Adrift at Sea.
International law (Evaluation)
Maritime law (International aspects)
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Name: Harvard International Review Publisher: Harvard International Relations Council, Inc. Audience: Academic Format: Magazine/Journal Subject: Business; Economics; Law; Political science Copyright: COPYRIGHT 2000 Harvard International Relations Council, Inc. ISSN: 0739-1854
Date: Summer, 2000 Source Volume: 22 Source Issue: 2
Product Code: 9410000 United Nations NAICS Code: 92812 International Affairs SIC Code: 9721 International affairs
Organization: United Nations
Geographic Scope: United States Geographic Name: United States Geographic Code: 00WOR World
Statute: United Nations Convention on the Law of the Sea

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US Interests and the Law of the Sea

While more than 130 countries have become party to the United Nations Convention on the Law of the Sea (UNCLOS), the United States, beholden to the short-term interests of its mining lobby, has yet to hold Senate hearings on the document. Prospective parties to UNCLOS first met in 1958 to create a corpus of international law for the 70 percent of the world's surface, the oceans, which the United Nations has termed the "common heritage of mankind."

According to former UN Secretary-General Javier Perez de Cuellar, UNCLOS embodies "the will of an overwhelming majority of nations from all parts of the world, at different levels of development and having diverse geographical characteristics." But the United States, after refusing to sign the document in its initial formulation, has been consistent only in its objections. By failing to ratify UNCLOS because of fear of compromising international power and economic interests, the United States has relegated itself to bystander status in a significant functional body of international jurisprudence.

The convention encompasses a broad range of international issues. It seeks to delineate coastal and ocean jurisdiction, to sanction the protection of marine environments, and to legislate inter-state disputes over maritime issues. National sovereignty, states' rights, mining, environmental interests, military positions, and technological advances are just several of the stakes involved. The convention has at times reconfigured traditional state relationships, and has been both a source of global frustration and hope.

Unintended Consequences

UNCLOS aims to accommodate conflicting interests by legislating on four main issues. It extends and defines coastal jurisdiction in terms of power and responsibility, strives to create laws for oceans beyond the control of individual states, regulates the marine environment on a global scale, and provides a vehicle for sea-dispute settlements in the form of the International Tribunal. The reach of the convention includes both the ocean floor beyond all state boundaries and national Exclusive Economic Zones (EEZs), the 200 nautical miles (nmi) beyond the 12 nmi sovereign territorial seas in which coastal nations have the sole right to explore and reap the products of mines, oilfields, and fisheries.

At stake in the convention are issues as broad and complex as they are relevant; treaty negotiators found many of the solutions to maritime problems produced contradictory results. For example, rights of free passage are essential to both commercial and military endeavors, but legislation concerning ocean pollution creates tension between responsibilities of coastal states and rights of undisrupted passage. Defining ownership of coastal waters raises questions of fishing rights, and the proper boundaries of continental shelves, which are rich in oil and natural gas (and which exist within 200 nmi of national coasts). One of the most contentious issues is the debate over deep-sea mining, as a wealth of minerals, such as copper, nickel, cobalt, and manganese, are found at depths of more than 15,000 feet.

Even the EEZs, which were among the earliest successful legislation of UNCLOS, have engendered controversy. The tensions raised from EEZ controversies are indicative of some of the inherent conflicting interests between states that UNCLOS has attempted to resolve. For example, in 1972, Britain attempted to annex Rockall, a tiny uninhabitable island in the North Atlantic, for the oil deposits in its 125,000-square-mile EEZ. Ireland, Iceland, and Denmark have all expressed competing claims to the island or its surrounding ocean zones. The environmental group Greenpeace recently joined the fray, occupying the island in a high-tech solar survival capsule in 1997 to protest British oil exploration in the area.

The seemingly benign concept of leasing EEZs between nations has also generated international controversy, again demonstrating a facet of tightly-knotted issues at stake. In many cases, leasing of EEZs has had unintended consequences for a state's domestic economy. In the case of European overfishing (which has increased dramatically in recent years), in order to keep fish prices down, the EU has supported fishing outside of European waters. (25 percent of the fish currently sold in the EU is caught outside European waters). In 1997, in accordance with the EU's implicit fishing policy of "pay, catch, and go" (under which sovereign nations are paid for the loosely regulated use of their marine rights), the EU reached an agreement with the Senegalese government allowing its member states to fish close to the Senegalese border.

