Not exactly, especially since the “blockade”, is based on Argentina’s claim to sovereignty over the Falkland Islands.  Still, depending on where the vessels were “boarded”, (e.g. in the alleged EEZ?), there might be some problem here. In any event, something like economic harassment seems to be going on.

Argentina looks like it is going to do a full court press, both diplomatically and otherwise, to pressure the UK into talks on the Falklands’ future. And I think it has a good chance of working.

U.S. opponents of UNCLOS, whom I think have a number of quite sensible points, do need to explain how the U.S. is going to operate effectively in a world where all other major seafaring nations belong to the UNCLOS system.  And they have offered decent arguments.  Customary international law already guarantees navigational rights. Bilateral treaties, or even unilateral declarations, can establish U.S. sovereignty over its extended continental shelf.  But what about deep seabed mining that occurs outside the sovereignty of any nation? Under UNCLOS, a nation must make an application to the Authority for rights to develop such deep seabeds.  It appears that China, for instance, has done just that in its aggressive move to develop seabed mining for certain metals and minerals on the Pacific seabed.

China plans an ultradeep dive by a manned submersible beneath the Pacific that would propel it past the U.S. in a race to explore potentially vast mineral resources in the deepest parts of the world’s oceans.

…

The Pacific test site was selected because the state-run China Ocean Mineral Resources Research and Development Association, also known as Comra, signed a contract in 2001 with the International Seabed Authority, a United Nations body that oversees mining in international waters.

The 15-year contract initially allowed Comra to explore 150,000 square kilometers of seabed for polymetallic nodules—small rocks containing metal ore—although the area was reduced to 75,000 square kilometers after eight years.

ISA, which is based in Jamaica, is meeting to discuss, among other things, unprecedented applications from China and Russia to explore a more recently discovered mineral source, called polymetallic sulphides.

Would a U.S.-based company feel comfortable investing in a project for which it could not establish safe legal title? I think, essentially, opponents of UNCLOS will have to concede that U.S. companies in this situation would have to rely on foreign partners located in UNCLOS member-states, to establish title for such projects.  This may not be a big deal, but it is one clear advantage of UNCLOS, it seems to me, that may or may not outweigh all the other disadvantages.

Having just returned from Asia, which is awash in disputes over territorial sea rights and exclusive economic zones,  the U.S. domestic debate over ratification of the Law of the Sea Convention seems almost quaint.  Unlike pretty much every country in East Asia, the U.S. does not have any serious boundary or other kind of dispute that is likely to be swept up into the Law of the Sea Convention (OK, there is that whole Northwest Passage thing with Canada, but it’s Canada!). So the domestic battle does seem a bit strange, given that the U.S. has relatively less at stake than many other countries that have submitted themselves to UNCLOS.

There is also a depressingly predictable debate about UNCLOS every time ratification is considered by the Senate.  International law experts insist that it is absolutely crucial and necessary that the U.S. join, if for no other reason than that every other major nation in the world has joined.  And critics insist that it is a horrible treaty that will subordinate the U.S. to  corrupt and/or unaccountable international organizations.

I am a bit in the middle on this because I happen to think both sides are actually speaking some truth on UNCLOS.  It really is amazing that the U.S., with one of the world’s longest continental shelf and the world’s largest sea power is not a member of UNCLOS, which counts 161 states as members including our past and future seapower rivals Russia and China.  And because everyone else that matters has joined, it is harder for the U.S. to advance its interests through bilateral deals (see the excellent comments to this post from last year for further explanation of this point).

On the other hand, UNCLOS creates an unwieldy governing authority and structure that will, over time, become unaccountable and no doubt inimical to key U.S. interests (see here for the Goldsmith/Rabkin critique of the treaty’s effect on U.S. counterterrorism policy).  Effectively paying a “tax” to the UNCLOS authority for certain drilling is of questionable value.  And at least one part of UNCLOS is, in my humble opinion, unconstitutional because it essentially gives supreme and self-executing effect to judgments of the International Tribunal for the Law of the Sea’s Seabed Disputes Chamber (See Annex VI, Art. 39).

