A Note on the United States and the Law of the Sea: Looking Back and Moving Forward
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U.S. courts, too, rely upon the 1982 Convention, not as an applicable governing document itself, but rather as the mirror that reflects customary international law. As early as 1994, U.S. federal appeals courts began citing the Convention as a device that reflected international law of the sea principles even though the Convention itself did not apply to the United States. Less than three weeks after the Convention entered into force in 1994 (for signatory/ratifying nations, but not for the United States) the Ninth Circuit Court of Appeals relied, in part, upon the “continuous and expeditious” clause of the Convention’s innocent passage definition to resolve a dispute regarding mooring laws off the coast of Hawaii.40 Two years later the First Circuit cited several of the Convention’s exclusive economic zone principles as applicable insofar as those principles were alluded to in U.S. Presidential Proclamations.41
In 1999, the First Circuit Court of Appeals referred to the applicability of certain provisions of the 1982 Convention, noting that while “[t]he Convention has been signed by the President, . . . it has not yet been ratified by the Senate. Consequently, we refer to UNCLOS only to the extent that it incorporates customary international law.”42 That same year, the Fourth Circuit cited provisions of the 1982 Convention regarding salvage law and high seas freedoms as binding, not as treaty law but as well-established customary law.43
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As already noted, Donald Rumsfeld played a key role in stopping the United States and other nations’ treaty ratification efforts in the 1980s. It is a compelling point, therefore, to note that Secretary Rumsfeld’s Defense Department urged Treaty accession in 2003. On October 21, 2003, a deputy assistant secretary of defense testified that the Convention is “critical to the United States Armed Forces.”53 The basis for Defense Depart- ment accession support was based in part on navigation rights deemed “critical to mili- tary operations” and “essential to the formulation and implementation of [U.S.] national security strategy.”54 While some have contended that these and other law of the sea rights could be exercised employing the “reflection” approach, the Defense Department identified certain additional benefits that would come only with accession, includ- ing participation in international maritime fora and Convention-established entities.55 Participation, noted the Defense Department representative, would allow the United States to “prevent the erosion of navigational rights and freedoms . . . [and work toward] international consensus proscribing the maritime trafficking of weapons of mass destruc- tion.”56 While recommending Treaty accession, the Defense Department did identify a number of issues that it deemed worthy of Senate attention, and one of these will be noted here.
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From the homeland security perspective, “public order of the oceans is best established and maintained by a stable, universally accepted law of the sea treaty reflective of U.S. national interest.”62 This testimony also alluded to the importance of being part of a global law-of-the-sea rule-making process. The Convention’s navigation freedoms and protections, noted the Department of Homeland Security’s representative, “allow the use of the world’s oceans to meet changing national security requirements,” suggesting that a non–state party would be at a disadvantage in fashioning what might be considered new ocean-borne security efforts.63
Another significant benefit in becoming a state party to the Treaty, noted the Homeland Security Department, would be the enhanced “ability to conduct interdiction operations and to refute excessive maritime claims.”64 Some U.S. efforts in the past had been questioned by states contending that certain treaty-based rights were not reflections of customary law. The Department also cited Convention Article 108 (requiring interna- tional cooperation in the suppression of illegal drugs) as a means by which the United States could hasten the implementation of the United Nations Convention against Illicit Traffic In Narcotic Drugs and Psychotic Substances.65 Finally, the Department support for accession highlighted the wide-ranging responsibilities charged to one of its core functional components, the United States Coast Guard. Accession, noted the statement, would augment the Coast Guard’s ability to prevent, reduce, and control maritime pollution; purge U.S. waters of substandard ships; and preserve high seas fisheries.66
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Assistant Secretary of State John F. Turner cited the urgency for accession at the outset of his testimony: “there are important reasons for the United States to become a party to this Convention and to do so now.”67 Not surprisingly, the State Department highlighted accession as a means of maintaining U.S. leadership in global matters; contributing to the ongoing evolution of international law-making; and supporting peaceful methods of international dispute resolution. In an effort to perhaps illustrate the dwindling opportunity to portray the United States as being at the forefront, Turner explained, “as of today, 143 parties, including most of our major allies, have joined the Convention. It is time for us to take the opportunity to demonstrate U.S. leadership on ocean issues by becoming a party to the Law of the Sea Convention.”68
