Law of the Sea

Law Of The Sea

The United States Congress has kept the United NationsÂ’s Law of the Sea Treaty bottled up in committee for 30 years. In 2011, a rush by nations to claim oil rights under the Arctic Sea was quickening debate on treaty accession.

United States Senator Lee, cofounder of the Senate’s Tea Party Caucus, hammered his opposition to the 1982 U.N. Convention on the Law of the Sea (UNCLOS III) – known to its critics as the Law of the Sea Treaty, or LOST. Today its signatories include 157 states and the European Commission. Among the eight Arctic states, only the United States – with its Alaskan North Slope – is not a member.

President Ronald Reagan was the first to denounce the treaty, and since then opponents in the Senate Foreign Relations Committee – most notably its former chairman, the late Senator Jesse Helms of North Carolina – have blocked a floor vote on treaty accession.

Recalling his days as a congressional aide, Lee told the Heritage Foundation crowd, “I vividly remember listening on the car radio as [Senator Helms] addressed the UN General Assembly. … I was pumping my fist in the air while he spoke of ‘American exceptionalism’ and the need for America to retain her sovereignty.”

Those two principles – American exceptionalism and sovereignty – were Lee’s themes as he ticked through a list of problems with UNCLOS, echoing a Heritage Foundation report published in August. The fundamental problem, he said, is the treaty’s conceptual framework, which deems mineral resources that lie outside of exclusive economic zones to be “the common heritage of mankind.” If oil, gas, or mineral resources in those areas are mined, a percentage of the proceeds – after a five-year grace period – would be shared with member nations. “One man’s sharing,” Lee said, “is another man’s socialism.”

Despite congressional inaction, UNCLOS functions as the basis for customary international law regarding environmental protection and economic development on the high seas. Territorial and natural resources disputes are resolved by its three tribunals, one in New York City; the other two in Hamburg, Germany, and Kingston, Jamaica.

But submitting to their authority “puts the United States of America in what I refer to affectionately as a ‘mother-may-I’ posture,” Lee said. “We would have … to seek permission in advance to engage in mineral extraction activities that today we undertake just because we have the audacity to be a sovereign nation – an exceptional sovereign nation with unsurpassed and unprecedented political, economic, and military power.”

Since Reagan rejected UNCLOS, the treaty has been endorsed by every succeeding president. Bill Clinton pushed through amendments to the treaty in 1994, and George W. Bush made accession a priority in 2007 – both efforts to no avail. During the 2008 presidential campaign, both Barack Obama and John McCain endorsed UNCLOS. It has long been supported by the U.S. Navy and by the American oil and gas industry. And still, it sits in committee.

“Obama could get it through, but it would take a lot of effort and it’s too close to the 2012 election,” says David D. Caron, a law professor at UC Berkeley and cochairman of its Miller Institute for Global Challenges and the Law. “It’s not about the treaty – it’s about the U.S. Senate.”

The Senate, however, can’t halt the rush for undersea Arctic resources. In August 2007 a Russian submersible literally planted a flag on the seabed of the North Pole, claiming it as Russian territory. On the same day, Canada launched military exercises nearby to assert its own jurisdiction.

“You can’t go around the world these days dropping a flag somewhere,” stated Peter MacKay, Canada’s former minister of foreign affairs. “This isn’t the 14th or 15th century.”

“It was amazing how quickly the other Arctic nations responded,” recalls Angelle C. Smith, an associate at Covington & Burling in Washington, D.C., who wrote “Frozen Assets,” an article on claims to Arctic mineral rights, published in 2010 by the George Washington International Law Review.

But as Smith points out, an UNCLOS tribunal’s “final and binding” recommendations can’t prejudice boundary disputes in other forums – and all the nations in the Arctic Circle have opposite or adjacent coasts. The question of who owns the North Pole has yet to be resolved.

Since the United States doesn’t have access to the tribunals, its options for resolving disputes in the Arctic are limited. One alternative is the International Court of Justice (ICJ), established by a treaty signed by the U.S. but also not ratified by Congress. However, the Reagan administration withdrew its consent to ICJ jurisdiction in the 1980s because of an adverse ruling over U.S. mining of Nicaraguan harbors. Today, Smith says, this country submits to ICJ jurisdiction only on a case-by-case basis – and even then, the U.S. Supreme Court does not view its decisions as binding on U.S. state courts (Medellin v. Texas, 552 U.S. 491, 508 (2008)).

