U.S. Accession to the Law of the Sea Convention

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  • 5. "Republican Sen. James Inhofe of Oklahoma, one of at least a dozen conservatives who oppose the treaty, calls it 'a disaster' and vows to work to block it from a fizll Senate vote." Neil King Jr., U.S. Resistance to Sea Treaty Thaws, Wall Street Journal, Aug. 22, 2007, at A6, col. 1. 6. In his May 2007 Statement, n. 3 above, President Bush said the Convention would protect "the maritime mobility of our armed forces worldwide." The Navy's Judge Advocate General Rear Admiral Bruce MacDonald has said: "This for us is global mobility. That's what it's all about." King, n. 5 above. Professors Caron and Scheiber have explained that "the Exclusive Economic Zone is a complex zone and is, by its nature, unstable, easily tending to gravitate to more and more ownership claims by the nearby coastal state," and have noted that the institutions created by the Law of the Sea Convention may be crucial to "prevent a collapse of zones from recurring." Caron and Scheiber, n. 4 above. See also V. Clark and T.R. Pickering, "A Treaty that Lifts All Boats," New York Times, July 14, 2007, at A25, col. 1. ("Our nation will be in a much stronger position to advance its military and economic interests if we ratify the treaty.") 7. See, e.g., R. McLaughlin, The Western Gap and Transboundary Resources in the Ultra-Deepwaters of the Gulf of Mexico (publication forthcoming in Ocean Development and International Lao). 8. President Bush noted that the Convention would "secure U.S. sovereign rights" over extensive marine areas and their resources. Bush May 2007 Statement, n. 3 above. 9. President Bush explained that accession would "promote U.S. interest in the environmental health of the oceans." Id. 10. President Bush noted that accession would give the United States "a seat at the table when the rights that are vital to our interests are debated and interpreted." Id. See also Clark and Pickering, n. 6 above. ("The agreement is being interpreted, applied and developed right now and we need to be part of it to protect our vital interests in the area of security and beyond.")

  • 11. Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 7 August 2007, (last visited Sept. 22, 2007). 12. Presidential Proclamation No. 2667, 10 Fed. Reg. 12303 (1945), 4 Digest of InternationalLaw756-58 (M. Whiteman ed. 1965); see 2 Foreign Relation of the United States, 1945, at 1502. 13. Convention on the Territorial Sea and Contiguous Zone, 516 U.N.T.S. 205, 15 U.S.T. 1606; Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2312; Convention on Fishing and Conservation of Living Resources of the High Seas, 17 U.S.T. 138, 599 U.N.T.S. 285; Convention on the Continental Shelf, 499 U.N.T.S. 311, 15 U.S.T. 471.

  • 14. In 1967, Ambassador Arvid Pardo of Malta told the U.N. General Assembly that vast riches lay scattered across the floor of the deep seabed in the form of exploitable, softball-sized rocks and offered the "Pardo proposal" urging that they be viewed as the "common heritage" of humankind. (This idea was also developed in J. Mero, The Mineral Resources of the Sea (1965).) Within three years of Ambassador Pardo's speech, an international consensus developed that these nodules should be viewed as a "common heritage" resource, that national claims of exclusive rights to seabed resources must be prohibited, that exploitation should take place pursuant to an international legal regime, and that developing nations should share genuine benefits from seabed exploitation. The key international document recognizing this consensus was the U.N. General Assembly's 1970 Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction. U.N. General Assembly's 1970 Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, G.A. Res. 2749 (15V), 25 U.N. GAOR, Supp. No. 28, at 24, U.N. Doc. A/8028 (1970). 15. G. Galdorisi, "The United States and the Law of the Sea: Decade of Decision," in The United States and the 1982 Law of the Sea Convention: The Cases Pro and Con 7, 16-17 (G. Galdorisi, D. Bandow and M.C. Jannan eds., Law of the Sea Institute Occasional Paper No. 38, 1994).

  • 16. See, e.g., J.M. Van Dyke, "The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone," Marine Policy 29 (2005): 107-21. 17. Law of the Sea Convention, n. 1 above, art. 246.

  • 18. See generally Freedom for the Seas for the 2]st Centacry 72 a.M. Van Dyke, D. Zaelke and G. Hewison eds., Washington, D.C.: Island Press, 1993).

