Something for Everyone: Why the United States should Ratify the Law of the Sea Treaty
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The resource race of the 21st century requires that nations seek resources from every corner of the globe to meet growing demand.169 The seas—long considered valuable sources of minerals, food, and now, energy—are no exception.170
Not surprisingly, nations are racing to stake a claim to these resources.171 Russia made a bold move in August of 2007 by planting a flag on the Arctic Seacap at the North Pole in an attempt to reinforce claims it has been making since 2001 that it owns the resources on the floor of the Arctic Ocean.172 The Arctic Seacap is an especially sought after area since it “may hold billions of gallons of oil and natural gas—up to 25 percent of the world’s undiscovered reserves”173 and is rapidly melting, making it navigable for the first time.174 Russia’s actions met immediate resistance from members of the international community, and have sparked debate over the resources the sea holds and who their lawful owner is.175 In fact, one journalist commented that “[t]he polar dive was part publicity stunt and part symbolic move to enhance [Russia’s] disputed claim to nearly half the Arctic seabed.”176
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The United States has also taken steps to tie its continental shelf to the Arctic Seacap in an effort to claim some of the re- sources beneath it.192 The most recent U.S. expedition may have found evidence to extend the continental shelf north of Alaska 100 miles from where it was originally thought to be.193 This could provide a challenge to Russia, Denmark and even Canada’s claims to the territory in the Arctic Seacap. However, as a non-party to the Convention, the United States has limited recourse for its claim.194 As a party, the United States may (and likely would) submit evidence of its expansive continental shelf to the Commission on the Limits of the Continental Shelf and conclusively establish the outer limits of its territorial sea in the Arctic.195 Should another state try to infringe upon these limits, the United States would have evidence supported by international law to protect itself. The states most likely to pose a threat to the United States in the Arctic—Denmark, Canada and Russia—are all parties to the Convention and therefore must adhere to the findings of the Commission on the Limits of the Continental Shelf. Absent ratification of the Convention, the United States could have taken Russia’s approach. In the unlikely event that terra nullius is found to be an acceptable method for claiming territory on the seas, this action, nevertheless, would have been futile since Russia was the first to assert a claim over the Arctic.
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The debate over whether to ratify has been characterized as one between “interests with varying degrees of political and eco- nomic power.”221 Historically, the competing interests have been domestic private industries, such as petroleum, fishing, and hard minerals, government arms, such as the military and defense department, and also scientific communities.222
Today, the Convention enjoys widespread support from virtually all groups that have an interest on the seas, including American business groups, various military defense officials and groups, environmental and public interest organizations, high level administration officials, and legal and research bodies, satisfying rationalist observers that the right influences are in favor of the Convention.223
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The sovereignty costs associated with the Convention are grossly overstated primarily because many of these costs have already been accepted by the United States. Provisions of the Convention that infringe upon sovereignty include limitations on unilaterally claiming territorial waters, limitations on economically exploitable areas on the seas, limitations on the continental shelf, revenue sharing provisions for exploitation of resources on the high seas, imposition of environmental obligations, and a mandatory dispute resolution mechanism.22 As will be discussed next, the United States has already agreed to most of these provisions through a variety of previously signed treaties.23
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Another sovereignty-related issue that the Convention addresses is conservation and pollution on the seas, a pressing concern given the widespread exploitation of the sea and its resources.43 Part XII of the Convention, entitled Protection and Preservation of the Marine Environment, imposes upon states the “obligation to protect and preserve the marine environment.”44 The Convention also includes detailed provisions that explicitly require state parties to take measures to prevent, reduce and control pollution.45 States are required to cooperate with global and regional efforts in combating pollution by setting standards, rules, and recommended practices, many of these through appropriate international organizations.46 Furthermore, the Convention requires states to take the affirmative step of implementing systems for monitoring and reporting the risks and effects of pollution to their marine environments.47
Conservation and pollution provisions are included in the 1966 Convention on Fishing and Conservation of the Living Resources of the High Seas, to which the United States is also a party.48 As mentioned previously, this convention permits high seas fishing while also requiring states take steps to conserve the seas’ living resources.49
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Ultimately, the Convention settled on an outer limit for the continental shelf of 200 miles,38 which satisfied many geographically disadvantaged states (those that do have a naturally wide shelf), but also allowed special considerations for states with naturally broad shelves by granting them a potentially deeper shelf of up to 350 miles instead of the standard 200.39 With the exception of the special considerations, Convention provisions limiting the continental shelf echoed those in the 1964 Convention on the Continental Shelf which set the limit as 200 miles and gave coastal states exclusive rights over its continental shelf.40 The United States is a party to the 1964 Convention on the Continental Shelf and thus bound by these limits.41 However, if the United States qualifies for the special considerations provided for in the Convention for states with naturally broader shelves, it has the potential to increase its continental shelf.42
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However, the United States is likely already bound by the “common heritage of mankind” doctrine under principles of customary law.61 Customary law is generally thought of as widespread systematic practice that is backed by opinio juris, or the belief that one is acting in accordance with legal obligation.62 Because these are not objectively measureable qualities, customary law is not always easy to identify. The Convention, including its provisions regarding the “common heritage of mankind” principle, is considered to represent the customary law of the seas, supported in part by its widespread ratification.63 Under general principles of international law, customary law is binding on all states, including the United States.64 The United States, thus, is bound by those provisions of the Convention that are deemed customary law, which likely include the “common heritage of mankind” principle.
