UNCLOS and the Continental Shelf: A Response to Steven Groves

by John Noyes

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

My thanks again to Julian Ku for organizing this series on U.S. accession to the Law of the Sea Convention.  I write to respond to Mr. Groves’s contention, based on U.S. experience in the Gulf of Mexico, that U.S. accession is not needed to further the stability and security of claims to offshore oil and gas resources.  In another post, I respond to Professor Rabkin’s concerns about the third-party dispute settlement system of the LOS Convention.

Will Compulsory Dispute Settlement Sink the LOS Convention in the Senate?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington School of Law in Seattle.]

Let me again thank Opinio Juris for hosting this exchange of views on the Law of the Sea Convention and Julian for his timely efforts in facilitating the exchange.  The other four contributors each raise important considerations that warrant serious attention and critical assessment by the SFRC in the coming months. With Julian’s permission, I’d like to briefly respond to two points concerning the Convention’s ECS revenue sharing and CDS provisions, with particular attention to the latter.

Extended Continental Shelf Revenue Sharing: It has long been apparent that views differ on the requirement for revenue sharing for non-living natural resource extractions from the extended continental shelf (ECS) under Article 82 of the LOSC. For some, the requirement to share up to 7% of the revenues outweighs the Convention benefits.  In weighing the potential long-term cost to the U.S. of that revenue sharing provision (which, as Mr. Groves correctly notes, cannot now be accurately determined), I believe it’s important to view it in the historical context of the seaward march of continental shelf claims since 1945.  As coastal state claims expanded from 3 miles to the 100 fathom (600 ft) isobath under the statement accompanying the 1945 Truman Proclamation (an area Truman asserted comprised only 750,000 square miles—roughly one-fifth the size of the U.S. EEZ today), to the 200 meter isobath (or limits of exploitability) under the 1958 Convention on the Continental Shelf and to the present formula extending up to 350 miles seaward of the baseline or 100 miles seaward of the 2500 meter isobath, that expansion has come at the expense of the deep seabed beneath the high seas common to all states.  Whether 67 senators will conclude that sharing up to 7% of the revenue from ECS mineral extractions is too high a price to pay for the certainty provided by a binding decision of the Commission on the Limits of the Continental Shelf—particularly with respect to claims among the contiguous Arctic states—and a reasonable concession for extending the juridical shelf well beyond the original Truman declaration remains to be seen.

Compulsory Dispute Settlement:  Professor Rabkin has articulated several concerns regarding the Convention’s compulsory dispute settlement (CDS) provisions.  While I disagree with some of his views on the potential effect of an arbitration decision and question the fit of his ICC analogy to the LOSC, he is not alone in his concerns.  As with the ECS revenue sharing issue, the question remains how many senators are likely to agree to compulsory dispute settlement on LOSC issues.  How many will accept the burdens—and the benefits—of CDS if the other treaty benefits are significant?

I don’t claim any unique insight into how the senate will view the Convention’s CDS provisions. It might be useful, however, to examine the senate’s views on CDS requirements in other maritime treaties, which arguably provide a better analogy to the LOSC than the Rome Statute. This brief table (compiled somewhat hastily) might serve as a useful starting point.

 

TREATY

YEAR

FORUM FATE

Geneva LOS Conventions (High Seas, TTS/CZ, Continental Shelf and HS Fishing), Optional Protocol on Compulsory Dispute Settlement

1958

ICJ

Failed 2/3 Senate (49 for; 30 against)

Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Article VIII & Annex)

1969

Conciliation

Arbitration

Ratified

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation – “SUA” (Article 16; reservation to CDS permitted)

1988 and

2005 Protocol

Arbitration

ICJ

Ratified

Implementation Agreement on Straddling and Highly Migratory Fish Stocks (Article 30)

1995

Generally follows LOSC Part XV

Ratified

Protocol to London Dumping Convention (Article 16)

1996

Arbitration or      LOSC Pt XV

Pending in SFRC since 2007

Highly Migratory Fish Stocks of Western/Central Pacific (Article 30)

2000

Follows the SFS Agreement

Ratified

 

With respect to the 1988 SUA Convention, in its advice and consent to the SUA Convention’s 2005 Protocol, I believe the senate attached a reservation rejecting CDS (see S. Exec. Rept. 110-25).

