The United Nations Convention on the Law of the Sea: Should the United States Join?

Understanding the United Nation’s Convention on the Law of the Sea III

Christopher Syner

12/11/2014

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TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................4

I. OVERVIEW OF THE UNITED NATION’S CONVENTION ON THE LAW OF THE SEA..................................................................................................................................................5

A. Basic History of the United Nations Convention on the Law of the Sea..............................5 B. The Articles of the Convention..............................................................................................6

II. THE ABSENCE OF THE UNITED STATES....................................................................7

A. Failure to Pass....................................................................................................................7 B. Applicable Law: UNCLOS III, the Creation of the EEZ, and the Powers of the Coastal State to Regulate Transit.............................................................................................................9

1. United States v. Royal Caribbean Cruises, Ltd. , 24 F.Supp.2d 155 (D.P.R. 1997).....82. Mayaguezanos por la Salud y el Ambiente v. United States , 38 F. Supp. 2d 168

(D.P.R. 1999). ...........................................................................................................103. United States v. Jho , 534 F.3d 398 (5th Cir. 2008). ..................................................11

III. BENEFITS OF JOINING THE CONVENTION..............................................................12A. Growth of Territorial Waters.............................................................................................12

1. United States v. F/V Taiyo Maru, No. 28, SOI 600 , 395 F. Supp. 413 (D. Me.1975)15B. Baseline...........................................................................................................................16

1. Blanco v. United States , No. 8:10-CR-100-T-30MAP, 2013 WL 2285098, at *1 (M.D. Fla. May 23, 2013)……………………………………………………………16

2. United States v. Carvajal , 924 F. Supp. 2d 219 (D.D.C.2013)....................................17C. Exclusive Economic Zone................................................................................................18

1. Perforaciones Maritimas Mexicanas S.A. de C.V. v. Seacor Holdings, Inc. , No. CIVA4:05-CV-419, 2008 WL 7628289, at *1 (S.D. Tex. Mar. 24, 2008)…………18

2. Michileno-Valencia v. Rothman , No. 1: 13-CV-1045-AKK-TMP, 2014 WL 1048554, at *1 (N.D. Ala. Mar. 18, 2014)……………...…………………………. 19

D. Free Travel……………………………………………………………………………... 20E. UNCLOS III and Piracy....................................................................................................20

1. United States v. Ali , 885 F. Supp. 2d 17 (D.D.C. 2012). ..........................................202. United States v. Salad , 908 F. Supp. 2d 730 (E.D. Va. 2012)………………………213. Flores v. S. Peru Copper Corp ., 414 F.3d 233 (2d Cir.2003)……………………….214. United States v. Hasan , 747 F. Supp. 2d 599 (E.D. Va. 2010)…………………..…215. United States v. Dire , 680 F.3d 446 (4th Cir. 2012)………………………………..21

IV. CASTING A CLAIM IN THE ARCTIC.........................................................................23

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V. THE SO CALLED NEGATIVES...................................................................................28

VI. RECOMMENDATION....................................................................................................32A. Protection of Economic Interests.......................................................................................32B. Peaceful Dispute Settlement..............................................................................................33C. Potential Solution..............................................................................................................34

CONCLUSION.............................................................................................................................35

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THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA SHOULD THE UNITED STATES JOIN?

INTRODUCTION

The world’s oceans play a central role in global commerce and international affairs, but

for much of history they were regarded as too vast to be regulated and were generally seen as

unharmable.1 However, after the Industrial Revolution, for the first time humanity had the power

to dramatically affect the world’s oceans. As a result of the change in the capability of humanity

the world’s oceans are no longer unclaimed and ignored. All countries now have claims that

extend from their coastlines and want to protect and advance their claims if possible. As a result,

over the years, various treaties have tried to protect different claims that nations have with regard

to the oceans natural resources.2 This article will address one treaty in particular, the United

Nation Convention of the Law of the Sea, or UNCLOS III.3 UNCLOS III was created to deal

with a wide variety of laws about the high seas, territorial seas, coastal areas.4 These issues

include ownership, resource use, and passage rights.5

The article will address the basic history of the United Nations Convention on the Law of

the Sea and why the United States has not joined. The article will also discuss the benefits of

joining or not joining the treaty, the main disputes around the world and how UNCLOS III is

used by the United States’s court system which has been appyling its laws and rules. In addition,

the article will discuss the territorial claims that the United States has, along with its Arctic

neighbors over the Arctic region. There will be a discussion on the economic and security

1 Alison Rieser et al., Ocean and Coastal Law 2. (4th ed. 2013).2 Id. 3 Id. at 25.4 Id. 5 Jay M. Zitter, J.D., Annotation, Construction and Application of United Nations Convention on the Law of the Sea—Global Cases, 21 A.L.R. Fed. 2d 109 (2007).

