The Deep-Sea Reasons for the Accession of the United States to the 1982 Convention on the Law of the Sea

By Katherine Liljestrand, Staff Contributor 

The 1982 Convention on the Law of the Sea is the world’s foremost international treaty with respect to the legal order for the global seas and oceans.[1] While most environmental issues covered by the United Nations Convention on the Law of the Sea (UNCLOS) have already been accepted by the United States as customary international law[2], there are two main environmental reasons why the United States should and needs to accede to the Convention with proper haste. Both of these environmental issues deal with the seabed and mineral resources in the deep sea. And while the Convention has already been signed by and transmitted to Congress by President Bill Clinton as of July of 1994[3], Congress has yet to vote on accession to the treaty.[4] The current Congress should strongly support the ascendance of the United States to UNCLOS and vote accordingly, as ascendance would put the United States in a more favorable position to influence and take part in both the present and the future of coastal shelf oil drilling and deep sea resource mining.

The two main mechanisms of UNCLOS that deal with deep seabed issues are the Commission on the Limits of the Continental Shelf[5] and the Council of the International Seabed Authority.[6] While the United States remains a non-party to UNCLOS, access to these two bodies – and, subsequently, to the subject jurisdictions they cover – is denied.

Firstly, the Commission on the Limits of the Continental Shelf[7] is the foremost international body which “consider[s] the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with article 76 . . . “[8] What this means is the Commission determines whether or not a country is able to claim its outer continental shelf (OCS) extends past the 200 nautical mile Exclusive Economic Zone (EEZ) thereby expanding its territorial rights to drill. As the United States is not currently a member of UNCLOS, the United States cannot currently claim any drilling rights over any potentially-extended continental shelf.[9]  Also, as the United States is not on the Commission, the United States cannot nominate or elect experts to a seat on the Commission and thus has no say in the establishment of outer continental shelves for other countries[10], as when Russia submitted an overly expansive claim to its outer continental shelf.[11] The current administration seems to be moving forward with all hands on deck in regards to offshore oil drilling[12], so acceding to UNCLOS and nominating experts to the Commission could further those efforts. The United States needs to be on the Commission because its voice needs to be heard for the present and future of both our own extended continental shelf and the extended continental shelves of other countries.

The second important environmentally-related mechanism the United States is missing out on is the Council of the International Seabed Authority and its unique process.[13] The International Seabed Authority is the primary body that deals with the Area.[14] The Area, as defined in Article I of UNCLOS, includes the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction.[15] The International Seabed Authority is the international body that regulates and controls all mineral-related activities in the Area, and only parties to UNCLOS can sit on the Council.[16] The United States has a reserved, permanent spot on the Council due to having the largest economy at the time of UNCLOS’ ratification but is unable to take that spot unless it becomes a party to UNCLOS.[17] As of currently, the United States is missing out on partaking in the Authority’s defining of the future of seabed mineral mining.

The International Seabed Authority issues permits to private parties – mainly companies – for the exploitation and mining of deep seabed minerals[18], such as the highly profitable polymetallic manganese nodules. It is the International Seabed Authority that determines how these permits are distributed and any restrictions on those with the permits.[19] In order for a private company to get a permit for deep sea mining, the company must be sponsored by a country to begin the application process with the International Seabed Authority. Thus, United States companies have no access to this process or the permits for deep sea mining. This hurts United States-based companies who could otherwise feasibly take part in the race for claiming highly valuable seabed minerals through excavation.

While the United States did not deal with some of the original provisions – chiefly Article XI[20] – in the original Convention on Law of the Sea, these provisions were changed in 1994 through the Agreement on Implementation. The changes in the treaty were to the satisfaction of the United States, as President Clinton signed and transmitted the treaty to Congress as soon as the provisions in question were changed.[21] Congress should no longer delay voting in favor of the United States acceding to the United Nations Convention on the Law of the Sea. Today, the magnitude of the environmental issues relating to coastal shelf drilling and deep sea mining is great enough that it is imperative for Congress to actually initiate a vote and formally adopt the United Nations Convention on the Law of the Sea.

 

[1] See United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

[2] Glenn M. Sulmasy and Chris Tribolet, The United Nations Convention on the Law of the Sea, National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers (American Bar Association) 1 (2012).

[3] The President’s Transmittal Document To the Senate, Treaty Doc. 103-39 (Oct. 7, 1994).

[4] Scott G. Borgerson, The National Interest and the Law of the Sea: Council Special Report No. 46 12 (Council on Foreign Relations, 2009).

[5] United Nations Convention on the Law of the Sea, supra note 1, at Annex II, art. 1.

[6] United Nations Convention on the Law of the Sea, supra note 1, at art. 150.

[7] United Nations Convention on the Law of the Sea, supra note 1, at Annex II, art. 1.

[8] United Nations: Oceans & Law of the Sea, Commission on the Limits of the Continental Shelf (CLCS) Purpose, functions, and sessions, http://www.un.org/Depts/los/clcs_new/commission_purpose.htm (last accessed Jan. 30, 2018).

[9] United Nations Convention on the Law of the Sea, supra note 1, at Annex XI, art. 4.

[10] United Nations Convention on the Law of the Sea, supra note 1, at Annex XI, art. 5.

[11] Borgerson, supra note 4, at 28.

[12] See Notice of Availability of the 2019-2024 Draft Proposed Outer Continental Shelf Oil and Gas Leasing Program and Notice of Intent to Prepare a Programmatic Environmental Impact Statement, 83 C.F.R. 829 (2017).

[13] United Nations Convention on the Law of the Sea, supra note 1, at art. 150.

[14] Id.

[15] United Nations Convention on the Law of the Sea, supra note 1, at art. 1(1).

[16] United Nations Convention on the Law of the Sea, supra note 1, at art. 150.

[17] Borgerson, supra note 4, at 29.

[18] United Nations Convention on the Law of the Sea, supra note 1, at art. 147.

[19] Id.

[20] United Nations Convention on the Law of the Sea, supra note 1, at Annex XI.

[21] The President’s Transmittal Document To the Senate, Treaty Doc. 103-39, October 7, 1994.

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