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Acceding to UNCLOS would commit the U.S. to controlling its pollutants, including alleged “harmful substances” such as carbon emissions and other greenhouse gases (GHG), in such a way that they do not negatively impact the marine environment. The U.S. would also be obligated to adopt laws and regulations to prevent the pollution of the marine environment from the atmosphere and could be liable under international law for failing to enact legislation necessary to prevent atmospheric pollution. Moreover, such domestic laws and regulations “shall” take into account “internationally agreed rules, standards and recommended practices and procedures.” The “internationally agreed rules, standards and recommended practices” that could be invoked by UNCLOS litigants may include instruments such as the U.N. Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol.
A consensus has emerged within the international environmental and legal community that the United States is the best target for an international climate change lawsuit. One law professor has characterized the United States as a likely target because it is a developed nation with high per capita and total GHG emissions, adding that the “higher the overall historic and present contribution to global emissions by the defending party, arguably the better the chance of a successful outcome.”
Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or through the atmosphere. Regardless of the merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
Unlike a resolution passed by the U.N. General Assembly or a recommendation made by a human rights treaty committee, judgments issued by UNCLOS tribunals are legally enforceable upon members of the convention. Article 296 of the convention, titled “Finality and binding force of decisions,” states, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”
The U.S. legal position set forth in 1983 on deep seabed mining remains the same today. According to the Restatement of the Law, Third, of the Foreign Relations Law of the United States, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining. As related by the Restatement, “like the fish of the high seas the minerals of the deep sea-bed are open to anyone to take.”
The U.S. position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980, which Congress enacted two years before the adoption of UNCLOS to provide a framework for U.S. corporations to conduct deep seabed mining until such time as the United States joins an acceptable convention on the law of the sea. The DSHMRA states the U.S. position on the legality of deep seabed mining as follows:
[I]t is the legal opinion of the United States that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reasonable regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law.
In sum, the long-held position of the United States, both domestically and internationally, is that U.S. citizens and corporations have the right to explore and exploit the deep seabed regardless of whether or not the United States is a party to UNCLOS.
However, pursuant to long-standing law and policy the United States already enjoys and exercises full jurisdiction and control over its ECS. In addition to the 1945 Truman Proclamation, in which President Harry S. Truman declared that the United States “regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control,” in 1953 Congress passed the Outer Continental Shelf Lands Act, which defined the outer continental shelf as “all submerged lands lying seaward and outside of the area of lands beneath navigable waters...and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.”
After the adoption of UNCLOS in 1982, the U.S. affirmed its jurisdiction over its entire continental shelf, including the ECS. Specifically, in November 1987 a U.S. government interagency group issued a policy statement declaring its intent to delimit the U.S. ECS in conformity with Article 76 of UNCLOS (which provides a formula for measuring the extent of a coastal state’s ECS). That statement read, in pertinent part, “The United States has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76, paragraphs (1), (2) and (3).”
Determination of who owns the Arctic Ocean and any resources that might be found beneath those waters will have significant economic implications. The U.S. Department of Energy predicts a decline in petroleum reserves and, despite oil prices topping $146 in June 2008, the demand for oil is growing.6 In addition to the vast mineral resources, the unpredictability of the Persian Gulf region makes the Arctic region even more attractive for exploitation. Russia and Norway have already submitted their claims to the Commission on the Limits of the Continental Shelf (“the Commission”), while Canada and Denmark are collecting evidence to prepare their submissions in the near future.7 All of these nations can gain considerable oil and gas resources as a result of the Convention.
However, one Arctic state has so far failed to join the race. Unlike the other Arctic nations, the United States has not ratified the Convention. Although the United States has complied voluntarily with the Convention, the failure to ratify the Convention could foreclose its ability to tap into potential energy resources. This failure could prevent significant contributions to American energy independence, and increase security threats. Thus, the best way to guarantee access to the Arctic’s resources and to protect other economic and non-economic interests is for the United States to become a party to the Convention.
The United States has lived outside the Convention for the past 30 years without any serious adverse repercussions. To the extent U.S. oceans poli- cy has gone off-course during that period, the missteps have been from self- inflicted wounds, such as the Northern Right Whale MSRe system, the offshore oil drilling moratorium off California, the Northwest Hawaiian Islands PSSA designation, the 2009 Polar Bear critical habitat designation in the rich off-shore oil fields off Alaska, the 2007 and 2009 marine national mon- ument designations in the Pacific, and NOAA’s recent proposal to establish “hot spots” in the ocean to protect marine mammals from sonar use.31 So the question is – can we live without it for another 30 years? If CFR and the Obama Administration really believe that joining the Convention is critical to U.S. national interests, they will have to do a better job at explaining why it is important to become a party to the treaty. Relying on feeble arguments like the ones articulated in the CFR Expert Brief will, on the one hand, not convince the skeptics and, on the other, provide the Convention’s opponents with ample ammunition to undermine the Administration’s position. Let’s face the facts – although the Convention was well-intended when it was originally negotiated, it has failed to achieve many of its intended purposes. Deep seabed mining remains a pipedream. Creeping jurisdiction has not been curtailed – in fact, it has proliferated in some respects. Moreover, rather than reduce tensions, the Convention’s provisions on the EEZ and continental shelf have rekindled long-standing territorial disputes and disputes over fisheries and hydrocarbon deposits, in areas like the South and East China Seas, that have the real potential to result in serious conflict. Until we figure this all out, as long as we retain our leadership role at the IMO, maintain a strong, capable and well-trained Navy, and curtail our own excessive maritime claims in the name of environmental protection, U.S. ocean and national security interests will be preserved.
Bottom line: any changes or reinterpretation of UNCLOS will more likely occur at the IMO, not the United Nations. Although UNCLOS may be amended through the simplified procedure set out in UNCLOS Article 313, it only takes one State Party to derail that procedure. Article 313(2) provides that “if . . . a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected.” The only other way to amend the Convention is through the convening of a diplomatic conference under Article 312. As we saw with Third United Nations Conference on the Law of the Sea (UNCLOS III), getting consensus on sensitive maritime issues took nine long years and difficult negotiations to complete. Any proposed amendments to the Convention would probably face similar scrutiny by the State Parties at the conference.