Sovereignty
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Proponents of the Convention acknowledge the far-reaching political and legal ramifications of U.S. adherence to the treaty. University of Virginia School of Law Professor John Norton Moore, a supporter of the Convention who testified before the Senate Foreign Relations Committee on October 14, 2003, stated that he sees it as a means for fostering the rule of law in international affairs. In fact, he states that adherence to the Convention is “one of the most important law-defining international conventions of the Twentieth Century.”
This is quite an assertion. In fact, it is the most troubling aspect of the Convention because the conduct of international relations for centuries has been a more a political than a legal process. Unacknowledged in the language about fostering the rule of law in international relations is the reality that in this particular case it entails subordinating the powers of the participating states to the dictates of an international authority. When it comes to the essential powers for the conduct of international relations, the use of force, and the exercise of diplomacy, they are not readily divisible but they are readily transferable. The Convention is a vehicle for transferring these essential powers from the participating states to the international authority established by the treaty itself. It represents the establishment of the rule of law over sovereign states more than it is establishing a rule of law made by them.
The Law of the Sea Convention allows countries to claim a continental shelf beyond their 200-nautical-mile EEZ, to a line 350 nautical miles from their coastal baselines, if they can establish that their continental shelf meets the complicated formula found in Article 76. This provision may be of substantial importance in the Arctic, now that the ice in that region is breaking up, as exemplified by Russia’s planting of a flag on the sea floor of the North Pole on August 2, 2007. Russia was not claiming the North Pole, but was exploring the seabed to see whether it could justify a claim to an extended continental shelf under Article 76. The United States may also be able to make an extended continental shelf claim in the Arctic region, perhaps claiming ‘‘more than 200,000 square miles of additional undersea territories,’’41 but its ability to make such a claim credibly will be substantially weakened if it remains outside the Law of the Sea Convention.42
In contrast, quite to the contrary of arguments advanced against the Convention by some opponents, the Convention does not remove United States sovereignty or sovereign rights over the resources of the deep seabed. Neither the United States nor any other Nation has now, or has ever had, sovereignty over the mineral resources beyond the continental margins. In fact, it has been a consistent position of the United States and other developed nations to oppose any extension of national sovereignty into this area. Indeed, it is precisely because no nation in the world controls the mineral resources of the ocean basins that the Convention has created a narrowly limited international mechanism to permit mining of these resources. For without such a regime, industry simply cannot obtain the legal rights necessary for the over billion dollar cost of a deep seabed mining operation.