Such agreements, stemming from UNCLOS EEZ agreements, have proven lucrative for the state: 70 percent of Senegal's annual government revenues come from the huge fees that Canada and some Asian and European nations pay to use its waters. However, the government policies, sometimes enacted under significant foreign economic pressure, also pose a destructive threat to the lifestyle of the 35,000 domestic fishermen who once harvested these waters. For some, there is no alternative but to fish, while others have abandoned the livelihood that has sustained generations of their families in favor of subsistence agriculture, increasing the pressure on land already infertile from overuse. In addition, the leasing of Senegal's EEZs has destroyed the balance of harvesting and regeneration in waters that supply 80 percent of the fish exported from Africa, the Caribbean, and Pacific island countries. Thus even this purportedly straightforward designation by UNCLOS has also produced negative domestic effects for the countr y it is supposed to aid.

The specific contradictory policy issues demonstrate the difficulty in enforcing a single treaty with such a wide range of varying state interests. The United States and multinational corporations favor domestically controlled enterprise under the auspices of a larger authority, while many developing states and "geographically disadvantaged" (landlocked) nations, wish to preserve and protect ocean resources for international use. Still, after its disappointing failure to secure a treaty for the two decades after the first conference, the convention authored the core of the agreement as it exists today. Secretary of State Warren Christopher termed the UNCLOS treaty "the most complex international instrument that has ever been negotiated."

Debates over ownership of the oceans have created new antagonisms and strange bedfellows as traditional axes of ethnicity, wealth, and geography flexibly realigned in response to questions of maritime policy. EEZs, covering one-third of all ocean areas, generated opposition between 52 land-locked and 60 coastal stares. Austria and Hungary united with Zambia, Bolivia, and Afghanistan to demand compensation for "geographically disadvantaged" nations. Defense departments sought communal sea routes, regardless of the concerns of coastal powers. Private companies and sovereign states found themselves at odds over delineation of boundaries. Canada and the United States divided over nickel mining, while naval interests allied the United States with the USSR. Developing nations feared the monopoly that the mining firms of developed nations, with their advanced technology, would obtain.

Despite the historical frustration with the goals of the convention, it has yielded significant results that have bolstered the credibility of international law. UNCLOS resolved laws for the navigation of territorial seas, and set the limits of territorial waters and continental shelves. Environmentalists, economists interested in maritime commercial passage, and naval strategists concerned with submarine movement disagreed on whether to regulate international passage through straits, and how to do so. Despite such complications, the parties successfully negotiated a compromise limiting freedom of over-flight and navigation within national economic zones, and gave countries bordering straits some jurisdiction in addition to the responsibility for controlling pollution in the straits. In light of such successes, then Secretary General Perez de Cuellar described the global cooperation of the convention as "a wind of the universal level."

Deep Waters, Shallow Thoughts

Though the convention has yielded clear global benefits, the United States still refuses to sign it. Henry Kissinger, in acknowledging that unmonitored international struggle for the ocean's resources would be devastating, supported US efforts at negotiating a global maritime treaty, as did the Nixon, Ford, and Carter administrations. However, in 1982, President Reagan reversed course by refusing to sign the document. He objected to sections on seabed mining, which called for industrial nations to share discovered technological and material benefits. Consequently, in 1994 international negotiators brokered the Deep Sea-Bed Mining Agreement, and a new version of the convention accommodating all of the United States' requests was submitted to the Senate in October 1994, endorsed by the Clinton administration and signed by Madeleine Albright, then Ambassador to the United Nations. The Convention remains in the Senate Foreign Relations Committee awaiting hearings. The power of economic interests is evident; US m ining companies are not pressuring Congress to act since capital-intensive mining is not yet lucrative. However, as the International Seabed Authority begins drafting regulations governing deep seabed mining, US businesses will find themselves unable to obtain long term mining licenses that member states, including France, Japan, and Russia, will receive because of their membership.

In 1982, deeming the convention in opposition to free enterprise, the United States was the only western industrialized nation and one of only four countries to vote against the final treaty. President Reagan feared the precedent that the UNCLOS would create as a possible forum in which US interests might be subjugated to the majority of the convention, possibly by a bloc of developing nations. Further, Reagan opposed the mandatory transfer of private technology to the public sector because he perceived the convention's international regulations would reduce private incentives for deep-seabed mineral harvesting. Despite "grandfather rights," which ensured that for the next 30 to 50 years the United States was guaranteed access to raw materials within the convention, the US delegation interpreted each small compromise as a first step toward a loss of sovereignty. In basing its hopes on a potential "mini-treaty" among industrialized nations and ignoring the possibility of creating such an agreement within the existing treaty, the United States drew its own commitment to negotiations into question. As a result, while 130 countries achieved compromise and a basis for further discussions, the United States relegated itself to a position of technical involvement.