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One commercial navigation voice raised during the committee hearings was that of the Chamber of Shipping of America (CSA), an association of U.S. vessel owners and op- erators of U.S. and foreign-flag ships. CSA president Joseph Cox made the case for accession based on environmental and freedom of navigation principles. Remaining outside the Convention, cautioned Cox, put U.S.-based shipping interests in jeopardy of being burdened by coastal state regulations that have been “stretching the interpretations of the law of the sea into unrecognizable forms.” Cox referred specifically to recent actions taken off the coast of western Europe. He derided the forcible removal of the Prestige in 2002 from the exclusive economic zone of Spain when it developed a hull fracture and sought entry into safe waters. " Cox also criticized a recent designation of a large expanse of ocean stretching from the “upper reaches of the English Channel to the Straits of Gilbraltar [as] a particularly sensitive sea area [(PSSA)].” " While coastal states may designate PSSAs pursuant to International Maritime Organization principles, acknowledged Cox, he contended the designation in this instance was unsubstantiated. "
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A handful of opponents continue to voice their concerns about the impact of acces- sion on U.S. sovereignty and security. Doug Bandow, a special assistant to President Reagan in the 1980s who served on the U.S. Law of the Sea delegation, continues to call for the scuttling of the Treaty.93 Bandow cautions against what he refers to as a “redistributionist bent” embodied in Part XI in the form of a portion of deep seabed royalties being distributed to mining and nonmining nations alike. He also notes that the United States ought to stand against the creation of “new oceans bureacracy.”94 At the same time he derides the advocates’ call for Treaty accession as a means of manifesting U.S. leadership. Leadership, suggests Bandow, can be illustrated just as easily by saying no as by saying yes.
Bandow’s arguments fail to carry the same weight today as they did ten years ago. The oceans bureaucracy, as he calls it, is not a prospect that might be stemmed. The Law of the Sea Tribunal is up and running. Judges have been appointed and are hearing and adjudicating cases. The Commission on the Limits of the Continental Shelf is estab- lished and employing Convention principles as required by the Convention.95 As noted above, the United States is currently engaged in mapping its own continental shelf em- ploying Convention principles.96
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The Foreign Relations Committee heard testimony by Paul Kelly, on behalf of petroleum and other industrial associations, advocating Treaty accession as a means of facilitating energy development on the continental shelf beyond 200 nautical miles. While the Convention allows for continental shelf claims to 350 miles and in some cases even beyond this, as a non–state party, the United States has no treaty-based means of making such a claim. Kelly painted a picture of an energy industry ready, willing, and able to move oil and gas extraction production into deepwater areas beyond 200 nautical miles of the United States. Citing technology that now allows for oil and gas development in water depths approaching two kilometers, Kelly pointed out that “U.S. companies are interested in setting international precedents by being the first to operate in areas beyond 200 miles and to continue demonstrating environmentally sound drilling and production technologies.” " While Kelly touted the ambitious and environmentally sound plans of industry, the environmental community had its own advocate citing the myriad reasons for Treaty accession. "
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While the Convention explicitly allows a state party to declare that certain conflicts will not be subject to the Treaty’s dispute resolution processes, those exceptions are narrow. Article 298(b) allows a state party to effectively insulate “military activities” from Convention jurisdiction. Concerned that an adverse party might seek to apply the Convention’s jurisdiction to a U.S. activity by characterizing it as nonmilitary, the Department of Defense recommended that accession to the Treaty be conditioned upon “the understanding that each Party [to the Convention] has the exclusive right to determine which of its activities are ‘military activities’ and that such determination are not subject to review.”57 This condition would protect a state party from becoming subject to a Convention-based dispute resolution tribunal if the military activity claim/exemption to such a tribunal were called into question.58
Speaking on behalf of the Joint Chiefs of Staff, Admiral Michael G. Mullen re- iterated the concerns raised by others in the defense community and agreed that the “military activities” exemption condition was of paramount importance in a U.S. move toward accession. The Admiral also agreed that accession was warranted. “Military operations since September 11 . . . have dramatically increased [U.S.] global military requirements.” In particular, Mullen noted that U.S. military operations relied upon “[t]he right of transit passage through international straits and the related regime of archipelagic sea lanes passage.” " While maintaining that those rights were available to the United States under customary international law, “as a party to the Convention, the United States would . . . be in a stronger leadership position to assert its rights.” ""