The United Nations Convention on the Law of the Sea & (and) U.S. Ocean Environmental Practice: Are We Complying with International Law
[ Page 912 ]
Rather than implement a comprehensive national plan designed to comply with the new global "legal order" establishing marine protection, the United States maintains an ad hoc approach to ocean environmental regulation. The United States reacts to specific ecological problems when drafting domestic legislation and when negotiating international agreements. Far from being comprehensive, the U.S. scheme of ocean environmental protection is "scattered," problem-specific, and often contradictory.77
The United States' desire to assert national sovereignty over the ocean space is the basis for legislation regulating the use and protection of ocean resources.78 Its refusal to cooperate with neighboring countries in negotiating ocean environmental policies and access to ocean resources stems from an unwillingness to compromise that sovereignty.79
[ Page 913-914 ]
Moreover, individual state sovereignty over coastal territory is a basic foundation of the U.S. political scheme. Additionally, "federal versus state control over the newly acquired territorial sea is one of the major controversies raised by the most recent legislative proposals."' If individual U.S. states maintain control over the territorial sea off their coasts, they will be responsible both financially and legally for pollution control and cleanup in that area. Such piecemeal regulation could result in "varying degrees of marine protection throughout the United States."81
The internal conflict over exercising state and national sovereignty in the ocean territory has taken precedence over international interests. As a result, U.S. policy is adverse to the UNCLOS mandate to harmonize resource use and conservation activities with other states to achieve uniformity in global environmental legislation.82 Moreover, when problems arise, the United States at times violates the UNCLOS spirit, and possibly its directives, by failing to cooperate with other states in addressing the problems. Rather, the United States elects to act unilaterally, thereby violating rights delegated to other states under UNCLOS.83
The U.S. government's policy of pursuing a "quick fix" to environmental issues by enacting ad hoc domestic legislation and failing to negotiate comprehensive international agreements conflicts with UNCLOS' goal of global cooperation. Moreover, the U.S. unilateral actions often encourage other states to retaliate by initiating their own trade restrictions.84 In the long run, the U.S. policy undermines UNCLOS and the goal of global coop- eration in marine resource protection.
[ Page 920 ]
A major source of tension between U.S. regulations and UNCLOS directives concerns the United States' imposition of unilateral trade sanctions against other states in order to enforce U.S. standards of operation. Such unilateral actions violate international law by directly interfering with a sovereign's exclusive right to regulate activities in its own territory.127 A state may trigger U.S. trade sanctions if it fails to comply with U.S. domestic conservation standards, such as the MMPA128 or the 1989 Sea Turtle Conservation Amendments to the ESA.129 As discussed above, the imposition of trade sanctions under these laws depends upon whether a foreign state implements conservation or operating standards comparable to those adopted in the United States for protecting marine mammals and sea turtles."130
The international community is hostile toward these laws because trade-sanction decisions are based solely on U.S. domestic environmental standards and contain no exceptions for internationally agreed upon standards.131 Additionally, "these statutes have been deemed protectionist by many nations because they serve to protect U.S. fishermen from foreign competition by equalizing costs associated with environmental protection."132
[ Page 922 ]
UNCLOS is now international law. As such, parties are bound by the obligations and duties imposed by the "constitution for the oceans." Arguably, even states that have not formally ratified the treaty are bound due to its status as customary international law.
UNCLOS requires states to cooperate globally to "protect and preserve the marine environment." As a compromise package, UNCLOS carefully balances the need for states to maintain sovereignty over their territorial waters and EEZs with the global need to manage effectively the ocean ecosystem. Because such careful balancing is necessary to preserve global harmony and provide effective resource management, the participants in UNCLOS agreed to rigid dispute settlement procedures that are both compulsory and binding.
UNCLOS resulted from a long, arduous negotiation, in which the parties present compromised on numerous policies to achieve a global balance. The United States played a major role in the negotiations and greatly influenced the resulting policies.
[ Page 923 ]
Since President Reagan's announcement that the United States would adhere to the terms of UNCLOS, the United States has made little change in its policy of ad hoc regulation of marine issues. As a result of its ad hoc decision-making and "knee-jerk" responses to immediately perceived problems in the ocean environment, the United States has failed to create a comprehen- sive national plan. The U.S. ocean legislation fails to balance the needs of the ocean ecosystem with the needs of U.S. commercial fisheries and, therefore, conflicts with the express provisions of UNCLOS.
Moreover, the United States explicitly violates UNCLOS by unilaterally imposing its policies on those states it can control through strong-arm trade sanctions rather than recognizing and respecting each state's sovereign right to manage its own ocean space. Rather than cooperating in compromise agreements designed to achieve a plan benefitting each country involved, the United States' first response to a state with practices different from its own is to impose trade sanctions.
To comply with international law and to achieve the vision aspired to by UNCLOS, therefore, the United States must now revisit its approach to ocean policy-making and modify it to achieve harmony and cohesion. The United States must combine the myriad of scattered, conflicting legislation into one package de- signed to manage ocean resources while considering the interde- pendence of species and habitats. The United States also must cooperate globally, rather than act unilaterally, to achieve and not impede the goal of world environmental protection.