  • 19. Statement of President Ronald Reagan, January 29, 1982, reprinted in U.S. Department of State Bureau of Public Affairs, Current Policy No. 371. 20. Statement of President Ronald Reagan, July 9, 1982, reprinted in U.S. State Department Bureau of Public Affairs Current Policy No. 416. Articles that explain the dynamics of how the decision not to sign was reached include: Leigh Ratiner, The Laro of the Sea: A Crossroads for American Foreign Policy, Foreign Affairs 60, 5 ( 1982): 1006; Nossiter, "Underwater Treaty: The Fascinating Story of How the Law of the Sea was Sunk," Barron's 10 (July 26, 1982). 21. Presidential Proclamation 5030 of March 10, 1983. "The Exclusive Economic Zone of the United States of America." 48 Fed. Reg. 10,605 (Mar. 14, 1983). See J.M. Van Dyke, "Going It Alone Is Bad for America," Washington Post, May 12, 1985, Outlook section, at 1, col. 1. 22. Presidential Proclamation No. 5928 of December 27, 1988. "The Territorial Sea of the United States of America." 54 Fed. Reg. 777 (Jan. 9, 1989).

  • 23. Law of the Sea Convention, n. 1 above, Part XI. 24. See generally J. Van Dyke and C. Yuen, " 'Common Heritage' v. 'Freedom of the High Seas': Which Governs the Seabed?," San Diego Law Preview 19 (1982): 493-551 � also published in The Law of the Sea and Ocean Development Issues in the Pacific Basin, 206-76 (Honolulu: Law of the Sea Institute, E. Miles and S. Allen eds., 1983). 25. Part XI Agreement, n. 2 above. 26. Section 1 of the Annex to the Part XI Agreement says, for instance, that "all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective" and that the creation of such organs "shall be based on an evolutionary approach." Section 2(3) states that "[t]he obligation of States Parties to fund one mine site of the Enterprise ... shall not apply." Other provisions in the Annex state that the provisions of Articles 151 ( 1-7) and (9), 155(1) and (3-4), 161(1), 161(8)(b) and (c), 162(2)(j) and (q), 165(2)(n), and Annex 111, Articles 5, 6(5), and 7 of the Law of the Sea Convention "shall not apply." "

  • the Law of the Sea Convention, although its creation was not in compliance with the Convention's provisions on amendments, reservations, or modify- ing agreements. Perhaps the most significant change for the United States concerned decision-making within the International Seabed Authority. Article 161 of the Convention established a sophisticated decision-making procedure calling for different levels of enhanced majorities depending on the type of decision being made. Section 3 of the Part XI Agreement restructured this procedure by establishing a system of "chambered voting" within the Seabed Authority's governing Council, to protect minority interests while at the same time allowing majority rule under a one-nation one-vote system. This approach was originally advocated by the Nixon Administration in 1970 when it outlined a system of decision-making for the body that eventually became the International Seabed Authority. As modified in 1994, the Council, which is the main decision-making body of the International Seabed Authority, now consists of 35 members and has four distinct "chambers" of nations representing different interest groups. One chamber consists of four of the nations with the world's largest economies, with a specific seat allocated to the United States (if it ratifies the Convention) and one reserved for an Eastern European nation. The second chamber consists of four of the nations that have made the largest investments in deep seabed mining. The third chamber includes four of the nations that are net exporters of the minerals to be mined from the sea floor, including at least two developing countries that rely heavily on the income from these minerals. And the fourth chamber consists of all the other developing nations that are elected to the Council. All questions of substance must be adopted by a two-thirds majority of the entire Council and cannot be opposed by a majority in any of the chambers. In other words, each chamber can veto any decision and block action. Certain key decisions can be made only if there is "consensus" of the entire Council. Another change affecting decision-making was the establishment of a Finance Committee, made up of representatives of 15 countries, which has the power to control the budget of the International Seabed Authority. The United States, if it ratifies the Convention, would have a guaranteed seat on the Finance Committee, as one of the five largest financial contributors to the Authority which are automatically elected to the Committee. Because decisions of the Committee on substance must be made by consensus, the United States (along with the other members of the Committee) will effectively have a veto on the budget of the International Seabed Authority. This change was important in the Clinton Administration's decision to support ratification of the 1982 Convention. Other changes of importance concerned the articles on transfer of technology, the Review Conference, production policies, and the financial terms of contracts. With regard to the mandatory provisions on these topics

