Web Special Feature - December 4, 2001 
Ocean Policy

New U.S. support for the Law of the Sea
By Christina Reed and Lisa M. Pinsker

On Nov. 27, U.S. Ambassador to the United Nations (UN) Sichan Siv cited national security, economic and environmental interests in announcing the Bush administration's support for the Convention on the Law of the Sea. A cornerstone of international ocean policy, the Convention establishes national jurisdiction and international codes of behavior for Earth's oceans.

Although the United States agreed to abide by the principles of the Convention created in 1982, Senate treaty ratification has yet to occur. Siv's statement to the UN Economic and Social Council in New York makes this the second administration to support ratification, and follows the recommendations made earlier in the month by the president's Commission on Ocean Policy urging immediate ratification. The urgency reflects an upcoming deadline for the United States to actively participate in boundary setting related to the continental margin.

On Sept. 28, 1945, President Truman declared the continental shelf government property, saying: "The Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control."

Although Truman used the term continental shelf, he was referring to the entire continental margin -- which includes the shelf, slope and rise. Semantics aside, he clearly claimed new ocean territory and the resources on the bottom.

But Truman's declaration was not enough. An international law was needed to govern the rights and boundaries on the high seas. In 1982, the United Nations stepped in with its Convention on the Law of the Sea.

Put into force in 1994, the Convention established customary international laws such as limiting all coastal countries' territorial sovereignty of the sea to 12 nautical miles beyond its shores and maintaining high-sea freedoms within a 200-nautical-mile exclusive economic zone or EEZ. One hundred and thirty seven countries have joined the convention, including Russia, the United Kingdom, Ireland, India, Australia, New Zealand, Argentina and Brazil. Notably absent is the United States.

Although the United States worked with the UN to establish the laws of the 1982 Convention, America did not sign because of concerns over rights to deep seabed mining. When an amendment resolved those concerns in 1994, the United States signed the amendment, but not the Convention. Since then, the Senate has not ratified the amendment or the Convention. In the meantime, the United States acts as an observer to the proceedings related to the treaty without acting as a formal party.

Why now?

The Convention also established the Commission on the Limits of the Continental Shelf. The commission holds elections every five years, with the next elections coming up in April 2002. The commission recommends to the UN whether the limits a country submits for its continental shelf are scientifically valid, legally defensible and politically acceptable.

As of now, no country has submitted its limits for review. But, international and State Department officials confirm that Russia intends to do so before the end of the year for its continental shelf in the Arctic. Under the laws of the Convention, every coastal country has exclusive economic rights out to 200 nautical miles, even if their continental shelf does not extend that far. However, countries are not limited to that zone if their continental shelves extend beyond 200 nautical miles. And the Convention does not require a formal claim. If a country defines its limits based on the Convention's recommendations, then those limits are considered final and binding. Should the commission recommend that Russia go ahead and follow the limits it submits, and Russia does, then no country can argue where those limits fall.

Following a Nov. 13 and 14 workshop in Washington, President Bush's recently created Commission on Ocean Policy encouraged the Senate to ratify the Convention before February 2002. Members of the American Bar Association, the House of Representatives, the State Department and the U.S. Coast Guard testified on the Convention's importance to domestic resources and international security.

"It is true that there is a long list of treaties which the United States has signed, abides by and supports, but has not ratified," says Robert Hirshon, president of the American Bar Association. He went on to note that until it joins the UN Convention on the Law of the Sea, the United States is ineligible to elect a scientist to the Commission on the Continental Shelf and identify for the Convention the limits of its continental margin beyond 200 nautical miles. "As oil exploitation has now become technologically feasible in these distant areas, certainty of jurisdiction is essential to stability," Hirshon says.

Geologic Criteria

Article 76 of the Convention defines the continental shelf and the criteria a coastal country must meet to extend the outer limits of its continental shelf beyond 200 nautical miles. "For extending the limits of the outer continental shelf there are multiple criteria that may be applied, some of them based largely on bathymetry, and some based on the geologic structure," says John Haines, program coordinator of coastal and marine geology at the U.S. Geological Survey (USGS).

