The Law of the Sea: Costs of U.S. Accession to UNCLOS
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One area where the U.S. can expect to experience significant costs—with no appreciable benefit—is in its compliance with Article 82 of the Convention: “Payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles.”
If the U.S. accedes to UNCLOS, it will be required pursuant to Article 82 to transfer royalties generated on the U.S. continental shelf beyond 200 nautical miles (nm)—an area known as the “extended continental shelf” (ECS)—to the International Seabed Authority. These royalties will likely total tens or even hundreds of billions of dollars over time. Instead of benefiting the American people, the royalties will be distributed by the Authority to developing and landlocked nations, including some that are corrupt, undemocratic, or even state sponsors of terrorism such as Cuba and Sudan.
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Member states begin to pay these “international royalties” during the sixth year of production at the drilling site. Starting with the sixth year of production, UNCLOS members must pay 1 percent of the value of the total production at that site to the Authority. Thereafter, the royalty rate increases in increments of 1 percentage point per year until the twelfth year of production, when it reaches 7 percent. The rate remains at 7 percent until production ceases at the site.
As such, if the United States accedes to UNCLOS it would be obligated to transfer to the Authority a considerable portion of the royalties generated on the U.S. ECS that would otherwise be deposited in the U.S. Treasury for the benefit of the American people. For example, the royalty rate of the majority of blocks currently under an active lease on the U.S. ECS is 12.5 percent. Beginning in the twelfth year of production on such an ECS block the U.S. would be required to transfer 7 percent—more than half—of its royalty revenue to the Authority and do so each year until production ends on that lease. The remaining 5.5 percent of the royalty would be retained by the Treasury.
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However, pursuant to long-standing law and policy the United States already enjoys and exercises full jurisdiction and control over its ECS. In addition to the 1945 Truman Proclamation, in which President Harry S. Truman declared that the United States “regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control,” in 1953 Congress passed the Outer Continental Shelf Lands Act, which defined the outer continental shelf as “all submerged lands lying seaward and outside of the area of lands beneath navigable waters...and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.”
After the adoption of UNCLOS in 1982, the U.S. affirmed its jurisdiction over its entire continental shelf, including the ECS. Specifically, in November 1987 a U.S. government interagency group issued a policy statement declaring its intent to delimit the U.S. ECS in conformity with Article 76 of UNCLOS (which provides a formula for measuring the extent of a coastal state’s ECS). That statement read, in pertinent part, “The United States has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76, paragraphs (1), (2) and (3).”
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Even though approximately 20 percent of the only area of U.S. ECS that has been made available for lease by BOEM is currently under an active lease, the U.S. oil and gas industry has supported and will likely continue to support U.S. accession to UNCLOS in order to achieve even greater “certainty.” That is their prerogative, of course, and achieving a maximum amount of certainty is a legitimate and desirable goal for a capital-intensive commercial enterprise. However, the successful delimitation of the ECS in the western gap and the U.S. government’s continuing lease sales of ECS blocks would appear to have provided the certainty necessary for several major U.S. and foreign oil exploration companies to secure leases for the development of the U.S. ECS.
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The U.S. legal position set forth in 1983 on deep seabed mining remains the same today. According to the Restatement of the Law, Third, of the Foreign Relations Law of the United States, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining. As related by the Restatement, “like the fish of the high seas the minerals of the deep sea-bed are open to anyone to take.”
The U.S. position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980, which Congress enacted two years before the adoption of UNCLOS to provide a framework for U.S. corporations to conduct deep seabed mining until such time as the United States joins an acceptable convention on the law of the sea. The DSHMRA states the U.S. position on the legality of deep seabed mining as follows:
[I]t is the legal opinion of the United States that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reasonable regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law.
In sum, the long-held position of the United States, both domestically and internationally, is that U.S. citizens and corporations have the right to explore and exploit the deep seabed regardless of whether or not the United States is a party to UNCLOS.