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interests that the United States, along with its neighbors, have in the Arctic region. Finally, this

article proposes a potential solution for the United States with regards to the UNCLOS III treaty

that can protect United States’s interest and keep the country competitive.

I. OVERVIEW OF THE UNITED NATION’S CONVENTION ON THE LAW OF THE SEA

A. Basic History of the United Nations Convention on the Law of the Sea

The Third United Nations Conference on the Law of the Sea gathered one hundred and

sixty national delegations to solve problems among potential signatories.6 It was the biggest and

most complex international law-making conference ever convened, and it continued for almost

ten years.7 The conference ended with the adoption in 1982 of a constitution for the seas, the

United Nations Convention on the Law of the Sea (UNCLOS III).8 The American president at

the time, Ronald Reagan, issued an order that the United States would follow the provisions of

the treaty; so it seemed for a moment that the United States would join the treaty. 9 The United

States the world’s foremost naval power and the country with the world's second longest

coastline could join a treaty that offers it the ability to expand its current rights.10

The United States made several objections to seabed mining, amendments without

parties' approval and technology transfers to other countries.11 The United States objected to the

current wording because UNCLOS III has a clause which would make the United States share its

technology with other nations.12 The issues of mining and voting rights were troublesome and

despite intense negotiations, the United States chose to not join the treaty under its then current

6 Rieser et al., supra, at 25.7 Id.8 Id. at 27.9 Id. at 28.10 Id. at 25.11 Id. at 27.12 Id.

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wording.13 With an elusive agreement, the treaty was put to a vote and adopted on April 30, 1982

in New York.14 The vote included one hundred and thirty countries voting in favor, four against,

including the United States, and seventeen abstaining.15 In December of that year, the treaty was

opened for signature in the final session of UNCLOS III in Montego Bay and received a record

one hundred and nineteen signatures the first day. 16 While this treaty, although signed by the

President, has not been ratified by Congress, it is of great importance and influence in

determining the international law of the seas.17 UNCLOS III has great importance, on the law of

the seas, because it lays out into writing the rules and regulations that are to govern the high

seas.18

B. The Articles of the Convention

UNCLOS III has three hundred and twenty articles, in seventeen parts, and nine annexes;

and addresses almost every aspect of ocean sovereignty, jurisdiction, and use.19 The first part of

the Convention gives a definition to keywords that are throughout the treaty.20 Parts II-XI

address maritime zones and administration of the oceans and how the coastal state’s authority

lessons with distance from the shoreline.21 The first zone is the Territorial Sea, where the state

has exclusive control over all matters; next is the Contiguous Zone, here the state has powers

over customs, immigration; and sanitary matters.22 In the Exclusive Economic Zones the state’s

powers are over mainly its natural resources but also include the power to prevent, pollution, and

13 Id.14 Id. 15 Id.16 Id. at 27.17 Zitter, supra, at 109.18 Id.19 Rieser et al., supra, at 29.20 Id. 21 Id.22 Id. at 30.

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hostile acts towards their nation.23 The Exclusive Economic Zone can extend out to the nation

state’s Continental Shelf.24 Finally, we have the High Seas, which is internationalized, or open to

all nations.25 The only waters not changed by the Convention are those of the internal waters,

which are waters that are landward of the inner boundary of the territorial sea.26 These internal

waters include most ports, harbors, and inner water ways; and they subject to complete

sovereignty of the coastal nation.27

Despite not becoming a member of the Convention, the United States took it upon itself

to follow the majority of UNCLOS III policies including: “1. recognizing the rights of other

states in the waters off their coasts, as reflected in the convention 2. The United States would use

its navigation and overflight rights and freedoms, in a manner that is consistent with the

balancing of interests reflected in the convention and 3. The United States would exercise

sovereign rights in living and nonliving resources within two hundred nautical miles of its coast

in accordance with the EEZ provisions.”28 Since the United States was following the treaty,

many leaders of the United States wanted the nation to join the treaty so the country could

become a full member.29

II. THE ABSENCE OF THE UNITED STATES

A. Failure to Pass

23 Id. at 35.24 Id.25 Id. 26 Id. at 31.27 Id.28 Marta Kolcz-Ryan, An Arctic Race: How the United States' Failure to Ratify the Law of the Sea Convention Could Adversely Affect Its Interests in the Arctic, 35 U. Dayton L. Rev. 149, 160-161 (2009).29 Rieser et al., supra, at 69.