The USGS was one U.S. agency involved with the State Department in developing strict scientific criteria for Article 76. These rules include establishing the foot of the continental slope, meeting the stated requirements for the thickness of sedimentary rocks, satisfying geomorphological requirements and meeting distance and depth criteria, or by any combination of these methods.

Because no country has formally extended their exclusive economic zone beyond 200 nautical miles, "it's a bit speculative what the requirements are going to be. We begin with the assumption that the U.S. is going to be held to an extremely high standard, because we have technological capabilities that will allow us to collect the kind of data that isn't readily available to some other nations." Haines says.

The USGS is currently assessing how existing data might serve as the basis for supporting any claims. "We began preliminary planning last year, and the project has really hit the ground this year," Haines says, after the State Department voiced concern about U.S. data holdings should they decide to press forward with a claim. "Right now we could produce a claim based on existing data. The question is, given the shortcomings in that data, would our claim be better substantiated with better data?" The U.S. EEZ and outer continental shelf are not comprehensively mapped. More bathymetric data are needed for depth profiles and more modern, multi-channel seismic data are needed to evaluate sediment thickness along the continental margin, Haines says.

A bathymetric contour is the starting point for calculating the continental shelf extension. The National Oceanic and Atmospheric Administration heads U.S. bathymetric mapping efforts. The primary concern about existing bathymetric maps is the density of information on the slope. The current maps are not made with modern, multi-beam data, Haines says. "And when you're trying to define a contour, a depth contour, the better the data, the more regularly sampled, the denser the sampling, the better you can define that line."

Another key section of the criteria depends on the thickness of the sediments deposited on the continental margin. Known informally as the "Irish Formula," it articulates the procedure for determining a shelf cutoff limit that's based on the thickness of sedimentary material. Member nations accepted the formula, created by the Irish delegation, as a compromise to allow wide-margin coastal states to claim their "fair share of the non-living resources of the seabed without encroaching excessively upon the resources that more properly belong to the international community," says Ron Macnab, a North American expert on the Law of the Sea, who gave his personal perspective to Geotimes.

The USGS does not have a comprehensive data set, particularly multi-channel seismic, to accurately estimate that thickness, Haines says. Much USGS data comes from older, single-channel seismic data that do not as accurately describe the velocity structure of the material, which is critical to determining the thickness. So, Haines says, the United States will most likely need to improve sediment data before moving forward with any claim.

What next?

Although the Bush administration supports the Convention, the final decision rests with the Senate. According to Lynne Weil, press secretary for the majority staff of the Senate Foreign Relations Committee, the committee cannot move forward with the Convention without a letter stating the priority of treaties from the State Department. The State Department has confirmed a draft of the Treaties Priority letter.

Whereas Sen. Joe Biden (D-Del.), chairman of the committee, supports the Law of the Sea, Republican committee members led by Sen. Jesse Helms (R-N.C.) oppose ratification. Senate Republicans "generally speaking have not supported the Law of the Sea treaty because it would create new United Nations bureaucracy," says Lester Munson, press secretary for the minority staff of the Foreign Relations Committee. Additionally, he says there are more technical objections, but he did not disclose them.

Still, with the support of the Bush administration and U.S. industry, a consensus is growing to move forward with formal U.S. participation in the Law of the Sea. At the November workshop for the Commission on Ocean Policy, Robert Hirshon summed up those sentiments: "There does not now appear to be any rationale that supports our continuing nonparticipation in an agreement that so effectively stemmed the rising tide of claims of national jurisdiction in the oceans, and that will continue to serve our interests as long as the United States sits astride two great oceans."

Related Web Pages:

The Commission on Ocean Policy

Oceans and the Law of the Sea

Previous AGI discussion on Law of the Sea debate in United States

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