Two other data points to be considered relate to the International Court of Justice. As this audience knows, in 1985 the U.S. revoked its 1946 optional clause declaration filed under Article 36(2) of the Statute of the ICJ (subject to the Connally and Vandenberg Reservations).  And on March 7, 2005, shortly after the ICJ issued its judgment in the Avena case, the U.S. revoked its consent to CDS under the Convention on Consular Relations (by my last count, only 48 of the 178 CCR parties have accepted CDS).  It should be noted that both actions were taken by the president, not the senate.  It should also be noted that, whatever the views on the ICJ, the draft SFRC declarations in 2004 and 2007 recommend general or special arbitration, not the ICJ, for disputes under the LOSC.

With respect to the argument that the ITLOS might insert itself into a WMD-smuggling terrorist interdiction action by the US by invoking the Convention’s “prompt release” provisions for vessels and crews, I believe it’s clear that Article 292 only applies when the detaining state has not complied with a provision in the Convention requiring prompt release.  Those provisions are found in the EEZ living marine resources and Marine Environmental Protection provisions (Articles 73(2), 220(6),(7) and 226(1)(b)), where the coastal state is limited to “monetary penalties” (Articles 73(3) and 230) and the enforcing state is entitled to require the detained vessel to post reasonable security.  The 1997 ITLOS decision in the M/V Saiga case is not to the contrary.  While the tribunal majority briefly opined that it seemed “strange” that a prompt release action might not be available in cases where detention of the vessel is not permitted by the Convention (para. 53), it ultimately based its decision on Article 73, not an expansive view of Article 292.  I read Article 113(1) of the 2009 Rules of the Tribunal as confirming this limited scope.

Comparing senate actions spanning more than 50 years and across different maritime subjects is admittedly of only limited utility. I also acknowledge that I have not directly addressed US and senate views on compulsory arbitration as an alternative to adjudication (perhaps other OJ readers have done research into senate attitudes toward international arbitration on maritime law issues).  The Minority Views in the SFRC’s 2007 report on the Convention (S. Exec. Rept. 110–9, at 26) reflect a concern with how the fifth arbitrator will be chosen if the disputing parties cannot agree (after they each choose their two arbitrators).  The Minority Views also singled out the ITLOS decision on Ireland’s request for provisional measures in the MOX Plant case (pending constitution of the Annex VII arbitration panel) and argue that, in the Minority’s view, “There is almost no limit to what any smart international lawyer could do with these pollution provisions.”

In the end, I offer no prediction on how the senators of the 112th Congress will decide.  I do, however, agree with Julian in his opening assessment that the LOSC “has become a symbol in the United States of the promise and perils of joining a global governance regime” and echo his hope that we can “improve upon what has so far been a very disappointing public debate on this topic.”  The views presented by the other four distinguished and thoughtful participants Julian recruited for this on-line debate are certainly a good start.

UNCLOS: A Response to Professors Kraska, Noyes, and Allen

by Steven Groves

[Steven Groves is a Bernard and Barbara Lomas Fellow at The Heritage Foundation in Washington D.C.]

Many thanks to Julian Ku for inviting me to participate in this UNCLOS debate on one of my favorite websites.

There is much I agree with in the posts of Professors Kraska, Noyes, and Allen.

Professor Kraska correctly emphasizes the victory achieved by U.S. negotiators at UNCLOS III in regard to codifying navigational regimes, particular the regime of transit passage through international straits.  Transit passage, along with archipelagic sea-lanes passage and the refinement of the “innocent passage” regime through territorial seas, are indeed the crown jewels of the Convention.  What must be understood, however, is that the United States need not accede to the Convention in order to benefit from its great successes at UNCLOS III.  The navigational provisions reflect customary international law, binding on all nations regardless of their membership or non-membership in UNCLOS.  In Professor Kraska’s words, “the navigational provisions are set in stone, and all of the benefits inure to maritime power.”  I could not agree more.

