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As regards maritime boundaries, there presently exist about 200 undemarcated claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The end of the Cold War and global expansion of free market economies have created new incentives to resolve these disputes, particularly with regard to offshore oil and natural gas exploration. During the last few years hundreds of licenses, leases or other contracts for exploration rights have been granted in a variety of nations outside the U.S. These countries are eager to determine whether or not hydrocarbons are present in their continental shelves, and disputes over maritime boundaries are obstacles to states and business organizations which prefer certainty in such matters. We have had two such cases here in North America where bilateral efforts have been made to resolve themaritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between the U.S. and Canada in the Beaufort Sea. Both of these initiatives have been driven by promising new petroleum discoveries in the regions. The boundary line with Mexico was resolved in 2000 after a multi-year period of bilateral negotiations. Negotiations with Canada, however, seem to be languishing.
Another area where bilateral boundary discussions are in process is the Barents Sea where Russia and Norway are trying to address a number of serious issues. For a long period of time there has been a moratorium on delimitation for the development of mineral resources in the central part of the Barents, which the Russians believe could be as rich in hydrocarbons as the Caspian.
While such bilateral resolution is always an option, the Convention provides stability and recognized international authority, standards and procedures for use in areas of potential boundary dispute, as well as a forum for dealing with such disputes and other issues.
Is there a cost involved in exploring this far frontier? The Convention provides a reasonable compromise between the vast majority of nations whose continental margins are less than 200 miles and those few, including the U.S., whose continental shelf extends beyond 200 miles, with a modest obligation to share revenues from successful minerals development seaward of 200 miles. Payment begins in year six of production at the rate of one percent and is structured to increase at the rate of one percent per year to a maximum of seven percent. Our understanding is that this royalty should not result in any additional cost to industry. Considering the significant resource potential of the broad U.S. continental shelf, as well as U.S. companies’ participation in exploration on the continental shelves of other countries, on balance the package contained in the Convention, including the modest revenue sharing provision, clearly serves U.S. interests.
Offshore petroleum production is a major technological triumph. We now have world record complex development projects located in 7,500 feet of water in the Gulf of Mexico which were thought unimaginable a generation ago. Even more eye-opening, a number of exploration wells have been drilled in the past four years in over 8,000 feet of water and a world record well has been drilled in over 10,000 feet of water. New technologies are taking oil explorers out more than 200 miles offshore for the first time, thus creating a more pressing need for certainty and stability in delineation of the outer shelf boundary. Before the LOS Convention there were no clear, objective means of determining the outer limit of the shelf, leaving a good deal of uncertainty and creating significant potential for conflict. Under the Convention, the continental shelf extends seaward to the outer edge of the continental margin or to the 200-mile limit of the EEZ, whichever is greater, to a maximum of 350 miles. The U.S. understands that such features as the Chukchi Plateau and its component elevations, situated to the north of Alaska, are not subject to the 350-mile limitation. U.S. companies are interested in setting international precedents by being the first to operate in areas beyond 200 miles and to continue demonstrating environmentally sound drilling development and production technologies.
Today our industry associations and their member companies are devoting much time and money lobbying for increased access to public lands within the U.S. Exclusive Economic Zone. The Law of the Sea Treaty will provide access opportunities to explore vast acreage beyond 200 miles off the coast of any nation that can delineate its shelf in a manner that meets the requirements of Article 76 of the Convention.
Next, Rear Admiral Frederick J. Kenney presented the importance of UNCLOS to the U.S. Coast Guard. He emphasized that on a daily basis the Coast Guard’s operational officers rely on the freedom of navigation that UNCLOS attempts to preserve. The Coast Guard is the only U.S. surface presence in many parts of the world, and this widespread presence allows the Coast Guard to respond quickly to international incidents. For example, a Coast Guard cutter was the first U.S. presence in Georgia after Russian troops entered the country in 2008.
Because the United States is not a party to the Convention, however, Rear Admiral Kenney explained that the United States cannot use its dispute resolution mechanisms for resolving conflicting claims to ocean territory. In one important dispute, the United States and Canada disagree about whether Passamaquoddy Bay is part of Canada’s internal waters and thus whether Canada can block passage of commercial shipping through the bay to East Port, Maine. If plans for a liquid natural gas (LNG) terminal in East Port move forward, Rear Admiral Kenney predicts this dispute will intensify without any clear means of resolution.
Rear Admiral Kenney drew on his personal experience as a negotiator to discuss the difficulties the United States faces in negotiating other treaties because it is not a party to UNCLOS. As the primary regulator of U.S. shipping, the Coast Guard participates in treaty negotiations with the International Maritime Organization (IMO). However, the IMO’s primary treaties are inextricably linked to UNCLOS, and Rear Admiral Kenney opined that the United States loses credibility in IMO negotiations because it is not a party to UNCLOS. Further, Rear Admiral Kenney suggested that bilateral agreements regarding drug enforcement would be easier to negotiate if the United States were a member of UNCLOS because they would be able to incorporate UNCLOS’ enforcement mechanisms.
