U.S. ratification of UNCLOS is not necessary for development of offshore oil and gas industry
U.S. does not need to ratify UNCLOS to develop hydrocarbon resources beneath the ECS -- development is actively underway already and further development can occur thrigh bilateral agreements with neightboring countries.
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Opponents of UNCLOS claim that accession will also harm U.S. commercial interests in the world‘s oceans. The provisions on seabed mining, in particular, are seen as an attempt at international wealth redistribution.65 Additionally, there is a fear that the ISA would have the power to enforce an international tax on resources extracted from the seabed.66
Although these commercial concerns resonate with many economic conservatives, they are among the easiest to debunk, primarily by examining the economic consequences the United States will face if it does not accede. Claims to mineral rights in the Arctic are governed by UNCLOS provisions on an extended continental shelf, and the United States may lose these claims without representation on the ISA or State Party status.67 Additionally, many economic concerns ring hollow in the face of favorable opinions of the treaty by U.S. industries affected by such regulations.68 For example, the oil and gas industries have agreed to pay any tax levied on deep seabed extractions.69
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Even though approximately 20 percent of the only area of U.S. ECS that has been made available for lease by BOEM is currently under an active lease, the U.S. oil and gas industry has supported and will likely continue to support U.S. accession to UNCLOS in order to achieve even greater “certainty.” That is their prerogative, of course, and achieving a maximum amount of certainty is a legitimate and desirable goal for a capital-intensive commercial enterprise. However, the successful delimitation of the ECS in the western gap and the U.S. government’s continuing lease sales of ECS blocks would appear to have provided the certainty necessary for several major U.S. and foreign oil exploration companies to secure leases for the development of the U.S. ECS.
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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.
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Reality tells a different story. The ECS area on the U.S. portion of the western gap has been available for development since August 2001. Specifically, the Bureau of Ocean Energy Management (BOEM)22 offered the northern portion of the western gap for lease almost immedi- ately after the 2000 U.S.–Mexico ECS delimitation treaty was ratified. That treaty entered into force on January 17, 2001. Seven months later, on August 22, BOEM offered the area of U.S. ECS in the western gap in Lease Sale 180. In that lease sale, three U.S. companies (Texaco, Hess, and Burlington Resources Offshore) and one foreign company (Brazil’s Petrobras) submit- ted successful bids totaling more than $2 million for seven lease blocks in the western gap.23 BOEM has offered the ECS blocks in the western gap in 19 lease sales between August 2001 (Lease Sale 180) and March 2010 (Lease Sale 213). In connection with those sales, seven U.S. companies (Burlington, Chevron, Devon Energy, Hess, Mariner Energy, NARCA Corporation, and Texaco) submitted bids to lease blocks in the western gap. Five foreign companies—British Petroleum, Eni Petroleum (Italy), Maersk Oil (Denmark), Petrobras, and Total (France)—also bid on western gap ECS blocks during those sales. BOEM collected more than $47 million in bids in connection with lease sales on those blocks.
Of the approximate 320 blocks located in whole or in part on the western gap ECS, 65 (approximately 20 percent) are currently held under active leases by nine U.S. and foreign oil exploration companies.24
The successful delimitation and subsequent leasing of areas in the Gulf of Mexico demonstrate that the United States does not need to achieve universal international recognition of its ECS. The United States identified and demarcated areas of ECS in the western gap in cooperation with the only other relevant nation, Mexico, and that area was subsequently offered for development to U.S. and foreign oil and gas companies.25 All of this was achieved without U.S. accession to UNCLOS or CLCS approval.
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Proponents of UNCLOS offer no evidence that any foreign nation has not recognized or will not recognize the unilateral proclamations made by the United States. yet the same proponents contend that the United States cannot hope to gain recognition of its ECS or assert jurisdiction and control over it unless and until it joins the convention. Law of the sea experts such as Ted McDorman at the University of Victoria disagree with that position:
It can be asked whether a non- party to the LOS Convention can legally exercise jurisdiction over its adjacent continental margin beyond 200 nautical miles or whether this entitlement is only available to parties to the LOS Convention. The answer is that there appears to exist sufficient state practice ... to support the view that, as a matter of customary international law, states can legally exercise jurisdiction over the continental margin beyond 200 nautical miles irrespective of the State’s status as a LOS Convention ratifier.11
No evidence suggests that mem- bership in UNCLOS is necessary, much less essential, either to gain international recognition of the U.S.’s ECS boundaries or to claim, legally and legitimately, jurisdiction and control over its ECS resources. It is telling that proponents of U.S. accession to UNCLOS do not claim that international recognition of the U.S. territorial sea, contiguous zone, or EEZ is contingent upon U.S. accession to the convention, yet they assert that accession is the sine qua non for international recognition of the U.S. ECS.12