010.
Submarine cables are legitimate targets of belligerents in war.5 The United States cut cables linking Spain to its colonies during the Spanish-American War.6 The first offensive action of Britain’s Royal Navy in World War I was cutting Germany’s international links to the rest of the world by severing its cables.7
But attacks on cables by terrorists are new. On 11 June 2010, terrorists in the Philippines successfully struck an international cable.8 It is naïve to assume that submarine- cable landing stations, cables, the cable ships, and the marine depots that maintain the systems will escape asym- metric terrorist acts.
International treaties require states to enact laws providing for criminal sanctions against wrongdoers and vessels that injure international cables willfully or by culpable negligence.2 But compliance is poor.
Australia and New Zealand have modern and extremely effective deterrent laws that generally comply with the U.N. Convention on the Law of the Sea (UNCLOS). In both nations proactive monitoring of cables and effec- tive enforcement of domestic laws has essentially reduced cable faults to zero. But other countries, such as the United States and the United Kingdom, have telegraph-era stat- utes dating to the 1880s that are historical relics having virtually no practical utility.
In the United States, for example, the intentional destruction of an international submarine cable is subject to a ridiculously lenient maximum fine of $5,000 and a prison term of six months.3 The only known attempt to use the archaic law came in 1997, when the U.S. Coast Guard recommended to the U.S. attorney in Florida thathe skipper of a fishing vessel be prosecuted for willfully damaging the U.S.-Cuba cable. The attorney declined to prosecute, deeming the pursuit of a conviction carrying such a paltry penalty to be an inefficient use of his re- sources. Additionally, that sort of handicap for U.S. telecommunications companies is significantly compounded because the United States has not joined the 162 nations that are parties to UNCLOS. Thus there is no UNCLOS protection for their cables outside U.S. territorial seas.
While the United States justifiably can be criticized for allowing its domestic law protecting cables to sink into obsolescence, many nations have no laws whatsoever addressing damage to international cables—even though their economies depend on the critical global infrastructure.
The importance of modern fiber-optic cables to the global economy and the Internet cannot be overstated. In the case of the United States, about 36 submarine cables, each the diameter of a garden hose, carry more than 95 percent of the nation’s international voice, data, and video communications.
Every day the Society for Worldwide Interbank Fi- nancial Telecommunications transmits 15 million mes- sages over cables to more than 8,300 banking organiza- tions, securities institutions, and corporate customers in 195 countries. The Continuous Linked Settlement Bank located in the United Kingdom is just one of the critical market infrastructures that rely on those transmissions, providing global settlement of 17 currencies having an average daily equivalent of approximately $3.9 trillion. Similarly, the U.S. Clearing House Interbank Payment System processes in excess of $1 trillion a day to more than 22 countries for investment companies, securities and commodities exchange organizations, banks, and other financial institutions.
The popular belief that international communications are carried largely by satellite is false. The tremendous volume of data carried on less expensive, modern fiber- optic submarine cables dwarfs the limited capacity of the higher-cost satellites. Additionally, the technical transmission delays and other quality limitations inher- ent in satellites make them marginal for continuous transmission of high-speed voice, video, and data traf- fic. If the cables connecting the United States to the world were cut, it is estimated that every single satellite in the sky combined could carry only 7 percent of the current total traffic volume.
Referring to the submarine cable networks, the Federal Reserve’s staff director for management, Ste- phen Malphrus, observed that “when the communication networks go down, the financial sector does not grind to a halt, it snaps to a halt.” The same can be said for most sectors enmeshed in the global economy through the Internet, including shipping, airlines, and manufacturing.
Open economic access to the South China Sea maritime commons is a second U.S. interest, but one which may diverge from freedom of navigation. Access to the resources of the high seas is an important enough U.S. interest to stall the ratification of UNCLOS for nearly 20 years. The United States remains outside the treaty, however, and holds less influence over how maritime law is interpreted and evolves, and thus is at a disadvantage to shape events like whether the South China Sea becomes a wholly divided and claimed sea. Such arrangements as a Joint Development Zone or a Joint Management Zone could stabilize the area and provide stability and economic development for its participants. To support any of the joint development solutions, the United States would have to place its security interests over potential economic ones.
U.S. ratification of UNCLOS is another important step to influence the evolution of future interpretations of freedom of navigation toward more open stipulations than some of the states around the South China Sea now espouse. Although a more difficult proposition, the United States should demand the clarification of the historic claims made in the South China Sea, in order to facilitate negotiating a settlement, accelerate economic development, and remove the potential of shutting down all foreign navigation through the region. Support to Vietnam’s current islet occupations in the Spratlys, its claims to coastal EEZ and continental shelf areas in compliance with UNCLOS, and specific historic economic rights could wean Vietnam from its otherwise weak historic claims, and start sincere bargaining by linking the Paracel and Spratly disputes in a comprehensive agreement. The United States has less influence to change China’s position on historic rights because the ambiguity of its positions has served China well. Here, appealing to China’s future role in world politics may help to change its parochial freedom of navigation perspective into a more global one like the United States holds.