Is it Time for the United States to Join the Law of the Sea Convention
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Is having a seat on the CLCS an important enough reason to join the Convention? Would having a seat on the CLCS really put the United States Government in a position to have a say in deliberations over other nations’ extended continental shelf claims? Again, the answer to both of those questions is, “no.” The CLCS was established to help facilitate the implementation of Article 76. As a body of scientific experts, however, the CLCS does not have veto power over coastal state submissions. It may only make rec- ommendations to the coastal state on matters related to the establishment of the outer limits of its continental shelf. Coastal states may accept or reject these recommendations. Annex II (Article 8) to the Convention and CLCS Rules of Procedure (Rule 53) simply require the coastal state to make a revised or new submission in the case of disagreement with the recommen- dations of the Commission. Additionally, Annex II (Article 2) limits the membership of the CLCS to 21 experts, so there is no guarantee that a U.S. representative would be elected to the Commission even if the United States was a party to the Convention. Moreover, even if elected, the U.S. repre- sentative would serve in a personal capacity (Annex II, Article 2(1); CLCS Rules of Procedure (Rule 11)) and would be precluded from voting on any submission tendered by the United States (Annex II, Article 5; CLCS Rules of Procedure (Rule 42)). Having a seat at the table on the CLCS would not put the U.S. Government in a position to have a say in deliberations over other nations’ claims and would therefore have minimal benefit for the United States. "
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Although the ISA has issued several self-serving statements that the “21st century is likely to see systematic efforts worldwide to develop the resources of the deep seabed,”4 the fact remains that it is questionable whether deep seabed mining will ever become economically viable, at least in the Area. With regard to cobalt-rich crusts, according to ISA fact sheets, prospective miners will first have to develop “detailed maps of crust deposits and a comprehensive, small-scale picture of seamount topography, including seismic profiles.” Yet, very few of the seamounts in the Area that potentially contain the richest deposits of cobalt crusts have been mapped and sampled in detail. More importantly, it has been determined that crusts containing the greatest concentration of minerals are found in shallow waters in areas under coastal state, not ISA, jurisdiction.5 Similarly, according to ISA fact sheets, only five percent of the 60,000 km of oceanic ridge worldwide that could contain deposits of polymetallic sulphides has been surveyed in any detail.6 Moreover, ISA fact sheets acknowledge that most technology for exploring and exploiting the seabed has been developed for use in shallower waters.7 This is particularly true for cobalt-rich crust mining, which is much more difficult than manganese-nodule mining – research and development of mining technology for crusts exploitation is in its infancy.8 Finally, proposed environmental standards being developed by the ISA to minimize the effects of deep seabed mining on the marine environmental will undoubtedly significantly raise the costs of deep seabed mining operations.
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A study by Christopher Garrison indicates that the overwhelming majority of seabed mining activities have taken place within the 200 nm limit, which is subject to coastal state rather than ISA jurisdiction and regulation.9 Even the ISA has acknowledged that “no sustained operations have taken place for the commercial recovery of solid minerals in water depths greater than 200 metres.”10 ISA fact sheets also indicate that the best potential for cobalt-rich crust mining is located in the EEZs of the United States (Johnston Island and Hawaii), the Marshall Islands and the Federated States of Micronesia.11 Similarly, the largest known deposit of polymetallic sulphides is located in the Red Sea within the EEZ of the coastal states and the first commercial mining of polymetallic sulphides is scheduled to occur within the EEZs of Papua New Guinea, Fiji and Tonga in 2010.12 None of these potential mining areas are subject to regulation or control by the ISA.
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With regard to freedom of movement: President Reagan’s 1983 Ocean Policy Statement stated that UNCLOS “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice . . ..”16 The International Court of Justice reached a similar conclusion in the 1984 Gulf of Maine case, albeit in the context of the continental shelf and EEZ articles, indicating that the Convention’s provisions were reflective of customary international law.17 In short, today, all of the important provisions of UNCLOS dealing with freedom of movement, such as the rights of innocent passage, transit passage, archipelagic sea lanes passage, and high seas freedoms seaward of the territorial sea, are considered by virtually all nations as a reflection of customary international law that is binding on all nations. Both our commercial shipping and military forces have exercised and enjoyed these rights for the past 25 years, during which time the United States has not been a party to UNCLOS. Clearly, the United States does not have to become a party to the Convention to exercise its navigational rights and freedoms worldwide. Iran is the only country that continues to maintain that the right of transit passage through the Strait of Hormuz applies only to State Parties to the Convention. What we need more than membership in another treaty is a coherent national policy that supports freedom of navigation and a strong Navy that can challenge excessive coastal state claims that purport to curtail our freedom of movement and restrict our access to the world’s oceans.
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While UNCLOS does contain provisions that encourage cooperation to combat illicit activities at sea, it could also be argued that some of the Convention’s provisions actually hinder such efforts. For instance, UNCLOS impedes maritime interception operations (MIO) in the territorial sea, where the coastal state enjoys “sovereignty” (Article 2). This raises a practical, not a hypothetical, problem for maritime security. Tens of thousands of tons of diesel fuel were smuggled out of Iraq in violation of UN Security Council Resolutions (UNSCR) 661 (1990) and 665 (1990) through the Iranian territorial sea. Coalition forces were aware that the smuggling activities were ongoing, but were unable to intervene because the UNSCRs did not authorize entry into Iran’s territorial sea to enforce the sanctions.18 In the case of counter-piracy operations off the Horn of Africa, UNSCR 1816 (2008) authorizes coalition forces to “enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea . . . and use, within the territorial waters of Somalia . . . all necessary means to repress acts of piracy and armed robbery,” but it falls short of authorizing entry into any other nation’s territorial sea to repress piracy and armed rob- bery at sea. In fact, during negotiations for UNSCR 1816, Indonesia, China and other states made clear that the Resolution did not set a precedent for future counter-piracy operations in any other nation’s territorial seas. Moreover, UNCLOS Article 111 requires coalition forces to break off hot pursuit of a vessel engaged in piracy on the high seas when that vessel enters the territorial sea of its own state or of a third state.