“There really isn’t a dispute resolution regime that’s applicable,” says Michael D. Nolan, a partner at Milbank, Tweed, Hadley & McCloy in Washington, D.C., who represents clients in international treaty arbitrations. The UN’s international trade law commission provides a framework for disputes, he says, “but the parties would have to consent to jurisdiction – it’s not compulsory.”

Nevertheless, conflicts over commercial drilling leases in the Arctic Ocean are arising on a pace with the melting of the ice cap. “Canada and the United States have a diplomatic dispute over a triangle of territory in the Beaufort Sea,” says UC Berkeley’s Caron. “Canada is a signatory to UNCLOS and says its national boundary follows a line of longitude and is governed by the treaty. The U.S. argues that the boundary is perpendicular to the coast, and that the treaty does not apply. The issue, of course, is that both nations think there’s oil under that triangle of seabed.” Despite Canadian protests, the U.S. has already leased plots within the area for exploration.

Environmental concerns associated with deep-sea drilling – the type of project contemplated by Russia in the Kara Sea – could trigger another raft of disputes. Stephen L. Kass, a partner at New York’s Carter Ledyard & Milburn who teaches international environmental law, contends that the United States, like all UNCLOS signatories, is bound by customary international law. And at the very least, he says, any deep-sea drilling on the U.S. continental shelf – such as that proposed by Royal Dutch Shell on leases in the Chukchi and Beaufort Seas – must meet the standards of the Environmental Protection Agency. To date, lawsuits by Alaskan natives and environmentalists have stalled exploration on Shell’s lease blocks.

And the Arctic Ocean isn’t the only area up for grabs. Last year a state-of-the-art submersible planted the Chinese flag on the floor of the South China Sea. In July the craft reached record depths while diving at a mineral site in international waters, between Hawaii and North America. That same week, an UNCLOS tribunal granted China and Russia rights to explore mineral deposits on the floor of the southwest Indian Ocean.

“Right now it’s the law of the jungle out there,” says Ronald S. Katz, a partner in the Palo Alto office of Manatt-Jones Global Strategies who helped direct the State Department’s Law of the Sea negotiations in the 1970s. “If there’s something you want to do on the seabed floor, you just go out and do it.”

Senator Lee wouldn’t have it any other way. One man’s jungle, after all, is another man’s sovereignty.

Law of the Sea

Contents of Law of the Sea

Contents of this subject matter include:

  • Introduction to the Law of the Sea
  • History and Sources of the International Law of the Sea
  • Coastal Waters
  • Territorial Sea and Contiguous Zone
  • Exclusive Economic Zone
  • Continental Shelf
  • Deep Seabed
  • High Seas
  • Archipelagic States
  • International Straits and Archipelagic Navigation
  • Marine Environmental Protection
  • Landlocked and Geographically Disadvantaged States
  • Military Uses of the Oceans
  • Marine Resource Management Marine Scientific Research
  • Delimitation of Maritime Boundaries
  • Maritime Regulation and Enforcement
  • Dispute Settlement in the Law of the Sea

Law of the Sea and Related Boundary Issues

In relation to the international law practice and law of the sea and related boundary issues in this world legal Encyclopedia, please see the following section:

Territorial Regimes and Related Issues

About this subject:

Freedoms of Navigation and Overflight

Note: there is detailed information and resources under these topics during the year 2013, covered by this entry on law of the sea and related boundary issues in this law Encyclopedia.

Law of the Sea

Embracing mainstream international law, this section on law of the sea explores the context, history and effect of the area of the law covered here.

Trade, Environment and the Law of the Sea

This section provides an overview of trade, environment and the law of the sea within the legal context of International Economic Law and Sustainable Development in international economic law (Cross-Cutting Challenges).