I also agree with Professor Noyes that accession would allow the United States to submit claims regarding the U.S. “extended continental shelf” (ECS) beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf (CLCS) in New York.  Where we may part ways is whether such submissions are necessary either to (a) achieve international recognition of the U.S. ECS, or (b) foster development of the U.S. ECS by oil companies.  Indeed, the United States has successfully delimited key areas of its ECS in the Gulf of Mexico, the Bering Sea, and the Arctic Ocean via bilateral treaties with Mexico and Russia.  The CLCS procedure would arguably result in Uruguay and Uganda’s recognition of the limits of the U.S. ECS, but I doubt that it’s necessary to attain the recognition of those countries (or any other country with whom the U.S. does not share a continental shelf border) in order to develop the resources of the U.S. ECS.

U.S. and foreign oil companies appear to agree, since they are spending millions of dollars for leases on areas of the U.S. ECS in the Gulf of Mexico in an area called the “western gap.” The U.S.has offered ECS blocks located on the western gap in 19 lease sales held between August 2001 and March 2010. In connection with those sales, seven U.S.companies (Burlington, Chevron, Devon Energy, Hess, Mariner Energy, NARCA Corporation, and Texaco) submitted bids to lease blocks in the western gap. Five foreign companies—BP, Eni Petroleum (Italy), Maersk Oil (Denmark), Petrobras (Brazil), and Total (France)—also bid on western gap ECS blocks during those sales. The U.S. Treasury received more than $47 million in bids in connection with lease sales on those blocks.

Of the approximate 320 blocks located in whole or in part on the western gap ECS, 65 (approximately 20 percent) are currently held under active leases by nine U.S. and foreign oil exploration companies, including BP, Chevron, Cobalt International Energy, Eni, Maersk, Petrobras, Total, Statoil (Norway), and Union Oil.

Regarding the transfer of hydrocarbon royalty revenue pursuant to Article 82, we are probably going to have to agree to disagree, but the central fact is this: There has been no comprehensive study to determine the value of the oil and natural gas that lies beneath the U.S. ECS, which in total is reportedly twice the size of California. How can we be expected to conduct a proper assessment of the financial impact of U.S. accession to UNCLOS if the value of the natural resources on the U.S. ECS is unknown? If the value of U.S.hydrocarbons on the ECS is unknown then so too is the amount of royalty revenue that the U.S.will ultimately forgo if it accedes to the Convention.  Accession to UNCLOS therefore amounts to an open-ended international commitment to transfer an indefinite sum of royalty revenue (indefinite, but likely in the tens if not hundreds of billions of dollars) to the International Seabed Authority for redistribution to developing and landlocked nations.

Professor Allen’s post reflects, I believe, the current state of the debate—one school of thought that maintains the U.S. doesn’t need UNCLOS so it should avoid the potential costs of accession, and another school that wants to pocket the Convention’s benefits and believes that the costs are either nonexistent or de minimis.  For many years, the bulk of the testimony heard in the Senate and the vast majority of the ink spilled in law review articles and op-ed pages extolled only the virtues of UNCLOS without even a passing reference to the potential costs.  Over the past several years, however, more and more discussion of the potential costs—real or imagined—has occurred.

My view is that there are at least two significant costs associated with accession:

UNCLOS and The Risks of Compulsory Arbitration

by Jeremy Rabkin

[Jeremy Rabkin is Professor of Law at George Mason University School of Law.]

I entirely accept what James Kraska says about the benefits of the navigation rules in UNCLOS.  But when Kraska and others say these rules are favorable, they mean the UNCLOS rules – as American officials would interpret them.  Unfortunately, UNCLOS doesn’t leave it up to American officials to interpret these rules.  When there are disputes, the treaty provides that they will be settled by compulsory arbitration. So we need to think about the ways international arbitration panels might interpret – or as it may be, twist and distort – these rules.  Projecting what international arbitrators will do in future disputes is as much a question of international politics as of settled treaty law.   It’s not enough to say that legal analysts for the Navy (or the Coast Guard) could interpret them in reasonable ways.  They won’t be in charge of the arbitration panels. To grasp the point, think for a moment about the International Criminal Court.   The crimes set out in the Rome Statute are taken, word for word, from treaties which the United States has already ratified or which it already regards (for the most part) as restatements of customary international law.   The ICC is also bound by procedural rules and a regulation on Elements of Crimes, which American military lawyers say addresses most American concerns about potential prosecutorial abuses.  Nonetheless, no president, no presidential candidate, no secretary of state has recommended that the U.S. join the ICC.   We don’t so much dislike the substantive provisions of the ICC’s code.  We just don’t trust an international tribunal to have the last word in judging American military conduct.

