U.S. could rely on bilateral treaties as an alternative to UNCLOS regime
The United States can successfully pursue its national interests regarding its extended continental shelf by negotiating on a bilateral basis with nations with which it shares maritime borders to delimit and mutually recognize each other’s maritime and ECS boundaries.
Quicktabs: Arguments
In conclusion, these interactions and potential conflicts in the regime applicable to submarine cables regime make further ground arise for the integrated planning and management of activities in ocean and coastal areas.
The scholarship has repeatedly affirmed that such a cooperation and integration of different interests would be best achieved by means of the elaboration of a new international convention. However, it has to be pointed out that disruptions to the integrity of submarine cable systems potentially cost cable companies millions of dollars in repairs and lost revenues from e- commerce and telecommunications.29 In this perspective, rather then spending efforts to negotiate a new Convention on submarine cables, a solution – at least a partial one – can be represented by increasing the cooperation between all actors involved (privates and States) by means of BITs. This would help minimizing the risks of interferences and protect the interests of all the parties involved. As South-East Asia currently represents the most-relevant market for the lay of submarine cables, particular attention in the following analysis will be given to the BITs practice in the region.
The inadequacy of the regime provided by the law of the sea to effectively protect submarine cables, the relevance of which in national economies increases as time goes by, is hardly questionable. The UNCLOS, in particular, is a ‘constitutional’ convention, one that needs other instruments to be put in place in order to ensure the effectiveness of most of its provisions. As stated beforehand, BITs can provide only a partial solution to the problem – in other words, they can represent a solution only in those areas where coastal States exercise their sovereignty. In the high seas and in those areas where the sovereignty of a State is limited by the rights and duties of other States, BITs clearly cannot be a suitable solution. However, BITs and investment law in general can nonetheless represent a model worth following to fill the remaining lacunae of the law of the sea in the regime applicable to submarine cables. The lesson to be learned from investment law is that the multilateral approach is not necessarily the most appropriate. In investment law, the bilateral approach has been proven as successful as it allows each State to pursue their interest at the local level by negotiating the level of protection they deem appropriate in a particular State or region for their nationals. BITs could be a suitable instrument to reach effective and constant protection for submarine cables. Alternatively, bilateral or small multilateral treaties could help to solve once and for all the problem of the current inadequacy of the law of the sea in terms of protection of submarine cables.
Can Resources Be Developed without LOST? The first argument — that LOST will advance the development of the seabed — is outlined in a letter from the U.S. Chamber of Commerce, sent to the U.S. Senate in July 2012:
“America’s extended continental shelf, which in some areas extends hundreds of miles beyond U.S. territorial waters, contains abundant oil and natural gas reserves that can provide reliable, affordable energy to America’s homes and factories for decades to come — but only if the Senate acts to approve Law of the Sea. Likewise, by joining the Convention, U.S. companies would gain exclusive access to abundant rare earth mineral resources that are essential to high-tech manufacturing. China currently controls 90 percent of the world supply of rare earth minerals. Law of the Sea represents America’s best opportunity to take control of its own resource destiny. No U.S. company will make the multi-billion- dollar investments required to recover these resources without the legal certainty the Convention provides.”30
This argument is demonstrably false. U.S. companies are already successfully investing in an area of the extended continental shelf — the “western gap” in the Gulf of Mexico.31 There are two areas of submerged continental shelf in the Gulf, outside the Exclusive Economic Zones of both the United States and Mexico, known as the Western Gap and the Eastern Gap. The Eastern Gap shares a nautical boundary with Cuba, and its precise boundaries have not been negotiated. The boundaries of the Western Gap, however, were defined by a treaty signed with Mexico in June 2000.
This bilateral treaty has allowed both nations to proceed with confidence in developing the extended continental shelf in the Western Gap. No objections have been raised to the bilateral treaty and none are expected. As a result, the U.S. Bureau of Ocean Energy Management has sold development rights in the Western Gap in several auctions since the treaty was ratified in 2001.
