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In another instance, Canada sparred with the United States over fishing rights. In 1994, Canada developed a plan to levy a $1100 fee on United States fishing vessels that travel along the 650mile Inside Passage from Puget Sound, Oregon and Washington to Alaska.n231 Senator Pell argued:
The State Department concluded that this transit fee was inconsistent with international law, and particularly with the transit rights guaranteed to vessels under customary international law and the Law of the Sea Convention. Had the United States and Canada both ratified the Law of the Sea Convention ... The Canadians might have been more hesitant to take the steps they did. In any event, the full force of the convention and the international community could have been brought to bear for a prompt resolution of the dispute.n232
Thus, according to Senator Pell, UNCLOS III could help the United States resolve its international conflicts over fishing.
The effects of overfishing may be the most devastating in Canada.n221 As a result, Canada has made drastic decisions in an attempt to save the fish stocks. In the 1990s, the northern cod fishery off the Grand Banks near Canada collapsed.n222 Canada made the unpopular decision to close the fishery in an attempt to maintain sustainable fish stocks within its EEZ.
The decision focused attention on nations fishing the same stocks outside Canada's EEZ. The result was the socalled "turbot [cod] war," an open conflict with fishermen from outside Canada who were perceived to be contributing to the problems on the Grand Banks. In 1995, a Canadian vessel fired warning shots and impounded the "Estai," a Spanish fishing vessel operating on the Grand Banks off the coast of Newfoundland. In a discussion about the United States' ratification of UNCLOS III, U.S. Senator Claiborne Pell argued before the U.S. Senate that similar incidents could be avoided in the future if UNLCOS III gains widespread support:
Had Canada and Spain both been party to the Law of the Sea Convention, this dispute could have been settled without the firing of shots. Regrettably, such incidents are the result of the growing uncertainty that prevails with regard to high seas fisheries and will only be avoided if the Convention on the Law of the Sea becomes a widely recognized instrument on which ... to establish a lasting regime for those fisheries.
As national governments debate the merits of joining UNCLOS III, international conflicts over fishing rights continue to develop throughout the world. Of particular note are: 1) disputes in the Spratly Islands of southeast Asia; 2) negotiations between Japan and South Korea over the Islets of Takeshima; 3) negotiations between China and South Korea involving shared waters; and 4) conflicts over conservation practices between Canada, Spain, and the United States. These disputes illustrate some of the issues that need to be settled to solve the overfishing problem. In each instance, agreements are being worked out in accordance with UNCLOS III. Unfortunately, although UNCLOS III provides the framework to begin resolving these disputes, a great deal of uncertainty surrounding international fishing regulation continues.n185 In many instances who has the power to dictate fishing rights and territory remains unclear.n186 In some cases, fishing practices that lead to unhealthy depletion of fish stocks continue unchecked.n187 In other instances, temporary solutions are implemented, but the future still is unknown. Widespread acceptance of UNCLOS III would provide the necessary structure to resolve these tenuous situations.
Over the past two decades international maritime law has evolved from a set of rules designed to avoid naval warfare, by keeping maritime powers apart, toward a new global framework designed to facilitate maritime security cooperation, by bringing naval forces together to collaborate toward achieving common goals. The effects of this change are far-reaching—for the first time, law is a force multiplier for pursuing shared responsibilities in the maritime domain. In a departure from the past hundred years of state practice, the contem- porary focus of international maritime law now is constructive and prospective, broadening partnerships for enhancing port security, as well as coastal and in-shore safety, extending maritime domain awareness, and countering threats at sea. In contrast, the predominant influence of law on sea power from the first Hague conference in 1899, through two world wars, and continuing until the end of the Cold War, was focused on developing naval arms-control regimes, refining the laws of naval warfare, and prescribing conduct at sea to erect “firewalls” that separated opposing fleets. The maritime treaties were designed to maintain the peace or prevent the expansion of war at sea by controlling the types and numbers of warships and their weapons systems and by reducing provocative or risky behavior.
Today treaties do more than reduce friction and build confidence: contemporary international maritime agreements spread safety and security through networks or coalitions. Laws and international institutions have become catalysts for fostering coordination among states and distributed maritime forces and spreading the rule of law at sea, and as a consequence, the strategic, operational, and political “landscapes” of the oceans have decisively changed.