Stay Tuned for Day Two of the UNCLOS Ratification Debate

by Julian Ku

I wanted to thank Professors Allen, Kraska, and Noyes for their contributions to our discussion on US ratification of UNCLOS. I’ve learned a great deal from their posts and I hope our readers have as well. I wanted to remind our readers, however, that we will hear from two leading scholars tomorrow — Jeremy Rabkin and Steven Groves — who will offer reasons why the U.S. should not ratify UNCLOS.  Indeed, Steve was busy today testifying in the afternoon session of the Senate Foreign Relations Committee’s hearing on the Law of the Sea.  His written testimony, along with those of Donald Rumsfeld, John Negroponte, and John Bellinger, can be found here.  And with no disrespect to Messrs Rumsfeld and Negroponte, the most testimony from the hearing worth reading is that provided by Steve and John Bellinger.  We look forward to hearing from Steve and Jeremy tomorrow.

Ocean Resources and U.S. Acceptance of the LOS Convention

by John Noyes

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

The U.S. Senate Foreign Relations Committee is currently holding hearings on U.S. acceptance of the 1982 Convention on the Law of the Sea, as modified by the 1994 Part XI Implementation Agreement (the “LOS Convention”).  The Committee favorably reported the LOS Convention in 2004 and again in 2007, but the full Senate did not vote then.  162 parties, including all major powers except the United States, have accepted the Convention.

The hearings take place in a highly partisan political environment.  Yet U.S. acceptance of the LOS Convention is receiving much high-level support from across the political spectrum.  Military leaders support U.S. accession, for reasons James Kraska explores in his post.  Other supporters include:  U.S. oil and gas companies; U.S. telecommunications companies with undersea cables; U.S. shipping companies; Lockheed Martin, the lone U.S. company still holding U.S. licenses for deep seabed hard mineral exploration; environmental organizations; past U.S. State Department Legal Advisers; former Republican Secretaries of State Henry Kissinger, George Shultz, James Baker III, Colin Powell, and Condoleeza Rice; and Presidents George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama.

I appreciate Julian Ku’s invitation to discuss the LOS Convention’s complex resources provisions.  Let me introduce some basics concerning the exclusive economic zone (EEZ) and fisheries, the continental shelf and oil and gas resources, and seabed mineral resources beyond the limits of national jurisdiction, and explore why accepting the Convention would promote commonly perceived U.S. interests.

First, the Convention allows coastal states to regulate fisheries in the EEZ, extending up to 200 nautical miles from baselines, where ninety per cent of commercial fish are found.  In the EEZ coastal states may exclude foreign fishing or license it on their own terms and conditions.  (Other rules, most developed in accordance with the 1995 U.N. Fish Stocks Agreement that the United States ratified in 1996 and through law other than the LOS Convention, govern fish stocks that range beyond the EEZ.)  The U.S. coastal fishing industry has benefited enormously from EEZ fishing rights, because the United States has the world’s largest EEZ.  Existing U.S. law already tracks the Convention’s EEZ fishing provisions, which are not now controversial.  But if the basic concept of an EEZ and the Convention’s EEZ fisheries provisions now seem grounded in customary international law, other EEZ Convention provisions are not so secure.  EEZ-related arguments favoring U.S. accession focus on Article 58’s guarantee of freedom of navigation and overflight for all states in EEZs.  U.S. officials document a “resurgence of creeping jurisdiction” by coastal states within their EEZs that threatens U.S. navigation.  U.S. acceptance of the Convention will allow the United States to affirm EEZ and other navigational rights as treaty law.  U.S. acceptance may well decrease the need for this country to spend dollars, use force or political capital, or make concessions on other fronts to try to assert those rights as a matter of customary international law or new bilateral treaty law.