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Similarly, counter-proliferation efforts at sea are hindered by UNCLOS Article 92, which provides that “ships sail under the flag of one state only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.” That means that a warship must have the consent of the flag state or the master to board and search a foreign flag vessel encountered seaward of the territorial sea of another nation. The enforcement regime established in both UNSCRs 1718 (2006) and 1874 (2009), which ban most arms transfers to and from North Korea, is based on exclusive flag state jurisdiction. Although UNSCR 1874 contains an enhanced maritime cargo inspection regime, it is still dependent on flag state consent (Operative Paragraph 12). UNSCRs 1696 (2006), 1737 (2006), 1747 (2006) and 1803 (2008), which impose a similar ban on material related to Iran’s nuclear weapons program, are likewise based on flag state jurisdiction. Interdiction efforts on the high seas under other non-proliferation initiatives, like the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)19 adopted by the International Maritime Organization (IMO) and the Proliferation Security Initiative (PSI)20 announced by President Bush in March 2003 to combat the growing threat of WMD proliferation, also suffer from the same weakness – they are based on flag state consent. It is highly unlikely that Iran or North Korea will give consent to a foreign warship to board one of its vessels at sea. In short, in could be argued that UNCLOS allows North Korea and Iran to transport WMD-related materials with impunity, hiding behind the concept of exclu- sive flag state jurisdiction on the high seas.
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Regarding the PSI in particular, despite wide international support for the initiative – 95 participating states as of May 2009 – opponents to PSI have relied on UNCLOS to attack the legitimacy of the initiative. Clearly, coun- tries of proliferation concern like Iran and North Korea are going to oppose PSI. However, there are other important countries that object to the initia- tive, in part because of UNCLOS. For example, an article by Rick Rozoff discussing the PSI reports that Indian officials have described PSI as a “con- troversial U.S.-led multilateral initiative . . .” with “dubious legality . . .” that “undercuts a . . . multilateral and balanced approach to the problem of proliferation.”21 Rozoff further states that Malaysia’s Deputy Prime Minister has stated the PSI violates Malaysia’s national sovereignty and that Indonesia is also opposed PSI, indicating that the initiative violates UNCLOS. Similarly, Mark Valencia stated in an essay posted on the Nautilus Institute Policy Forum Online (08-043A: May 29, 2008)22 that China and Pakistan are also opposed to the initiative. Specific articles of UNCLOS cited by the opponents to PSI include Articles 17 and 19 (right of innocent passage), Article 33 (contiguous zone), Articles 38 and 39 (right of transit passage), Part V (EEZ), and Article 88 (high seas reserved for peaceful pur- poses).23
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Bottom line: any changes or reinterpretation of UNCLOS will more likely occur at the IMO, not the United Nations. Although UNCLOS may be amended through the simplified procedure set out in UNCLOS Article 313, it only takes one State Party to derail that procedure. Article 313(2) provides that “if . . . a State Party objects to the proposed amendment or to the pro- posal for its adoption by the simplified procedure, the amendment shall be considered rejected.” The only other way to amend the Convention is through the convening of a diplomatic conference under Article 312. As we saw with Third United Nations Conference on the Law of the Sea (UNCLOS III), getting consensus on sensitive maritime issues took nine long years and difficult negotiations to complete. Any proposed amendments to the Convention would probably face similar scrutiny by the State Parties at the conference.
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The United States has lived outside the Convention for the past 30 years without any serious adverse repercussions. To the extent U.S. oceans poli- cy has gone off-course during that period, the missteps have been from self- inflicted wounds, such as the Northern Right Whale MSRe system, the offshore oil drilling moratorium off California, the Northwest Hawaiian Islands PSSA designation, the 2009 Polar Bear critical habitat designation in the rich off-shore oil fields off Alaska, the 2007 and 2009 marine national mon- ument designations in the Pacific, and NOAA’s recent proposal to establish “hot spots” in the ocean to protect marine mammals from sonar use.31 So the question is – can we live without it for another 30 years? If CFR and the Obama Administration really believe that joining the Convention is critical to U.S. national interests, they will have to do a better job at explaining why it is important to become a party to the treaty. Relying on feeble arguments like the ones articulated in the CFR Expert Brief will, on the one hand, not convince the skeptics and, on the other, provide the Convention’s opponents with ample ammunition to undermine the Administration’s position. Let’s face the facts – although the Convention was well-intended when it was originally negotiated, it has failed to achieve many of its intended purposes. Deep seabed mining remains a pipedream. Creeping jurisdiction has not been curtailed – in fact, it has proliferated in some respects. Moreover, rather than reduce tensions, the Convention’s provisions on the EEZ and continental shelf have rekindled long-standing territorial disputes and disputes over fisheries and hydrocarbon deposits, in areas like the South and East China Seas, that have the real potential to result in serious conflict. Until we figure this all out, as long as we retain our leadership role at the IMO, maintain a strong, capable and well-trained Navy, and curtail our own excessive maritime claims in the name of environmental protection, U.S. ocean and national security interests will be preserved.