The current US status of "voluntary adherence" to such a vital and extensive piece of international legislation is the consequence of fears that national interests will go unprotected if overseen by an international authority, particularly one that has such direct influence over commercial trade and interests. The world's four largest mining companies, US Steel Corporation, Kennecott Copper Corporation, International Nickel, Inc., and Lockheed Aircraft Corporation, are all at least partially US-based and have invested over US$25 million in mining technologies; conversely, most developing nations initially favored no mining at all under the convention. Consequently, the United States feared a "mineral OPEC" in which a private corporation's right to explore the seas would be diminished.

Though adhering to its non-party status, the United States strove to postpone important events such as the Commission on the Limits of the Continental Shelf a meeting of the 21-person committee that Secretary of State Warren Christopher termed vital to national interests. The Senate Foreign Relations Committee remained myopically unwilling to ratify the treaty, citing international mining regulations of any sort as inimical to US domestic interests, despite the fact that in 1996 the United States achieved a two-year provisional agreement within the LOS convention, granting it temporary privileges. But the United States' role in negotiating continental shelf boundaries, significant for the natural resources at stake, was essentially non-existent because of its failure to ratify the treaty. The Commission on the Limits of the Continental Shelf not only met without US involvement but determined the maritime boundaries of the continental shelf, rich in oil, gas, methane hydrates, and numerous metals, especially manganese. Mining on land or using substitutes for seabed metals remained significantly cheaper than deep seabed mining, which was determined not to be viable until 2025 at the earlies

Missing the Boat

Since November 1996, the Law of the Sea has been a fully functional reality, arbitrating complex issues pertinent to environmental protection, defense, and mining. It helps countries share meteorological and oceanographical knowledge, contributing to a global understanding of the marine environment. It includes provisions for the innocent passage of warships and for improved surveillance systems. The achievement of an internationally acceptable agreement on mining, the "parallel system," is especially notable. This system requires that each potential mining company work with the International Mining Authority, while both organizations share the data collected from their mining enterprises.

On environmental issues, the convention has been responsible for significant agreements, though still respectful of national interests. The convention has provisions for environmental assessment, habitat protection, emergency planning, a legal framework for marine environments, and the prevention of transboundary pollution. Perhaps most importantly, it provides for international enforcement of its statutes, and high standards for the preservation of disappearing ecosystems and species. For example, islands belonging to China, Brunei, Malaysia, the Philippines, and Vietnam all control EEZs within the South China Sea. Since these nations are all parties to UNCLOS, obligatory cooperation in preserving marine environments and living resources has been possible.

Since the United States' provisional two-year status in the convention ended in 1998, US representatives have had no role in the convention's decision-making bodies. By failing to ratify the treaty, the United States has sacrificed many security and economic benefits as well as undermined its own rhetoric regarding multilateral commitment. In the security realm, ratifying the LOS treaty would serve US interests by codifying current bilateral and multilateral agreements between the US and local governments of more than ten strategically located countries, including North Korea, Pakistan, Malaysia, and China. US recognition of transparent transportation laws would minimize transport time in a crisis that would require rapid deployment of the navy.

In the ecod by the convention welmingly benefit US information and technology businesses, which provide 70 percent of the world's telecommunication networks and require cables in the high seas. These arguments have not fallen on deaf ears. Since the 1994 renegotiations of the LOS treaty, the White House, State, and Commerce departments have supported the treaty. An array of groups, including the fishing and shipping industries, as well as environmental lobbies, have voiced their support.

Only the mining interest opposes the treaty's ratification, despite the apparent long-term opportunities provided through the operation of the parallel system. Yet by continuing to opt out, the mining industry may be damaging its own interests. Member states of the convention have begun to draft more detailed mining regulations, and the granting of licenses to member states will only increase. Deep-sea mining is becoming increasingly technically and economically feasible, but with the expiration of its two-year provisional status, the US has no voice in this discussion. Where it once feared it would lose decision-making authority, the US can only watch while the ocean beds are divided amongst prospective miners. While the United States once feared losing influence to an international agreement, the implementation of that agreement without the United States has put it in the least influential position of all.

UNCLOS is environmentally, legislatively, militarily, and politically sound, the product of decades of negotiation among compromising sovereign states. Goals once scarcely tangible a viable UNCLOS international court or mining authority, for instance have become realities. The convention is both broad and progressive, and in refusing to ratify it, the US is losing its voice in the increasingly important debate over the world's oceans.

SHRUTI RAVIKUMAR, Staff Writer, Harvard International Review
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Copyright 2000 Gale, Cengage Learning. All rights reserved.

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