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In the early 1990's, there was a genuine chance that the United States would join

UNCLOS III.30 The agreement between the United States and the convention, about deep seabed

mining, did not meet American demands.31 President Bill Clinton approved the plan and signed

UNCLOS III.32 UNCLOS III then went to the Senate for approval where the Senate failed to pass

the treaty due to political reasons.33 In the early 2000’s with a new administration, there was

renewed hope that the treaty would be moved forward for approval. However, despite the

backing of President George W. Bush several senators blocked the vote and UNCLOS III failed

to reach the Senate floor.34

Despite the blocking of senators, UNCLOS III has broad support from the current

President, Barack Obama, and most of the senate. The United States military supports ratifying

the Convention because of the belief that UNCLOS III will better protect American interest.35

Another example of strong support comes from the private sector, such as the shipping industry

and the energy sector.36 The majority of businesses that want to operate in the Arctic advocate

the passing of UNCLOS III because it will create stability with rules and increase the area of the

ocean from which they can extract resources.37

B. Applicable Law: UNCLOS III, the Creation of the EEZ, and the Powers of the Coastal

State to Regulate Transit

30 Kolcz-Ryan, supra, at 161.31 Id. at 161.32 Id.33 Id.34 Id. at 162.35Rieser et al., supra, at 70.36 Id. 37 Id.

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In the United States, Federal Courts are experiencing a dilemma. On one hand the United

States enforces and for the most part follows UNCLOS III.38 For example, the United States

enthusiastically adopts provisions of UNCLOS III is it comes to pollution related issues.39 In

United States v. Royal Caribbean Cruises, Ltd., a Cruise ship from Caribbean Cruises was

dumping oil off its ship into American territorial waters.40 An American court applied UNCLOS

III because the law protected American interests and sovereignty.41 The court stated that

UNCLOS III governs matters of pollution by foreign vessels within American territorial sea.42

The court concluded that: “(1)The United Nations Law of the Sea Convention of 1982

(UNCLOS III) did not stop the United States from pursuing monetary penalties for criminal

charges under Water Pollution and Control Act and conspiracy, fraud, and evidence tampering

statutes; and (2) The oil spill was within territorial waters of the United States despite fact that

the ship flew the flag of Norway.”43 Although the treaty arising from the convention is currently

awaiting ratification before the Senate, it nevertheless carries the weight of law from the date of

its submission by the President to the Senate.44 The submission of the treaty to the Senate

expresses to the international community the United States' ultimate intention to be bound by the

pact to the international community. Pending a treaty's rejection or confirmation by the Senate

under Article 18 of the Vienna Convention, the United States is bound to uphold the purpose and

principles of the agreement to which the executive branch has tentatively made

the United States a party.45

38 United States v. Royal Caribbean Cruises, Ltd., 24 F.Supp.2d 155 (D.P.R. 1997).39 Id.40 Id. at 159.41 Id. at 155.42 Id.43 Id.44 Id. at 159.45 Id.

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In Mayaguezanos por la Salud y el Ambiente v. United States, a group of fishermen and

environmentalists wanted to stop a ship from carrying nuclear waste in the United States’s

Exclusive Economic Zone. The court analyzed whether the United States would have the right to

stop a vessel from traveling through its Exclusive Economic Zone when the ship carries

hazardous materials.46 The court looked to the applicable law of UNCLOS III.47 The Territorial

Sea, the Contiguous Zone, the EEZ, the Continental shelf, and the High seas are the five major

jurisdictional zones of UNCLOS III.48 Each distinct zone has certain rights and sovernity that the

coastal state can impose but these powers deminish with distance.49 Thus, UNCLOS III creates

clear lines of jurisdiction that states can understand and enforce on other states and third party

actors. 50

Furthermore, the right of innocent passage embodied in UNCLOS III is one of the

bedrock principles of the law of the sea.51 UNCLOS III clearly states that ships enjoy the right of

innocent passage through a coastal state's territorial sea.52 The court explains the general

principal that coastal state’s rights decline with distance. 53 The court concluded that naval

vessels have the right of passage through the EEZ as long as they obey international standards. 54

Therefore, it is unlawful for the costal state to stop the passage of a vessel that is following

international laws just because the costal state does not like the cargo aboard.55 A ship's passage

will only become unlawful if there is “an act of willful and serious pollution,” which did not

46 Mayaguezanos por la Salud y el Ambiente v. United States, 38 F. Supp. 2d 168, 175 (D.P.R. 1999).47 Id.48 Id.49 Id.50 Id.51 Id. at 178-179.52 Id. at 179.53 Id.54 Id.55 Id.

