Revision of U.S. underseas cable industry needs UNCLOS protection from Sun, 04/28/2013 - 15:02
Quicktabs: Arguments
Our economy is hurt when delimitation of our extended continental shelf is delayed and when legal uncertainties from non-membership prevent our oil and gas industry from exploiting the rich continental margin, especially in the Arctic. Development of resources in the Chukchi and Beaufort Seas off Alaska's coast would create approximately 54,700 jobs per year nationwide with a $145 billion payroll and would generate $193 billion in federal, state and local revenue according to a study done by the University of Alaska's Institute of Social and Economic Research.
The delay in ratifying this treaty has already cost the loss of one of our four seabed mine sites, the richest in the world, and if we do not soon adhere the United States risks losing the remaining three, with billions in the strategic minerals manganese, copper, cobalt and nickel at stake. A single seabed mining operation would spur the economy with total capital purchases of close to one and a half billion dollars and would stimulate robust job creation. Further, for our nation to lose this new industry would cost millions in consumer losses and foregone tax revenues and billions in our balance of trade as the United States was forced to import rather than produce these strategic minerals.
Undersea cables carry more than 95% of international Internet and telephonic transmissions. These crucial cables also transmit financial data and transactions worth trillions every day. The Convention establishes the legal underpinning for protecting and managing these cables. At a National Press Club event a spokesman for AT&T warned that not being a party places America's crucial communication links at risk.
In economic terms, Pike stressed that advances in technology have dramatically impacted the impor- tance of acceding to the Convention, particularly in terms of the nation’s economic security. Furthermore, he believes the treaty under consideration today is perceived far differently than it was when amended in 1994, just as the Internet was being introduced to the world.
“Now, we’ve got 95 percent of all of our Internet traffic, whether it’s orders for widgets, whether it’s science or military, all of this information travels on undersea cables, and we basically have no protection over those,” he said, illustrating why telecommunications giants like AT&T and Verizon, as well as the North American Submarine Cable Association, are among vocal advocates on Capitol Hill pushing for ratification. “These organizations strongly support the treaty because it affords us unfettered ability to lay and maintain these undersea cables, but undersea cables were sort of an afterthought in 1982.
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.
The urgency with which U.S. telecommunication companies need the Convention's specific protections for cables increases with each passing year. The Russian Federation since 1995 is claiming the right to delineate cable routes on its continental shelf in the Artie. These actions are violations of the Convention which does not allow a coastal nation to delineate or require permits for the routes of international cables or cable repairs outside territorial seas within the EEZ or upon the continental shelf. Without the United States being a party, U.S. telecommunication companies are on weaker grounds to question these actions, because the United States itself is held back from being able to enforce the Convention's freedoms to lay, maintain, and repair cables in the EEZ and upon the continental shelf.
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.
Under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions by third parties which damage a cable. But under the 1884 treaty, the cable owner must wait until the damage is done before these sanctions are triggered. In welcome contrast, under the 1982 Convention, third party conduct which is likely to result in damage is sanctioned in addition to actual damage cases. So the cable owner has a remedy to prevent the injury to critical infrastructure in the first place10. When one considers the average $1M plus cost repair a single cable and the disruption a cable break can cause to essential economic and strategic interests, it is easy to see why U.S. telecommunications companies need the United States to accede to the Convention.