What of the Arctic? A 2011 Bloomberg BusinessWeek editorial argued:
“The U.S. continental shelf off Alaska extends more than 600 miles into the Arctic Ocean. American companies have been reluctant to invest in exploiting this underwater terrain, which contains vast untapped reserves of oil and natural gas. That’s because the U.S., as a nonparticipant in the sea convention, has no standing to defend its ownership of any treasures that are found there.”32
Yet this is exactly the same case as in the Gulf of Mexico. Only three nations contest the ownership of resources in the extended North American continental shelf in the Arctic: the United States, Canada and Russia. American relations with Canada are friendly; therefore, a United States-Mexico-style treaty with Canada demarcating appropriate lines north of Alaska should be relatively easy to achieve. Russia might be perceived as a more intractable problem; but a 1990 treaty between the United States and the Soviet Union defines the maritime boundary between the two powers.33
Under the Treaty, Russia has claimed vast areas beneath the Arctic Ocean, but these claims in no way infringe upon the 1990 Treaty. Actually, they are a challenge to Canada rather than the United States. South of the Arctic Ocean, the treaty line protects U.S. claims to large areas of extended continental shelf in the Bering Sea and in the Pacific Ocean southwest of the Alaskan Aleutian Islands. Accordingly, there is no barrier (barring the low one of a necessity to negotiate a treaty with Canada) to the United States developing the extended continental shelf in the Arctic and its environs in the same way it has in the Western Gap.
The major remaining U.S. ECS boundary to be determined in the Arctic is shared by the United States and Canada. As was the case with Russia, the U.S. and Canada have approached the demarcation of this boundary cooperatively. The two nations have a mutual interest in determining the extent of their respective continental shelves and identifying their respective areas of ECS.
To that end, the U.S. and Canada have conducted a series of joint scientific operations in the Arctic to collect bathymetric and seismic data to map the continental shelf.40 These data will enable the United States and Canada to negotiate a bilateral treaty delimiting their respective continental shelves and areas of ECS in the Arctic Ocean in the same manner as the U.S. and Mexico did in the Gulf of Mexico. United States need not join the convention to demarcate areas of its Arctic EEZ and ECS, secure jurisdiction and control over these areas, and develop the hydrocarbon resources in these areas. Such demarcation has been and will continue to be conducted in cooperation with neighboring Arctic nations regardless of whether the U.S. is a UNCLOS member.
Yet history has repeatedly and definitively debunked the notion that recognition of U.S. ECS claims is contingent on U.S. membership in UNCLOS or on the approval of an international commission. To the contrary, through bilateral treaties with the Cook Islands, Cuba, Mexico, Russia, the united Kingdom, and Venezuela, the United States has successfully established its various maritime boundaries and the limits of its continental shelf and ECS.
The United States has also acted unilaterally through presidential proclamations and acts of Congress to set its maritime boundaries and lay claim to the natural resources within its maritime zones and continental shelf:
- In 1945, President Harry Truman issued two proclamations. The first, the Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, claimed jurisdiction and control over the natural resources of the U.S. continental shelf.27 Truman’s second proclamation established a conservation zone for U.S. fishery resources contiguous to the U.S. coast.28
- In 1953, Congress codified Truman’s continental shelf proclamation by enacting the Outer Continental Shelf Lands Act, which declared that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition.”29
- In 1983, in the wake of his decision not to sign UNCLOS, President Reagan proclaimed the existence of “an exclusive economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast.”30 In 1988, Reagan followed up his EEZ proclamation by extending the breadth of the U.S. territorial sea from 3 nm to 12 nm.31
- In 1999, building on Reagan’s maritime proclamations, President Bill Clinton extended the U.S. contiguous zone from 9 nm to 24 nm.32 No nation or group of nations, much less the “international community” as a whole, has objected to or otherwise challenged the unilateral proclamations by Presidents Truman, Reagan, and Clinton. No nation disputes that the United States has a 12 nm territorial sea, a 24 nm contiguous zone, a 200 nm EEZ, or jurisdiction and control over the natural resources of its continental shelf and ECS. In fact, foreign nations recognize and respect U.S. maritime claims and boundaries, and vice versa, as long as those claims and boundaries conform to widely accepted international law, including provisions of customary international law reflected in UNCLOS.