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Criticism of the Rome Statute stems from concerns that the United States would compromise sovereignty by allowing others to prosecute its citizens without its consent, and potentially denying them basic constitutional rights and other domestic law protections.81 Proponents of the ICC contend that U.S. arguments against ratification of the Rome Statute fail in the face of facts.82 These arguments can be extrapolated and applied to the far less controversial dispute resolution provisions of the Convention. Among the most compelling arguments against a cooperative dispute resolution mechanism are assertions that a foreign body would have jurisdiction over U.S. citizens. Under the widely accepted principles of universal jurisdiction and territoriality, the United States already relinquishes a great deal of power over the fate of its citizens on trial.83 Concerns of bias among the deciding party are also ill-founded. With respect to the International Criminal Court, there are a number of safeguards in place to guard against such fears.84 The dispute resolution provisions in the Convention do not provide for prosecutions of U.S. citizens, but largely govern disputes over economic matters.85 While there are costs as- sociated with agreeing to a dispute resolution mechanism that is not an American court, those costs are neither new nor absolute.86 Furthermore, the underlying concern with the ICC, fear of prosecution of servicemen and women,87 is not relevant in this context. In fact, the U.S. Navy and other military members support ratifi- cation of the Convention.88 Finally, as discussed earlier, the dispute resolution provisions of the Convention contain an explicit carve-out for issues that infringe upon national sovereignty, among others.89 Under those circumstances, parties to the Convention are not required to utilize any of the mechanisms enumerated, and can instead rely upon a non-binding option, thus softening the delegation aspect associated with dispute resolution.90
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Critics of ratification argue that U.S. military flexibility under the Convention is compromised because it will need to bend to the will of Convention guidelines.162 As discussed above, however, Convention provisions enhance flexibility by allowing access to a vast array of territorial seas.163 Additionally, the U.S. military enthusiastically supports the Convention, giving it perhaps the strongest endorsement in the interest of national security.164 , “I fully support the Convention because it preserves our navigational freedoms, provides the operational maneuver space for combat and other operations for our warships and aircraft, and enhances our own maritime interests.” " Furthermore, the Vienna Convention, which governs international treaties, provides that where a state’s national security is threatened (or circumstances fundamentally change) it may suspend its obligations under a treaty. "166 In the unlikely event that the Convention inhibits the United States from ensuring national security, the U.S. would be no worse off since it would not be bound by the Convention in those instances.
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Ratification of the Convention is an urgent matter. Although a state has up to ten years after it has ratified the Convention to map and submit proposed limits of its continental shelf to the Commission on the Limits of the Continental Shelf, by that time it may be too late.196 Global climate change has caused parts of the Arctic Seacap to begin melting, making it navigable for the first time.197 While this is promising for underwater mining industries, these environmental effects have attracted a great deal of attention and the international community is cooperating to reverse them.198 Instead of engaging in fruitless political battles with its strategic adversaries, the United States should move quickly to ratify the Convention and focus its energy on extracting the resources beneath the Arctic as quickly as possible.199 Ratification “would allow full implementation of the rights afforded by the convention, [allowing member nations] to protect coastal and ocean resources.”200