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Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or through the atmosphere. Regardless of the merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
Unlike a resolution passed by the U.N. General Assembly or a recommendation made by a human rights treaty committee, judgments issued by UNCLOS tribunals are legally enforceable upon members of the convention. Article 296 of the convention, titled “Finality and binding force of decisions,” states, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”
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Acceding to UNCLOS would commit the U.S. to controlling its pollutants, including alleged “harmful substances” such as carbon emissions and other greenhouse gases (GHG), in such a way that they do not negatively impact the marine environment. The U.S. would also be obligated to adopt laws and regulations to prevent the pollution of the marine environment from the atmosphere and could be liable under international law for failing to enact legislation necessary to prevent atmospheric pollution. Moreover, such domestic laws and regulations “shall” take into account “internationally agreed rules, standards and recommended practices and procedures.” The “internationally agreed rules, standards and recommended practices” that could be invoked by UNCLOS litigants may include instruments such as the U.N. Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol.
A consensus has emerged within the international environmental and legal community that the United States is the best target for an international climate change lawsuit. One law professor has characterized the United States as a likely target because it is a developed nation with high per capita and total GHG emissions, adding that the “higher the overall historic and present contribution to global emissions by the defending party, arguably the better the chance of a successful outcome.”
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In 1993, the Department of Defense issued an Ocean Policy Review Paper on “the currency and adequacy of U.S. oceans policy, from the strategic standpoint, to support the national defense strategy.” The paper concluded that U.S. national security interests in the oceans have been protected even though the U.S. is not party to UNCLOS:
U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 Law of the Sea Convention, and as supplemented by diplomatic protests and assertion of rights under the Freedom of Navigation Program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.
Almost 20 years later, there is no evidence that suggests a change in circumstances such that U.S. accession to UNCLOS has become essential to the successful execution of the U.S. Navy’s global mission.
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Most of the UNCLOS navigational provisions have long been recognized as customary international law. The convention’s articles on navigation on the high seas (Articles 86–115, generally) and passage through territorial waters (Articles 2–32, generally) were copied almost verbatim from the Convention on the High Seas and the Convention on the Territorial Sea and the Contiguous Zone, both of which were adopted in 1958. The United States is party to both conventions, which are considered to be codifications of widely accepted customary international law.
Similar to other multilateral conventions, such as the Vienna Convention on Diplomatic Relations, UNCLOS is said to “have codified settled customary international law or to have ‘crystallized’ emerging customary international law.” UNCLOS codified customary law relating to navigation on the high seas and through territorial waters and “crystallized” emerging customary law, such as the concepts of “transit passage” through international straits and “archipelagic sea-lanes passage.” As summarized by Defense Department official John McNeill in 1994, UNCLOS “contains a comprehensive codification of long-recognized tenets of customary international law which reflect a fair balance of traditional ocean uses.” In short, the convention’s navigational provisions have attained such a status that all nations—UNCLOS members and nonmembers alike—are expected to adhere to them.
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One way to determine the extent to which UNCLOS’s navigational provisions have achieved the status of binding international law is to study the behavior of nations. Behavior in conformity with the convention—known as “state practice”—is additional evidence that its navigational provisions reflect international law. Indications that a state is acting in conformity with international law may be found in states’ “legislation, the decisions of their courts, and the statements of their official government and diplomatic representatives.” A nation’s inaction regarding a particular navigational provision may also be viewed as state practice because it can be deemed to be acquiescence. The consistent practice of states—maritime states, coastal states, UNCLOS members, and nonmembers—indicates that the UNCLOS navigational provisions are almost universally accepted law. The Restatement of the Law, Third, of the Foreign Relations Law of the United States notes:
[B]y express or tacit agreement accompanied by consistent practice, the United States, and states generally, have accepted the substantive provisions of the Convention, other than those addressing deep sea-bed mining, as statements of customary law binding upon them apart from the Convention.