Risks to companies from engaging in resource extraction without UNCLOS protection are greater than risks from UNCLOS added liability
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Third, U.S. companies have been unwilling to begin costly exploration and extraction activities in reliance on theoretical and untested legal arguments that have not been accepted by other countries and that are flatly contrary to the terms of Law of the Sea Convention. Companies instead want the clear legal certainty provided by the Convention before making investments that could run into the billions of dollars. Critics of the Convention who are concerned about the possibility of international litigation should be much more concerned about the possibility of lawsuits against the United States or U.S. companies if the United States were to engage in resource extraction on the U.S. extended continental shelf or on the deep seabed contrary to the terms of the Convention, than about possible environmental claims against the United States if the U.S. were to join the Convention. Moreover, a U.S. company that initiates deep seabed mining outside the Convention risks having a foreign company sponsored by a country that is party to the Convention jump on its claim after it has proven to be profitable. No U.S. company would want to take that legal risk.
Without the universally recognized legal regime governing the exploitation of the mineral resources of the deep-sea beyond the zones of national jurisdictions that UNCLOS provides, US companies will not assume the investment rights associated with such projects until it was clear who had “clear legal title” to the resources extracted.