Frozen in Time: A Fresh Look at the Law of the Sea and Why the United States Continues to Fight against It
The absence of the United States from the UNCLOS regime is beginning to significantly hinder US ability to explore and exploit the rich resources lying beneath its extensive ECS-this much is incontrovertible.10 Today, no Arctic coastal State, relying solely on the outdated Discovery Doctrine, may simply declare that its seabed extends to the North Pole and then expect to possess exclusive jurisdiction over that area.11 Instead, there lies within UNCLOS a specific procedure whereby a State may obtain international legal title over its ECS; this international title affords a State the exclusive right to exploit the natural resources lying deep below the seabed and subsoil, beyond that of a State's 200 nautical mile Exclusive Economic Zone.12
In responding to ECS submissions, the most diplomatic response would seemingly be for the US to operate within the UNCLOS framework–filing its own claim with the ISA Commission on the Limits of the Continental Shelf (CLCS)—since virtually every legal question involving the Law of the Sea today is governed by the UNCLOS Convention.13 The salient benefit for any State to make an ECS submission to the ISA is to ultimately obtain universal legal recognition of its exclusive sovereignty over the full extent of its ECS beyond that of 200 nautical miles. However, for years the United States has been left out of the ECS procedure because it remains outside the UNCLOS framework and, therefore, may not participate in the ongoing work of UNCLOS governing bodies. American absence from UNCLOS has been championed by an outspoken minority that prefers to rely on naval supremacy, outdated declarations, and a preference for gunboat diplomacy so as to assure that US national maritime interests are maintained.14
UNCLOS opponents argue, almost sophomorically, that the United States already enjoys and exercises full jurisdiction and control over its ECS and thus does not need the approval of an international bureaucratic body such as the CLCS.73 The authority for this position derives primarily from a reliance on customary international law, US domestic law, and bilateral maritime delimitation treaties the United States has entered into.74 Admittedly, this argument is doctrinally difficult to overcome if one simply chooses to rely on a strong US Navy to project power and assert US interests. However, in spite of a misguided reliance on “hard power”,75 a misunderstanding of customary international law,” and the misapplication of article 76; the practical considerations put forth by US industry make resource exploitation in the US ECS-outside of the UNCLOS framework—a nearly unattainable objective.
Concededly, the opposing argument is correct, albeit from a functional perspective, that the US does not need to achieve the universal international recognition offered through the CLCS in order to commercially exploit the resources that lie in its ECS. For example, since the US-Mexico Treaty demarcated the areas of the ECS between all the other States with a vested interest, ostensibly, a CLCS submission would be unnecessary to achieve the level of “certainty” required for the multi-billion dollar investment needed to begin resource extraction in the Gulf of Mexico. However, such a jingoistic perspective is only true insofar as the industries involved are willing to risk commercial exploitation in the US ECS without the international legal title offered, since they could just get behind a strong US Navy to back up their claims. Currently though, no company is willing to take such a massive multi-billion dollar risk.86 The US-Mexico Treaty has only enabled the granting of oil and gas leases in the US ECS; no drilling has commenced in the US ECS located in the Gulf of Mexico, an area known as the “Western Gap."87 Bilateral treaties alone are insufficient for such a complex endeavor.88
UNCLOS opponents habitually point to the 2000 US-Mexico maritime delimitation treaty, portraying it as an irrefutable example of why the United States does not need UNCLOS in order to exploit the resources within its ECS; therefore, the “legal certainty” offered by a CLCS ECS submission is not as vital as UNCLOS proponents would suggest.77 But this argument is flawed in that it relies on a paradigmatic conflation between two separate and distinct UNCLOS procedures: ECS delineation by a coastal State and maritime boundary delimitation between two or more States.78 These two procedures are not the same thing, nor do they entail the same rights and privileges.
Article 76 was drafted with the intent of creating a universal mechanism in which the outer limits of a State's continental shelf would eventually be permanently fixed so as to exclude any future expansion of national jurisdiction into the international seabed area.79 Article 76(10) expressly provides that the provisions of article 76 are “without prejudice” to the question of continental shelf delimitation between States with opposite or adjacent coasts.80 Specifically, article 76(10) guarantees that a submission of an ECS claim by one State will not affect the rights of another State where the delimitation of their shared continental shelf remains at issue.81 Standing alone, this may not be dispositive of much, but consider for a moment that out of the twentynine areas in which continental shelves exist beyond 200 nautical miles, only seven of those areas involve jurisdictional claims exercised by a single State.82 In other words, the drafters of article 76 were aware of the potential for conflict between States with competing maritime claims and, thus, included the “without prejudice” language so as to encourage greater treaty accession.83 Consequently, article 76(8) and (9)—concerning the final and binding nature of a delineated ECS- are thus rendered without legal effect if relied upon in a delimitation dispute where an overlapping ECS becomes a point of contention between two coastal States.84 In fact, the entire ECS framework outlined in article 76 becomes essentially moot within the context of an ongoing delimitation dispute between two coastal States.85 Thus, under international law, ECS delineation and ECS delimitation are two entirely separate processes where the disposition of one has no legal effect on the results of the other. It is axiomatic, therefore, that if the legal processes differ then so do the legal statuses—each carrying with them different rights and privileges—granted through the conclusion of each procedure. Accordingly, it is in the interest of UNCLOS opponents to promote the public misperception that delimitation and delineation are the same constructs as far as UNCLOS is concerned, because only then can they further promulgate the false notion that nothing is to be gained by joining the treaty.