  • 27.Id. 28. Part XI Agreement, n. 2 above, Annex, Section l(6)(ii). 29. Ken Adelman, an active member of the Reagan Administration's efforts to persuade allies that they should not support the Convention in 1982, now supports ratification, explaining that the changes made through the Part XI Agreement have responded properly to the concerns they had raised in the early 1980s: Scraped away are virtually all the barnacles we denounced during our 1982 "scuttle diplomacy." There's no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation. Indeed, the U.S. gets a permanent seat on the decision-making body, and thus has veto power. There's no bar to future qualified mining firms, and no gigantic LOS institution for wannabe bureaucrats. The seabed mining regime reflects free-market principles. It offers compa- nies the legal certainty needed for large-scale, long-term investments; protects existing claims of U.S. firms; and reinforces international law on territorial waterways. It locks in U.S. offshore economic rights as it expands our rights over resources in a 200-mile exclusive economic zone, 200-mile continental shelf, and in a shelf beyond 200 miles off Alaska. K. Adelman, "Scuttle Diplomacy," Wall Street Journal, June 2-3, 2007, at All, col. 1. 30. Letter by President William J. Clinton, Transmittal Letter to the U.S. Senate, Washington, D.C., Oct. 7, 1994, in United Nations Convention on the Law of the Sea, with Annexes, and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with Annex, Message from the President of the United States, Senate Treaty Doc. 103-39, 103d Cong., 2d Sess. at IX (1994) [hereafter cited as 1994 Clinton Message]. 31. King, n. 5 above.

  • 32. I�l. (quoting University of Virginia Professor John Norton Moore as saying that "[o]ur sitting on the sidelines all these years has already cost us."). 33. Vienna Convention on the Law of Treaties, Art. 18, 1155 U.N.T.S. 331 (1969). 34. See, e.g., RM.S. Titanic, Inc. v. Haver, 171 F.3d 943, 965 n.3 (4th Cir. 1999). 35. See, e.g., U.S. v. Royal Caribbean Cruises, 24 F. Supp. 2d 155, 159 (D.P.R. 1997) ("Although the ... convention is currently pending ratification before the Senate, it nevertheless carries the weight of law from the date of its submission by the President to the Senate," because such submission "expresses to the interna- tional community the United States' ultimate intention to be bound by the pact."); United States v. Alaska, 503 U.S. 569, 588 n.10 (1992) ("The United States has not ratified [the Law of the Sea Convention], but has recognized that its baseline provisions reflect customary international law."); Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 305 n. 14 (1st Cir. 1999) (noting that because it had signed the Convention, even though it had not yet ratified it, the United States "is obliged to refrain from acts that would defeat the object and purpose of the agreement"); Mansel v. Baker Hughes, Inc., 203 F. Supp. 2d 745, 746 n. 1 (S.D. Texas 2002) (same); Sarei z�. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1161, 1162 (C.D. Cal. 2002) (explaining that because the Convention has been ratified by so many nations and signed by the United States, it "thus appears to represent the law of nations," and because it "reflects customary international law, plaintiffs may base an ATCA [Alien Tort Claims Act, 28 U.S.C. sec. 1350] claim upon it"). 36. The Convention's fishery provisions have been fleshed out in the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Consemation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.164/37, 34 International Legal Materials 1542 (1995); the United States is among the 67 countries that have ratified this Agreement (as of Aug. 2007). Chronological List, n. 11 above.

  • 37. 1994 Clinton Message, n. 30 above, at IX. 38. The M/V Saiga Case (Saint Vincent and the Grenadines v. Geeinea) (ITLOS 1 July 1999), (22 Mar. 2000). 39. See A. Yankov, "Irregularities in Fishing Activities and the Role of the International Tribunal for the Law of the Sea," in N. Ando, E. McWhinney, and R. Wolfnun (eds.), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer Law International, 2002). 40. The MOX Plant Case (Ireland v. LLK.), (ITLOS 2001), 41 I.L.M. 405 (2002). See J.M. Van Dyke, "Giving Teeth to the Environmental Obligations in the LOS

  • Convention," in Oceans Management in the 21st Century: Institutional Frameworks and Responses 167-86 (A.G. Oude Elferink and D.R. Rothwell eds., 2004). 41. King, n. 5 above. 42. Id. ("Without being a party to the treaty, the U.S. has no clear way-short of threatening force-to assert its claims.").

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