So a tough call with good arguments on both sides.  But in the U.S. system, a “tie” goes to the treaty opponents, since the two-thirds of the Senate must give its approval.  Let me go way out on a limb here and say that in this political environment, there is zero chance that UNCLOS will come anywhere near the 67 votes it will need to pass.  President Obama is going to have to wait for his second term (now there’s an unpleasant thought) before UNCLOS gets close to passage.

Here is another persuasive account of why the U.S. is disadvantaged by not joining the UN Convention on the Law of the Sea.  The case is fairly simple: There is a lot of oil and natural gas up there, and the U.S. can’t negotiate with other countries to divvy it up until it signs on to UNCLOS.

The 5.5 million-square-mile area north of the Arctic Circle — part of the U.S., Russia, Canada, Denmark (which owns Greenland), Finland, Norway, Iceland and Sweden — contains up to 25 percent of the Earth’s undiscovered oil and gas reserves, according to the U.S. Geological Survey. . . .

But to remove those resources you have to own them, and nations are now scrambling to claim vast new areas of sea bottom. They can do so by proving them to be extensions of their continental shelves. In summer, U.S., Russian, Canadian, and Danish scientists aboard icebreakers conduct studies to support claims submitted to a U.N. commission. In theory, the U.S. could gain an undersea region as big as California.

That’s the good news, but the bad news is that the United States is last in the claims race. The U.N. Commission on the Limits of the Continental Shelf has begun examining claims from Russia and Norway, which could be granted before the U.S. formally joins the process. Although the U.S. is gathering information for a claim, it cannot be submitted — nor can the U.S. have a say in the claims of other nations — until the government signs an international treaty. The agreement under which the apportionment of riches will go forward — the 1982 Law of the Sea Convention – lays out a comprehensive set of rules governing ocean issues, including protection of marine environments. All Arctic nations except the U.S. have signed. “If this were a ball game,” one Coast Guard admiral told me, “the U.S. wouldn’t be on the field or even in the stadium.”

That’s a bit of an overstatement, but this review of Michael Byers’ latest book: Who Owns the Arctic: Understanding Sovereignty Disputes in the North, reminds me of the surprising legal positions taken by Russia, Canada, and the United States over the legal status of the Northwest Passage.

It is ironic that while Russia supports Canada’s claim to the Northwest Passage, the United States opposes it. With the recent disappearance of multi-year ice, the Passage (or Passages, for there are several) gives access to shipping through the Canadian archipelago of 19,000 islands that lie scattered in a huge pyramid from Iqaluit in the east to the Beaufort Sea in the west, with its apex at the northern tip of Ellesmere Island.

It is also ironic that Canada is in the position of making aggressive claims for territorial sovereignty, while the U.S. is all of a sudden the guardian of the international community’s interest in keeping the seas free.  And it is ironic that Byers, no sovereigntist, is a sharp critic of Canada’s failure to more aggressively assert its territorial sovereignty.

Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.

Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted).  But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.

Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians.  And he goes on:

As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.

Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case.  And even if they somehow win, there is very little chance of Japan complying with the ICJ order.

I had almost forgotten about this ongoing dispute between Australia and Japan over whaling, which has been going on for years (and which I first noted on this blog way back in 2005).  The Australian Prime Minister warned Japan yesterday that if whaling doesn’t stop by November, Australia will take Japan to court, either the ICJ or the International Tribunal for the Law of the Sea.  Australia seems ready to go. It has its evidence lined up and appears to have James Crawford on board to argue its case before either the ITLOS or the ICJ.  I wouldn’t hold my breath on a quick decision on this, but it would be an interesting case nonetheless. As far as I know, Japan has never faced a case in the ICJ. I wonder what its reaction would be.