Lecture Outlines - March 30 and April 3
The Law of the Sea
I. Primary Uses of Ocean Areas
Navigation and Overflight
Fishing
Sink for Pollutants
Seabed Resources
Off-shore oil and gas
Seabed minerals
II. Competing Principals of Ocean Law
Freedom of the Seas
Hugo Grotius (Mare Liberum, 1609)
Exclusive Claims
Treaty of Tordesillas (1494)
John Selden (1635)
Three-mile territorial waters
(the "cannon shot rule")
Common Heritage of Mankind
Arvid Pardo (1967)
III. UN Conferences on the Law of the Sea
UNCLOS I (1958) --- attended by 84 countries
Adoption of four treaties on
-territorial seas and continguous zones
-continental shelves
-high seas
-fishing and the conservation of living resources
UNCLOS II (1960) --- attended by 88 countries
No additional agreement
UNCLOS III (1973-1982) -- attended by 149 countries at the beginning
Adopted the Convention on the Law of the Sea to be discussed at the next class session.
IV. Key Provisions of the Convention on the Law of the Sea (1982) (ratifications) - 149 countries as of Sept. 20, 2005
-territorial waters out to 12 miles
-contiguous zone out to 24 miles
-exclusive economic zone (EEZ) out to 200 miles (list of countries) (map of maritime boundaries of the world)
Complications in drawing baselines
(Japan/China/Taiwan dispute over the Sinkaku Islands)
-right of transit passage through international straits (less than 24 miles wide)
-"parallel system" for seabed (common heritage of mankind)
seabed mining firms designate seabed plots (one to be chosen and held by the International Enterprise)
seabed mining firms share technologies at a reasonable price
limits on seabed mining to protect land-based producers
-new institutions
International Seabed Authority (including an International Enterprise)
International Tribunal for the Law of the Sea
Commission on the Limits of the Continental Shelf
Revised Section XI on the Seabed (1994)
-Four-chambered voting procedure for ISA Council---a majority of any of the
following can block a decision
(1) four major minerals consumer/importing states
(2) four of eight states with the largest investments in deep sea mining
(3) four major minerals exporting countries
(4) a group of developing countries
III . The United States and the Law of the Sea
Nixon and Carter Administrations (negotiated the original treaty)
Reagan administration (reconsidered, then rejected the treaty)
Clinton Administration (signed and referred to the Senate for ratification)
Bush Administration (recommends ratification of the treaty)
Reasons:
*The United States would be in a stronger position invoking a treaty's provisions to which it is party, for instance in a bilateral disagreement where the other country does not understand or accept those provisions.
* While we have been able to rely on diplomatic and operational challenges to excessive maritime claims, it is desirable to establish additional methods of resolving conflict.
* The Convention is being implemented in various forums, both those established by the Convention and certain others (such as the International Maritime Organization). While the Convention's institutions were not particularly active during the past decade since the Convention entered into force, they are now entering an operational phase and are elaborating and interpreting various provisions. The United States would be in a stronger position to defend its military interests and other interests in these forums if it were a party to the Convention.
* Becoming a party to the Convention would permit the United States to nominate members for both the Law of the Sea Tribunal and the Continental Shelf Commission. Having U.S. members on those bodies would help ensure that the Convention is being interpreted and applied in a manner consistent with U.S. interests.
* As a party, the United States could get the legal certainty with respect to its continental shelf claim beyond 200 miles that will facilitate activities in those areas by the U.S. oil and gas industry.
* Becoming a party to the Convention would strengthen our ability to deflect potential proposals that would be inconsistent with U.S. interests, including freedom of navigation. It is worth noting that the Convention will be open to amendments beginning next November.
Beyond those affirmative reasons for joining the Convention, there are downside risks of not acceding to the Convention. U.S. mobility and access have been preserved and enjoyed over the past 20 years largely due to the Convention's stable, widely accepted legal framework. It would be risky to assume that it is possible to preserve indefinitely the stable situation that the United States currently enjoys. Customary international law may be changed by the practice of States over time and therefore does not offer the future stability that comes with being a party to the Convention.