With nearly one-third of the world's hydrocarbons produced offshore, it is astounding that UNCLOS opponents continue to sit idly by and ignore the nation's need to access the US ECS. Opponents profess that the continued projection of force, a strong Navy, and a reliance on customary international law, however misguided, are sufficient for protecting and promoting US maritime interests.199 Even accepting for a moment the supposition that between the use of force and the application of rule-based diplomacy, the use of force will prevail; this presumption underlies a striking perplexity: does the United States want to continue operating as a nation dependent on military power in order to facilitate resolution of every maritime conflict? Is the cost of a continued preference for force over law worth the consequences of an actual military conflict arising? It is undeniable that the failure to join UNCLOS puts the United States at greater risk of a military confrontation arising with “. . . others who are interpreting customary international law to their benefit.”200
Customary international law cannot unequivocally guarantee that the same benefits the United States currently enjoys under UNCLOS can be secured for the indefinite future.194 By its very nature, customary international law is not always universally accepted and also may change over time based on State practice.194 Therefore, it is illogical to operate under the presumption that customary international law will always mirror UNCLOS. The only way to permanently retain these rights, such that they are always at the disposal of the US, is to solidify them through treaty law.195 It is almost amusing that UNCLOS opponents, of. ten the most vocal critics of the uncertainty of customary international law, are simultaneously impelling the US military and US businesses to exclusively rely on it to protect their essential interests.196
Continuing to rely on an idealistic conception of customary international law for asserting maritime navigational rights and for exploiting deep sea-bed resources, as opposed to deriving them from UNCLOS, undermines American national security objectives and deprives the US Navy of an essential tool needed for resolving disputes peacefully. Such ethnocentric derogation towards UNCLOS will inevitably expose the Navy to increased risks of military conflict.197
UNCLOS cannot be understood as creating substantive causes of action or other individual legal rights that can be invoked in US courts.160 Internationally, there is no remedy open to individuals or groups, only to State parties to the Convention.161 Furthermore, even if a State were to successfully challenge US climate policies, by alleging that such policies were resulting in the pollution of the marine environment, the UNCLOS dispute resolution mechanisms outlined in article 297 would still be unavailable.162 Specifically, article 297(1)(c) sets out the exclusive basis upon which a State party may bring a dispute before an international tribunal for an act of alleged pollution to the marine environment.163 The aggrieved State, in stating its claim, must invoke a “specified” international rule applicable to the US. Because no provision of UNCLOS applies any additional substantive rules concerning climate change, it would, therefore, not be possible for a UNCLOS State party to rely on the dispute resolution procedures of article 297 for creating an adequate forum to challenge US climate change policies.164
UNCLOS is an oceans treaty, not a climate treaty.136 To claim that UNCLOS imposes a requirement on the United States to implement the Kyoto Protocol or any other international climate change laws is simply an untenable legal position. The substantive basis for a hypothetical international suit rests on an alleged violation of the duties enumerated in Part XII of UNCLOS, which concern the protection and preservation of the marine environment.137 Hypothetically, to have a viable cause of action against the United States for climate change issues under UNCLOS, a State would have to successfully argue the following: (1) that climate change exists within the meaning of “pollution of the marine environment” as defined in Article 1(4) of the Convention;138 (2) Part XII of UNCLOS–Protection and Preservation of the Marine Environment—applies to the issue of climate change; and (3) there is a causal link between a State's Greenhouse Gas (GHG) emissions and such pollution.139 Even after assuming all of the preceding claims possess the requisite showing, Part XII would still not require a party to adopt additional climate laws.
The US government receives one of the lowest government “takes” (total revenue, as a percentage of the value of the oil and natural gas produced) in the world.98 Thus, it should come as no surprise that the petroleum industry has deemed the miniscule ISA royalties as entirely reasonable. The petroleum industry has agreed to pay all royalties associated with deep seabed extractions—beyond 200 nautical miles—to the US Treasury, just as they would when drilling within the US EEZ.99 For the first five years of production, no royalties are required to be paid to the ISA; only once the sixth year of drilling commences would the US be required to remit a small percentage, 1%, of their drilling royalties, to the ISA.100 In other words, the money the ISA receives, beginning during the sixth year of drilling, is essentially subtracted from the revenue the US would otherwise receive from the royalty payments made by the petroleum industry. To depict the ISA as an international taxing authority, infringing on US sovereignty, that will drain US tax revenue is a hyperbolic mischaracterization that distorts not only the impact of article 82, but also skews the entirety of the UNCLOS debate itself.
Every financial concern raised against UNCLOS has been expressly rebuked by US industry; in fact, nearly every major US business possessing maritime interests has publicly and unequivocally supported US accession to the Convention.101 For example, the American Petroleum Institute (API) has repeatedly asserted that its members will not risk investing the billions of dollars required to drill in the US ECS without the legal certainty UNCLOS offers.102 Consequently, as long as the US remains outside the UNCLOS framework, it cannot receive any of the royalties it would otherwise be entitled to from the petroleum industry were ECS drilling to commence. As one UNCLOS proponent expressed, “it’s better to have 93% of something, than 100% of nothing.”103 Therefore, as it stands today, it would be more accurate to characterize UNCLOS, as it relates to the costs to comply, as a squandered source of revenue, as opposed to a financial liability.