In the final presentation, Ambassador David A. Balton discussed how ratifying UNCLOS would advance numerous U.S. interests. First, he noted that the United States is the world’s leading maritime power. Only as a party to UNCLOS can the United States best invoke and ensure respect for its provisions on freedom of navigation. Second, the United States has the largest EEZ on the planet, as well as a continental shelf that is likely to be the envy of most other nations. Only as a part can the United States best secure our rights as a coastal state under UNCLOS. Third, only as a party to UNCLOS can the United States make best use of the treaty’s provisions on the marine environment and fisheries, or shape the rules for mining the seabed beyond the jurisdiction of any nation. Ambassador Balton agreed with Rear Admiral Kenney that the United States would benefit from being able to use UNCLOS procedures for resolving disputes, adding that becoming a party would allow the United States to nominate members of the International Tribunal for the Law of the Sea. He also agreed that accession would allow the United States to maximize leadership on maritime issues. Further, Ambassador Balton emphasized that accession would better allow the United States to maintain the balance of interests in the law of the sea described by Professor Caron. Accession is preferable to reliance on customary international law because customary law is subject to erosion. Overall, Ambassador Balton explained that the United States secured everything it wanted in the convention, given that the related 1994 agreement on deep seabed mining satisfied our concerns with respect to those issues.
Next, Ambassador Balton discussed emerging issues that will best be handled under the UNCLOS framework. First, as the oceans warm the Arctic will become more accessible for shipping and oil and gas extraction, among other uses. All other Arctic nations are parties to UNCLOS, and the United States’ failure to join complicates negotiations and weakens our credibility in international talks. Second, Ambassador Balton emphasized the disadvantage we face as a non-party in respect of our extended continental shelf, the area of seafloor beyond 200 miles from our coasts that meet certain criteria set forth in the Convention. The United States estimates that it has an extended continental shelf approximately the size of California. Only as a party to UNCLOS can the United States best secure international recognition of the outer limits of our continental shelf.
[Question] Will there ever reach a point where the United States will have missed so many opportunities to participate in dispute resolutions, or negotiations pursuant to the Convention, that it will no longer will have an interest in joining? Ambassador Balton responded that delay does not mean it is somehow too late to join UNCLOS, but that it has real negative consequences. Even if the United States joined UNCLOS today, it would be some time before the Commission on the Limits of the Continental Shelf would make recommendations about the U.S. continental shelf.
[Question] How do the panelists respond to the objection that UNCLOS would infringe on U.S. sovereignty? Professor Caron answered that, if anything, UNCLOS represents a tremendous effort to preserve sovereignty in oceans, and expressed that he does not understand the argument that UNCLOS somehow diminishes sovereignty. Ambassador Balton agreed, adding that it is important to try and understand the objections to UNCLOS. He countered the notion the United States can depend on the Navy to assert sovereignty over the ocean, explaining that the Navy is a major advocate of UNCLOS because it is more effective and efficient to use the rule of law rather than military force. Commander Kraska also noted that most materiel moves by non-naval vessels, so it is important to have a regime that prevents other countries from blocking those materiel shipments.
In June of 2012, the Senate Foreign Relations Committee held an array of hearings on UNCLOS to drum up congressional support for the Convention’s ratification. Senator John Kerry lead the charge and invited key players from the oil and gas, telecommunications, offshore mining, manufacturing, shipping, environmental, and tourism industries. Their argument was straightforward: without a universally recognized legal regime governing the exploitation of the mineral resources of the deep-sea beyond the zones of national jurisdictions, US companies would not assume the investment rights associated with such projects until it was clear who had “clear legal title” to the resources extracted. Uniformly, these industry leaders testified that accession to UNCLOS would provide such clarity, which would subsequently create jobs, protect the environment, and ultimately lead to a stronger US economy.
The U.S. Senate Foreign Relations Committee has just approved a resolution condemning China’s behavior in Asian seas — behavior that China sees as defending its claims.
Meanwhile, rival claimants as well as the United States and other Western powers have criticized some of China’s actions in its 200-nautical mile Exclusive Economic Zone as violating the freedom of navigation. They and Japan say China’s drawing of enclosing baselines around the disputed Senkaku Islands (called the Diaoyu Islands in China) in the East China Sea is illegal.
China used to argue the “unequal treaty” doctrine regarding boundaries that were concluded with colonial or imperial powers. It is thus not surprising that its leaders occasionally revert to rhetoric reminiscent of that era proclaiming that this or that area is divine and sacred and has belonged to China since “time immemorial.”
Indeed some of China’s political analysts and particularly military officers seem to be questioning why China ratified the Law of the Sea Treaty in the first place. Part of the explanation is that China assumed — obviously incorrectly — that the Law of the Sea dispute settlement mechanism could be avoided by direct negotiations to settle maritime jurisdictional disputes.
China’s most significant and increasingly vocal critic is the U.S. This is of course ironic since the U.S. has not joined some 164 other countries including its allies in ratifying the treaty. Yet it persists in interpreting its provisions in its favor. Unwittingly the U.S. may be both showing China a way out of its dilemma and stimulating it to take it.
Of course, China’s withdrawal from the convention would weaken the reputation and authority of the tribunal and international law in general. It would also give notice that China is not to be trifled with — that it will not “be taken advantage” of by small Asian countries — some still influenced by their former colonial masters.
Unfortunately there is a long political history of world powers using, not complying with, or making new international law to further and protect their interests. Prime among these has been the U.S. Its refusal to join the 1982 Law of the Sea Treaty and the International Criminal Court, its withdrawal from the ICJ case, and its “invasions,” cyber and drone attacks, and interference in the internal affairs of other countries have certainly set a bad precedent.
The U.S. and its Asian allies need to be careful lest they push China into actually being what they fear most — a rogue country that uses might rather than right in its international relations.
Let us hope that China considers the costs of withdrawing from the treaty greater than the benefits.