PS536, Global Environmental Law and Policy
Spring Semester 2008
Session Outline-Week 12
The Law of the Sea
We must decide "whether the oceans will be used rationally and equitably and for the benefit of mankind or
whether they will become an area of unrestrained exploitation and conflicting jurisdictional claims in which
even the most advanced states will be losers." Quoted in Barry Buzan, Seabed Politics, 1976, p.113
I. Competing Principles of Customary 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)
II. UN Conferences on the Law of the Seas
UNCLOS I (1958) -- (84 countries)
Adopted separate treaties on
-territorial seas and contiguous zones
-continental shelves
-high seas
-fishing and conservation of living resources
UNCLOS II (1960) (88 countries)
(No additional agreement)
UNCLOS III (1973-1982) (149 countries at the beginning)
Vote - 130 yes; 4 no (including US) 17 abstentions
III. Key Provisions of the Convention on the Law of the Sea (1982)
(adopted in 1982 by a vote 130-4-17, US among the 4 that voted against the treaty)
(entered into force upon 60th ratification in 1994 ; as of January 2008---155 ratifications)
-territorial waters out to 12 miles
-contiguous zone out to 24 miles
-exclusive economic zone (EEZ) out to 200 miles (map of EEZs)
complications in drawing baselines
right of transit passage through international straits (less than 24 miles wide) and archipeligos
right of innocent passage through territorial seas
disputes
Gulf of Sidra Incident map of Libya
China/Japan/Taiwan dispute over Sinkaku Islands
- jurisdiction over continental shelves (Articles 76-85 of the LOS treaty)
Disputed Russian Claims to Arctic Seabed
-"parallel system" for seabed (common heritage of mankind)
- new institutitions
International Seabed Authority
International Tribunal for the Law of the Sea
Commission on the Limits of the Continental Shelf
IV. Key Provisions of 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
-countries pay a one-time $250,000 exploration and application fee rather thatn $1
million a year
-Initial operations of The Enterprise will be through joint ventures with national/private
companies
-In the ISA, US and other industrialized countries will have a role commensurate with
economic interests
-Fund will be created to assist developing countries affected by a drop in mineral prices
-Amendments are binding only on the states that explicitly accept them
V . The United States and the Law of the Sea
Nixon and Carter Administrations (negotiated the original Law of the Sea Treaty)
Reagan Administration (insisted on renegotiating Section 11 on seabed mining, voted against the treaty in 1982)
Clinton Administration (agreed to revised Section 11 and signed the treaty)
Bush II Administration (advocates ratification of the treaty by the US)
Senate Foreign Relations Committee voted 17-4 in favor of ratifying the treaty (October 2007)
Reasons for supportung ratification:
*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.
V. The International Law of Marine Pollution
Vessel source oil pollution
Overseen by International Maritime Organization (IMO)
Series of treaties on discharge of oily substances date by to 1954
Conventions on Marine Pollution, known as MARPOL treaties (1973,1978)
Dumping of wastes and other materials
London Convention (1972) - establishes "black" and "grey" lists
Pollution of regional seas (facilitated by UNEP)
Emerging environmental problems in the oceans
"Outlook for Oceans Bleak as Sea 'Deserts' Grow," Times (London) Online, Mary 7, 2008
"Warmer Seas Will Wipe Out Plankton, Source of Ocean Life," Independent/UK, January 19, 2006
"Acid Seas Kill Off Coral Reefs," Sunday Times/UK, February 27, 2006
"Oceans' Growing Acidity Alarms Scientists," McClatchy Newspapers, December 16, 2007
"Cool Way to Improve Ship Efficiency: Go Fly a Kite," Christian Science Monitor, April 3, 2007