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happen in this case.56 UNCLOS III limits the situations where a coastal State may interfere with

the passage of a ship, either through its territorial sea or its EEZ, to those instances where there

has been a violation of the applicable international rules and standards for the prevention and

reduction of pollution and where that violation has resulted in a discharge causing or threatening

major damage to the coastal State's environment.57 The court concluded that “since neither of

those two scenarios applies to these shipments, the right of innocent passage is not extinguished,

and the United States may not intervene with the passage of these ships in any way.”58

In United States v. Jho, the defendants, owned a foreign vessel that transferred bulk

petroleum from offshore oil tankers to ports along the Gulf of Mexico.59 The defendants and the

vessel’s chief engineer, were charged with illegal dumping of oil-contaminated bilge waste and

with knowingly failing to maintain an oil record book.60 The court concluded that UNCLOS III

does not limit, but broadens, this traditional rule when it comes to the power of port states to

enforce marine pollution laws.61 The enforcement scheme created by UNCLOS III provides port

states the power to prosecute violations beyond those that occur in its ports.62 UNCLOS III

allows port states to pursue violations of marine pollution laws that occur within the port state's

territorial sea or Exclusive Economic Zone.63 Thus, the court adopted UNCLOS III for its ruling

because it, in their words, reflected “Customary International Law,” which gave the United

States legal rights to a remedy because of the illegal dumping of pollutant materials. 64

56 Id.57 Id.58 Id.59 United States v. Jho, 534 F.3d 398 (5th Cir. 2008).60 Id.61 Id. at 409.62 Id.63 Id.64 Id. at 406.

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Although President Clinton had signed the treaty, the United States has not officially

joined the Convention.65 Thus, the courts are left to figure out how the United States policy

should regard the rules and regulations of the Convention despite the fact that the United States

is not a part of the Convention.66 Despite this confusion, courts tend to look towards the treaty as

the law that the United States should follow.67

III. BENEFITS OF JOINING THE CONVENTION

A. Growth of Territorial Waters

The original doctrine of maritime recognition of the country's territorial sea was a narrow

belt of water and submerged lands extending seaward from a country's baselines.68 Everything

outside of that territorial sea was considered free and was not governed by the nation state.69

However, by the beginning of the twentieth century there was a growing movement within

countries to extend their national waters further out to cover newly discovered resources.70

Consequently, once governments started to expand their claims further into the ocean other

countries became concerned.71 Prior to UNCLOS III, some nations maintained the traditional

three mile limit; some countries claimed between four and ten miles, while still others claimed

twelve miles, and a number of countries claimed a two hundred mile limit.72 Smaller states and

those not possessing large, ocean-going navies or merchant fleets favored a wide territorial sea in

order to protect their coastal waters from infringements by other states.73 Large naval and

65 Kolcz-Ryan, supra, at 161.66 Jho, 534 F.3d at 40967 Id. 68 Rieser et al., supra, at 2.69 Id.70 Id. at 2-3.71 Id. at 3.72 Zitter, supra, at 109.73 Id.

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maritime powers generally sought to limit the claims that coastal nations want to project from

their coast lines in order to protect international shipping.74

One thing that all countries could agree upon was the fact that the oceans were becoming

overcrowded and lawless, and that change was against their national interests.75 Thus, it became

apparent that greater regulation and control was necessary.76 Nations were very concerned at the

depletion of their fish populations, the pollution in their waters, and the prospect of increasing

mineral and oil extraction.77 Each country wanted to protect these resources for themselves; and

UNCLOS III created a way for countries to regulate and protect their rights and resources.78

UNCLOS III had the daunting task of balancing the needs of large maritime nations that

wanted fewer restrictions with the needs of small maritime nations that wanted more regulations

and restrictions.79 UNCLOS III established a compromise- a twelve mile limit that allowed and

guaranteed the right of innocent passage through the territorial seas of a coastal nation.80 In

effect, one nation could travel through another nation’s territorial sea as long as the vessel did

not threaten the coastal state and did not violate its laws.81

UNCLOS III allows coastal states to enforce their laws within their territorial sea and

allows coastal states to extend jurisdiction over some activities beyond the twelve mile limit to

twenty-four miles.82 This new limit allows the state to enforce certain laws and to, if necessary,

arrest and detain ships.83 The reason for arrests may range from, drug trafficking crimes, human