Law of the Sea

Related Work and Conclusions

Resources

See Also

  • Law
  • Rule of Law
  • Law System
  • Legislation

Resources

See Also

References (Papers)

  • When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle, Nov 2015
  • Enforcement Dissonance: Lobsters, The Legislature, And Federal Waters In State V. Thomas, Christopher J. Rauscher, Oct 2017
  • Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark Nevitt, Robert V. Percival, Sep 2017
  • The Aftermath Of Care V. Cow Palace And The Future Of Rcra In Cafo Cases, Lauren Tavar, Aug 2017
  • Water, Water, Nowhere: Adapting Water Rights For A Changing Climate, Caleb Hall, Aug 2017
  • Ridding Pes Systems Of The “Pay To Pollute” Principle: Pes Optimization Strategies, Kelly Carlson, Aug 2017
  • Indoor Aquaponics In Abandoned Buildings: A Potential Solution To Food Deserts, Lisa Tomlinson, Aug 2017
  • Investing In Resiliency: Prioritizing Water Systems And Investing In Green Infrastructure, Caitlin Cutchin, Aug 2017
  • You Probably Shouldn’T Build There: Watershed-Based Land Use Strategies For Mitigating Global Climate Change In New Jersey’S Freshwater Systems, Matthew Knoblauch, Aug 2017
  • About Sdlp, Aug 2017
  • Piracy Prosecutions In National Courts, Maggie Gardner, Aug 2017
  • The South China Sea Arbitration Award, Bernard H. Oxman, Aug 2017
  • Maritime Law Enforcement Operations And Intelligence In An Age Of Maritime Security, Douglas Guilfoyle, Jul 2017
  • Bow To The Silver King: Using Transboundary Rivers To Protect Tarpon, Jd Howard, Jun 2017
  • Freedom Of Navigation: Development Of The Law Of The Sea And Emerging Challenges, Vladimir Golitsyn, Jun 2017
  • Navigational Freedom: The Most Critical Common Heritage, John Norton Moore, Jun 2017
  • Bio-Prospecting In The Arctic: An Overview Of The Interaction Between The Rights Of Indigenous Peoples And Access And Benefit Sharing, Mar Campins Eritja, Jun 2017
  • Call Me Ishimaru: Independent Enforcement Of International Agreements, John Arnold, Jun 2017
  • Space Weapons And The Law, Bill Boothby, May 2017
  • Perceptions Of Fin-Fish Aquaculture: A Multi-Scalar Policy Perspective, Jordan Wrigley, May 2017
  • Turkey And The International Law Of The Sea, Ekrem Korkut, Apr 2017
  • Combat Losses Of Nuclear-Powered Warships: Contamination, Collateral Damage And The Law, Akira Mayama, Mar 2017
  • A Case Ill Suited For Judgment: Constructing ‘A Sovereign Access To The Sea’ In The Atacama Desert, Christopher R. Rossi, Feb 2017

Resources

Further Reading

  • Judith Wehrli, “Trade, Environment and the Law of the Sea,” Elgar Encyclopedia of International Economic Law, Cheltenham Glos (United Kingdom), Northampton, MA (United States)

Resources

Further Reading

  • The entry “law of the sea” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

Resources

See Also

  • Maritime Law
  • Conflict and Water
  • Federal Water Legislation
  • Mineral Resources from the Ocean
  • Petroleum from the Ocean
  • Sustainable Development
  • United Nations Treaty Series
  • Treaty Bodies
  • Sea international law resources

Further Reading (Books)

Wang, James C. F. 1991. Ocean Politics and Law: An Annotated Bibliography. Westport, CT: Greenwood Publishing Group, 1991.

Atlas of the Oceans. United Nations. .

International Tribunal for the Law of the Sea

NOAA Ocean Page. National Oceanic and Atmospheric Administration.

Ocean Affairs and the Law of the Sea. United Nations.

Further Reading (Articles)

Spratlys Solution: Law of Seas, Manila Bulletin; June 14, 2011

Law on Sea Ports of Ukraine: First Impressions, Mondaq Business Briefing; October 10, 2012

LAW OF SEA FELLOWSHIP AWARDED TO MADAGASCAR NATIONAL, RANDRIANARISOA LEONIDE, US Fed News Service, Including US State News; November 19, 2007

VIET NGUYEN HONG OF VIET NAM AWARDED TWENTY-FIRST LAW OF SEA FELLOWSHIP, US Fed News Service, Including US State News; November 3, 2006

CAPACITY-BUILDING IN OCEAN AFFAIRS, LAW OF SEA, INCLUDING MARINE SCIENCE, TO BE FOCUS OF DISCUSSIONS AT UNITED NATIONS HEADQUARTERS, JUNE 21-25, US Fed News Service, Including US State News; June 19, 2010