This narrative on the importance of international law at sea is at odds with much of the conventional wisdom that characterizes the oceans as an ungoverned legal vacuum.19 The global order of the oceans springs from the architecture of the international law of the sea and of the IMO, and the new maritime security regimes fall within those frameworks. The 1982 Law of the Sea Convention was the first—and remains the foremost—international instrument for realizing collaborative approaches to maritime security. Attempts in 1930, 1958, and 1960 at developing a widely accepted multilateral framework on oceans law had either ended in utter failure or achieved only modest gains. In contrast, UNCLOS contributes directly to international peace and security, by replacing abundant conflicting maritime claims with universally agreed limits on coastal-state sovereignty and jurisdiction. The treaty is anchored in a set of navigational regimes that establish common expectations, delineating the rights and duties of flag, port, and coastal states. Even though some state parties occasionally propose rules that evidence unorthodox misreadings of the convention—such as China’s bogus security claims in the East China and Yellow seas—UNCLOS has served as a stabilizing force, a framework that protects and promotes the principal American interest in freedom of the seas. In doing so the multilateral agreement, which now has more than 155 state parties, picked the international community out of what D. P. O’Connell once described as an “intellectual morass” in which competing opinions and views served as a substitute for law. As a result, the number of controversies in the oceans has declined.
But this will change as these initiatives continue to reconfigure sea power itself. Consequently it is not surprising (but unfortunate) that the Cooperative Strategy failed to promote international law of the sea as the organizing principle and principal goal of U.S. maritime strategy. This glaring omission has been noted by numerous friends and allies, who time and again reminded the United States of the centrality of international law in their responses to the original thousand-ship-navy concept. Writing separately, naval commanders from France, Ghana, India, Portugal, and Spain all made reference to the importance of international maritime law in their comments on the thousand-ship navy published in 2006 by the Proceedings of the U.S. Naval Institute.41 A year later, many of the same chiefs of service were asked to respond to Admiral Michael G. Mullen’s plan for a new U.S. maritime strategy. Once again, international law was a prominent feature of their replies; the leaders of the naval forces of Brazil, Peru, Portugal, Colombia, Uruguay, Lebanon, and Spain urged the United States to ensure that maritime security is rooted in multilateral legal frameworks.42 It is especially important that the vigorous expansion of maritime partnership integration propelled by international law be maintained. The maritime domain awareness provisions of the SOLAS Convention, the counterproliferation and counterterrorism elements of the SUA 2005 protocols, and PSI, with its informal nature, and Security Council action against piracy, constitute the greatest package of multilateral maritime-security commitments since the interwar period of the 1930s. The United States led each of these efforts, but there is a widespread perception that the American “brand” has suffered since and that the diplomatic influence of its friends and allies in Europe has diminished.43 Meanwhile, that of China and Russia is expanding. The upshot is a degree of doubt about the ability of the West to shape the future direction of international maritime law toward a shared vision of the rule of law at sea. This means that we should be prepared to make even greater investments in cooperation, and the development of international maritime law and institutions, to realize the goals of the Cooperative Strategy.
However, the melting of the Arctic ice cap is not a certainty. Although the Arctic may continue to grow warmer in the coming years,32 its climate variability-described as "decade long oscillations"33-indicates the warmer temperatures may not continue.34 In a nutshell, "predicting the future climate is risky."35 Despite the climate uncertainty, oil and gas exploration of the Arctic does not rely solely on the Arctic ice cap melting.36 In fact, a panel of experts convened by the United States Arctic Research Commission determined that "the exploration, development, production and transportation of petroleum in the Arctic will expand with or without climate change as prices continue to rise due to the decreasing rate of discovery of reserves elsewhere. Climate warming and reduction in ice cover will facilitate and perhaps accelerate the process."
Though the United States has not ratified UNCLOS, this does not mean that they are out of the running in the race for Arctic territory. Due to the lengthy CLCS review process, oil and gas drilling activity in the extended continental shelf regions by any country is likely a long way away.51 It also appears that the United States is not abandoning UNCLOS, and in "[p]rospects for the U.S. Senate to ratify the Convention on the Law of the Sea [continue to] improve."52 The stalled bill in the U.S. Senate has not aggrieved the energy industry, as "energy industry officials have made it clear to U.S. agencies that they are not interested in undertaking exploration and production beyond the 200-nautical-mile exclusive economic zone without a firm international legal framework recognizing any extended claims."53 However, the prospect of the United States joining the game may be even more distant because the CLCS is far from a "firm international legal framework."54 For now, the only certainty is that the United States must make major political progress by either ratifying the UNCLOS treaty or attempting to resolve any concerns regarding Arctic lands in another forum. Further, the United States must engage other nations in order to become a major player in the Arctic territorial battle.
In spite of these efforts to raise awareness of potential adverse environmental impacts, these concerns do not seem to be slowing the push for Arctic drilling and exploration.67 In fact, "several prominent [U.S.] environmental organizations, including the Natural Resources Defense Council and the Ocean Conservancy, formed an unlikely alliance with big oil and gas to support UNCLOS."68 This is because UNCLOS has provisions to help protect the Arctic environment.69 Thus, even though "pursuing oil exploration in the Arctic would threaten the region's fragile ecology,"70 environmental groups also see internationally organized territory as a way establishing a cohesive view that will prevent pollution in the Arctic.