Using UNCLOS as a Force Multiplier for American Power

by James Kraska

[Dr. James Kraska, Commander, U.S. Navy, is the Howard S. Levie Chair of Operational Law at the U.S. Naval War College]

Thanks for the opportunity to talk a bit about the major national security and strategic interests of the United States in the UN Convention on the Law of the Sea (UNCLOS). It is also a pleasure to exchange thoughts on the subject, and I respect Jeremy Rabkin’s work on sovereignty and international law—although I expect we have some difference of view on the law of the sea. I believe UNCLOS is a key enabler of America’s strategic position in the world and an essential force multiplier for our military security and economic prosperity.

The International Law of the Sea: A Treaty for Thee; Customary Law for Me?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington School of Law in Seattle.]

I would like to begin by thanking Opinio Juris for hosting this timely and important debate on the 1982 Law of the Sea Convention (LOSC) and Julian Ku in particular for inviting me to participate.  My small contribution begins with two caveats.  First, this brief post is by no means a comprehensive examination of the Convention, but rather is limited to the commonly-heard assertion that customary law adequately protects U.S. interests, rendering accession to the Convention unnecessary. Second, having closely followed the Convention for more than three decades and in particular the 2004 and 2007 SFRC hearings and the debates they provoked within and beyond the Senate, I have come to believe there are three identifiable audiences out there.  There are the true believers within both the proponent and opponent camps.  Whether by predisposition, deference to the judgment of another or a prior examination of the Convention, these two groups have already irrevocably committed to their positions.  It is the third group, comprising those who will support ratification of treaties that on balance serve national interests and reject those that fail to do so, and are still uncertain where the LOS Convention falls, that I hope to reach.

The arguments in favor of ratification (technically accession) are many and mostly well-informed, though occasionally exaggerated. Although some of the arguments against ratification appear to reflect what I believe is a misunderstanding of the text of the Convention or excessive skepticism regarding the adequacy or efficacy of the 1994 Implementation Agreement in remedying the U.S. objections to the original 1982 Part XI provisions for deep seabed mining, it would be wrong to dismiss all of the objections as unfounded or, as some have done, launch personal attacks against the opponents.  What some might consider bothersome drawbacks or minor flaws in the Convention that the historical record demonstrates were a necessary, if not entirely welcome, quid pro quo to obtain the convention’s benefits, the opponents might reasonably condemn as fatal to the ratification decision, no matter how attractive the quids might be.

Should the U.S. Ratify the UN Convention on the Law of the Sea? A Debate and Discussion

by Julian Ku

From the first class I ever took on international law, I’ve heard (mostly negative) references to the U.S. refusal to ratify the UN Convention on the Law of the Sea.  I’ve heard again and again throughout my studies about how the U.S. was shirking its global responsibilities as well as how the U.S. was hurting its own national interests by failing to join UNCLOS.  Indeed, the US reluctance to ratify UNCLOS has become a reliable talking point to raise when international law scholars are decrying the evils of American exceptionalism.  Even within the U.S. debate, the critics of US ratification have been derided as extreme and not entirely rational (as Secretary Clinton’s reference to UNCLOS opponents as the “black helicopter” crowd” reminds us).

As readers of this blog are aware, I have more than a casual interest in UNCLOS, not just for its substantive impact on international relations, but also because it has become a symbol in the United States of the promise and perils of joining a global governance regime. (see my posts here and here for a taste.) The current US debate over UNCLOS, which takes place in competing op-eds, is far from satisfactory. Proponents are derided as one-worlders seeking to destroy American sovereignty.  Critics are derided as right-wing nutcases.

In my view, UNCLOS is a tough call. Like many treaties, there are good parts and bad parts (from the point of view of the United States).  But whether the good outweighs the bad is something I am not really sure of.

I am far from an UNCLOS expert, however, so I have asked several experts on UNCLOS to debate US ratification on Opinio Juris over the next two days.    We’ll begin today with three posts from thoughtful proponents of US ratification:  Craig Allen, James Kraska, and John Noyes.  Professors Allen and Kraska will focus on the navigational rights question, and Professor Noyes will discuss the effect of UNCLOS’ rules for the exploitation of natural resources.  On Friday, we will give two sharp and effective critics of US ratification — Jeremy Rabkin and Steven Groves —  their chance to respond.  After that, I will open it up to allow both sides to post response to each other.

My goal here is to help readers understand what issues are behind the US debate over UNCLOS ratification, and to improve upon what has so far been a very disappointing public debate on this topic.