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.
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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.
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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.