Finally, one unique course may be to avoid a solution under public international law entirely, and instead, the Arctic coastal states may find a remedy through private international law, perhaps through the humble bilateral investment treaty. Interestingly, private enterprise has accommodated for an increasingly volatile environment of energy exploitation—an environment in which investors have grappled with governmental expropriation, unilateral changes to the tax regime, or other sources of economic and political instability.131 If the coastal states were to enter into a bilateral investment treaty specifically for the benefit of the oil and gas industry, the diplomatic negotiations over such a treaty may accomplish what an ATS-style structure, the CLCS, or any one of the formalists' legal “solutions” never could: provide the Arctic with a stable legal regime. Because bilateral investment treaties often include dispute resolution, security, investment protections, and a host of other facilitating mechanisms, many of the Arctic's chilling effects on energy development may be avoided.132 While the exact nature of such a bilateral investment treaty is beyond the scope of this Article, an agreement under private international law could be a plausible way forward.
LOST in the Arctic. The U.S. Arctic Region Pol- icy urges the Senate to approve U.S. accession to LOST. However, the U.S. can execute its Arctic policy without ratifying LOST.
At present, America is not bound by the treaty’s procedures and strictures, but the U.S. is pursuing its claims under international law as an indepen- dent, sovereign nation, relying on President Harry S. Truman’s Presidential Proclamation No. 2667, which declares that any hydrocarbon or other resources discovered beneath the U.S. continental shelf are the property of the United States.4 The U.S. has shown that it can successfully defend its rights and claims through bilateral negotiations and in multi- lateral venues, such as through the Arctic Ocean Conference, which met in Greenland in May 2008.
The U.S. ECS Task Force is actively collecting data in other areas around the globe where the United States has presumptive areas of ECS. In addition to the Arctic Ocean and the Bering Sea, the task force has surveyed potential ECS areas off the U.S. Atlantic and Pacific Coasts, in the Gulf of Alaska, around the Kingman Reef and Palmyra Atoll, at the Necker Ridge near Hawaii, in the Northern Mariana Islands, and near Guam.43
Once the mapping is complete, the United States will be in a position to negotiate ECS boundary treaties with nations that have maritime or continental shelf boundaries appur- tenant to U.S. territories, including Japan and Micronesia (in regard to potential ECS associated with the Northern Marianas); Kiribati (in regard to the Palmyra Atoll); and the Bahamas (in regard to the southern end of the U.S. Atlantic Coast). The United States and Canada will need to negotiate one or more treaties to delimit potential areas of ECS located in the Gulf of Alaska and areas associated with their Atlantic and Pacific maritime borders.
To summarize, despite dire warnings from the proponents of U.S. accession to UNCLOS, actual events demonstrate that the United States need not join the convention to delimit areas of its ECS, secure jurisdiction and control over those areas, and commence development of the hydrocarbon resources beneath the ECS. The United States is actively doing so in several crucial, resource-rich regions, including the Gulf of Mexico, the Arctic Ocean, and the Bering Sea. Such delimitation has been and will continue to be conducted in cooperation with neighboring countries, including Mexico, Russia, and Canada, regard- less of whether the U.S. is a member of UNCLOS.
Despite the claims of UNCLOS proponents, the United States can successfully pursue its national interests regarding its ECS—particularly oil and gas exploitation—with- out first gaining universal interna- tional recognition of its outer limits. While such recognition may be a worthy achievement, it is of no consequence to U.S. national interests whether the 195 nations of the world affirmatively recognize America’s jurisdiction over its ECS in the Gulf of Mexico, the Arctic Ocean, and elsewhere.
While achieving unanimous international recognition for the borders of the U.S. ECS is unnecessary, it is important for the U.S. to negotiate on a bilateral basis with nations with which it shares maritime borders to delimit and mutually recognize each other’s maritime and ECS boundaries. This process is already underway in regions where the United States has presumptive areas of ECS, including resource-rich areas in the Gulf of Mexico and the Arctic Ocean.