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Authors

John A. Duff

Document Type

Article

Abstract

As of August 26, 2005, there were 149 parties to the United Nations Convention on the Law of the Sea (“the Convention”). States of all sorts, with the most diverse interests in the oceans, from all parts of the globe, are parties to the Convention. For all the parties to the Convention virtually all legal questions concerning the law of the sea are now governed by the Convention. Such questions are, in effect, questions of interpretation and application of the Convention. While interpretation and application of particular provisions may vary somewhat from one state to another, the scope of such differences is confined by the fact that each party is working from the same authoritative text. Also, as parties to the Convention, these states, as well as the European Union, the one international organization that is a party, have rights to participate in the bodies established by the Convention and related agreements. The U.S., however, has not signed the Convention, nor has it acceded to it, so it is not a state party. It is, therefore, not bound by the terms of the Convention and it may not participate, absent some special arrangement, in the ongoing work of Convention-related bodies. In 1994, however, the U.S. signed a subsequent, related agreement, the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (“the Implementation Agreement”), which was intended to cure certain defects in the Convention to allow the U.S., as well as other industrialized nations, to become parties to it. In October 2003, during the 108th Congress (2003-2004), the U.S. Senate Foreign Relations Committee held hearings to examine the question of U.S. accession to the Convention and ratification of the accompanying Implementation Agreement. On February 25, 2004, the Committee voted unanimously (19-0) to support U.S. accession/ratification and reported the Convention and the Implementation Agreement to the full Senate for its consideration. On March 11, 2004, the Convention was placed on the Senate schedule and became eligible for the final phase that would bring the U.S. into state party membership. At the adjournment of the 108th Congress, the Convention had not been brought to a vote. As a result the Convention has slid back in the domestic “advice and consent” process and must once again be considered by the Foreign Relations Committee before it can be submitted to the full Senate. In light of the United States’ twentythree year long desistance from ratification/accession, and particularly in light of the failure to have the Convention brought to a vote in the Senate in 2004, a number of questions merit examination. Why did the Senate refrain from voting on the Convention? Are there any credible signs that indicate U.S. ratification/accession is likely to occur soon? And, if the U.S. remains “outside the Convention” how might it protect its global ocean interests? For the first century of its existence, the U.S. used its waters and coasts in a fashion similar to other maritime states. The seas were employed as marine highways, carrying people and goods in domestic and international commerce. Fishery resources were exploited. Coastal areas were developed to facilitate water dependent industries and to spur economic expansion. In the 1890s the U.S. embarked on an ambitious program to create a powerful “battleship navy,” capable of projecting military power not only in the Caribbean and Latin America, areas in which the U.S. had long claimed a special interest, but also throughout Asia and beyond. From that time to the present, as U.S. naval power and commercial and strategic interests abroad expanded, the U.S. has regarded those aspects of the international law of the sea that impact military uses as having overriding importance. Its principal interests in this regard were to maximize freedom of navigation for its naval vessels (and later freedom of overflight of ocean areas for its military aircraft), and, to that end, to resist encroachments on traditional freedom of the seas. In the 1890s, also, offshore oil and gas development began off the west coast of the U.S. in the form of pier-based oil drilling. As technology rapidly developed in the 20th century it became apparent that vast sources of economic goods and uses lay off the coasts of the U.S. This realization prompted President Truman to proclaim exclusive jurisdiction over the resources on and below the continental shelf of the U.S. in 1945. This claim served as a watershed in law of the sea doctrine in that it was based more on contours and contiguity than on existing substantive legal principles or practices. The Proclamation did, however, fit into a recognized method of international law development, i.e., the practice of claim and response. In this case, the U.S. claimed sovereignty over the continental shelf and the international community could respond in roughly one of two ways: rejection or acquiescence and adoption. The latter path was chosen and shortly after the U.S. claim was issued, maritime nations around the globe issued similar claims. While the process of claim-and-response often involves decades or centuries to fashion what becomes accepted as customary international law, the practice of so many states prompted one commentator to suggest that a customary international law principle regarding continental shelf claims may have crystallized in as few as four or five years. At about the same time, the end of the Second World War prompted the international community to seek to codify international law in a large number of areas under the auspices of the U.N. The law of the sea was selected as one of those areas. Four multilateral treaties emerged from the first United Nations Conference on the Law of the Sea (now known as UNCLOS I): the Convention on the High Seas, the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the Continental Shelf, and the Convention on Fishing and Conservation of the Living Resources of the High Seas. These treaties effectively split up state interests in the oceans and codified certain rules, yet they remained ambiguous in some areas and completely deficient in others. Further, none of the four conventions contained compulsory dispute resolution processes, in spite of the fact that the use of ocean space and exploitation of ocean resources was expanding rapidly and concomitantly, increased the likelihood of conflict. Efforts to close some of the gaps and clarify some of the ambiguities via a second U.N. Conference on the Law of the Sea failed. In November 1967, in a speech before the United Nations General Assembly, Malta's Ambassador, Arvid Pardo, called the delegates’ attention to the potential wealth that lay on the ocean seabed. He proposed that the seabed area beyond the jurisdictional boundaries of states be declared the “common heritage of mankind” and that any resources retrieved from that area ought to be shared in a fair and distributive manner. Remarkably, similar statements had been uttered by U.S. administrations over the course of the nation’s history. In the early years of the republic, John Adams noted that “the oceans and [their] treasures are the common property of all men.” In 1966, President Lyndon Johnson declared that “[w]e must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.” In the U.S. Congress one year later, Senator Claiborne Pell was advocating the formation of a new framework governing the use of the seabed and its resources. By 1970, the U.N. General Assembly drafted a Conference Resolution, which called for the convening of a new law of the sea conference and established a Seabed Committee, which set the stage for what would become the Third United Nations Conference on the Law of the Sea (UNCLOS III). Negotiations for a comprehensive law of the sea treaty began in 1973. In the U.S., there was bipartisan support for such a treaty. Prompted by the Stratton Commission Report in 1969, the Nixon administration undertook a thorough review of U.S. policy on the use of the oceans. In 1970, President Nixon proposed that all nations adopt as soon as possible a treaty under which they renounced all national claims to the natural resources of the seabed beyond the point where the high seas reach a depth of 200 meters and agreed to regard these resources as the common heritage of mankind.

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