MEETING OF STATES PARTIES TO CONVENTION ON LAW OF SEA DECIDES TO NOMINATE MEMBER, ALTERNATE TO INTERNATIONAL TRIBUNAL’S STAFF PENSION COMMITTEE, US Fed News Service, Including US State News; June 18, 2010

Secretary-General Comments at Law of Sea Conference and Launch of Un Oceans Compact, US Fed News Service, Including US State News; August 12, 2012

The Turkish Law On Sea Pollution., Mondaq Business Briefing; September 6, 2005

LEGAL COMMITTEE IS TOLD LAW OF SEA TRIBUNAL, WITH LIKELY GREATER NEED FOR MARITIME ADJUDICATIONS, RAISING VISIBILITY, US Fed News Service, Including US State News; November 5, 2009

STATE DEPT.: LAW OF SEA CONVENTION SERVES U.S. INTERESTS, BUSH SAYS, US Fed News Service, Including US State News; May 18, 2007

MILITARY OFFICIALS URGE ACCESSION TO LAW OF SEA TREATY, US Fed News Service, Including US State News; December 11, 2007

LAW OF SEA CONVENTION STATES PARTIES OPEN SESSION AMID PRAISE FOR TRIBUNAL’S LANDMARK BOUNDARY DISPUTE RULING, DISPUTES CHAMBER’S ADVISORY OPINION., States News Service; June 4, 2012

PANETTA: U.S. LEADERSHIP NEEDED IN LAW OF SEA CONVENTION, US Fed News Service, Including US State News; May 12, 2012

EDITORIAL: Law of Sea treaty a flood of bad ideas.(Editorial), The Free Press (Kinston, NC); October 10, 2007

SEN. LUGAR ISSUES STATEMENT FOR HEARING ON U.N. LAW OF SEA CONVENTION, US Fed News Service, Including US State News; October 4, 2007

Law of Sea Convention Bodies Increasingly Called upon to Resolve Disputes, Expand Maritime Jurisprudence, Say States Parties in Opening Meeting, States News Service; June 10, 2013

PEW AND BELMONT UNIVERSITY HOST LAW OF SEA TREATY FORUM., States News Service; November 18, 2009

SEN. LUGAR ISSUES STATEMENT FOR HEARING ON LAW OF SEA, US Fed News Service, Including US State News; September 27, 2007

SEN. MURKOWSKI EARNS SUPPORT FOR LAW OF SEA TREATY, ARCTIC POLICY, US Fed News Service, Including US State News; January 13, 2009

U.S. Northern Commander Backs Begich on Law of Sea Treaty, States News Service; March 11, 2010

Hierarchical Display of Law of the sea

Law > International law > Public international law
Agriculture, Forestry And Fisheries > Fisheries > Fisheries policy > Fishing regulations > Fishing rights
Environment > Deterioration of the environment > Pollution > Water pollution > Marine pollution
Environment > Natural environment > Geophysical environment > Sea
Environment > Natural environment > Geophysical environment > Ocean
Environment > Environmental policy > Pollution control measures
Environment > Environmental policy > Environmental policy > Management of resources > Exploitation of resources > Exploitation of the seas
Environment > Deterioration of the environment > Pollution > Coastal pollution
Environment > Deterioration of the environment > Pollution > Pollution from ships
Transport > Maritime and inland waterway transport > Maritime transport > Maritime law

Law of the sea

Concept of Law of the sea

See the dictionary definition of Law of the sea.

Characteristics of Law of the sea

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Resources

Translation of Law of the sea

Thesaurus of Law of the sea

Law > International law > Public international law > Law of the sea
Agriculture, Forestry And Fisheries > Fisheries > Fisheries policy > Fishing regulations > Fishing rights > Law of the sea
Environment > Deterioration of the environment > Pollution > Water pollution > Marine pollution > Law of the sea
Environment > Natural environment > Geophysical environment > Sea > Law of the sea
Environment > Natural environment > Geophysical environment > Ocean > Law of the sea
Environment > Environmental policy > Pollution control measures > Law of the sea
Environment > Environmental policy > Environmental policy > Management of resources > Exploitation of resources > Exploitation of the seas > Law of the sea
Environment > Deterioration of the environment > Pollution > Coastal pollution > Law of the sea
Environment > Deterioration of the environment > Pollution > Pollution from ships > Law of the sea
Transport > Maritime and inland waterway transport > Maritime transport > Maritime law > Law of the sea

See also

  • International maritime law

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