74 Id.75Rieser et al., supra, at 23.76 Id. at 5.77 Id. 78 Id. at 25.79 Zitter, supra, at 109.80 Id. 81 Id.82 Id.83 Id.

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smugglers, illegal immigrants and tax evaders violating the laws of the coastal state within its

territory or the territorial sea.84 This twenty-four mile area, also called the Contigous zone, allows

ships to have passage if they follow international law and do not threaten the costal state.85 The

regulation basically allows the seas to remain open to foreign vessels but with restrictions that

keep coastal states safe, secure, and happy. However, the vessel must be traveling through the

Contiguous zone and not delay or stop in the region, or its privilege of passage is revoked.86

Thus, if the vessel obeys all rules that are internationally reasonable then the vessel can freely

travel through these waters.87

In addition to the transit and navigation regulations, UNCLOS III also allows coastal

states to claim an Exclusive Economic Zones.88 These zones allow coastal states to monopolize

the oil, fishing, and mineral rights in these waters.89 It allows coastal states the right to mine or

drill the ocean floor for their national resources.90 The Exclusive Economic Zone extends two

hundred miles from the shoreline.91 However, some maritime nations, are allowed to fish in the

coastal state’s EEZ if the coastal state has not fulfilled its fishing quota and does not have the

ability to harvest full quota.92 The maritime nation that wants to fish in the coastal state’s EEZ

must meet certain arrangements and agreements by the coastal state and the Convention.93

UNCLOS III states that when a coastal state is going to allow a maritime nation to fish in its

waters there must be a balance between the needs of the maritime nation and the preservation of

84 Id.85 Rieser et al., supra, at 34.86 Zitter, supra, at 109.87 Id.88 Rieser et al., supra, at 35.89 Zitter, supra, at 109.90 Id.91 Rieser et al., supra, at 35.92 United Nations Convention on the Law of the Sea Article 63 section 2 (1982).93 Id.

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the living resources.94 The provisions above were to prevent foreign fishing vessels from sailing

into other nation’s EEZ and stealing their living natural resources, which is a threat to the coastal

state’s economy.95

In the United States v. F/V TAIYO MARU, the United States Coast Guard sighted the

TAIYO MARU, a commercial Japanese fishing vessel, within waters which the United States

claimed as part of its contiguous fisheries zone.96 The United State’s coast guard attempted to

signal the vessel but the vessel refused to respond and tried to escape to international waters.97

The Coast Guard gave pursuit and captured the Japanese flagged vessel and brought the vessel

back to port in the United States.98 The court concluded that since the Coast Guard captured the

vessel in hot pursuit that the United States was then “sanctioned by domestic law” and was

following “international law and practice.”99

Defendant's motions to dismiss for lack of jurisdiction was denied.100 This case predates

UNCLOS III but shows how the world is changing.101 This case is important because in countries

like Japan that are in desperate need of fish for their own domestic consumption will resort to

fishing off other nation’s waters. However, the treaty tries to change this lawless behavior in a

way that will mutually benefit all nations involved.102 UNCLOS III implements a system of

living resource management that tries to address the growing demands of the fish industry versus

the need for conservation. Thus, this case shows two important things. First there is a need for a

uniform law that manages fishing rights for all nations. Second, there is a need to have a law that 94 Id.95 Id.96 United States v. F/V Taiyo Maru, +No. 28, SOI 600, 395 F. Supp. 413, 414(D. Me. 1975).97 Id.98 Id. at 413.99 Id. 100 Id. at 421.101 Id. at 413.102 Rieser et al., supra, at 38-39.

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keeps nations from stealing natural resources from other nations. In order for UNCLOS III to

manage living resources there must be clear and distinct boundaries where nations and private

vessels can see and follow these boundaries which start from the costal state’s baseline.

B. Baseline

Article 2 of UNCLOS III states that “every state has the right to establish the breadth of

its territorial sea up to a limit not exceeding twelve nautical miles, measured from baselines

determined in accordance with this Convention.”103 Article 55 states that “the Exclusive

Economic Zone is an area beyond and adjacent to the territorial sea.”104 Article 57 states that the

Exclusive Economic Zone shall not extend beyond two hundred nautical miles from the

baselines from which the breadth of the territorial sea starts.105 Unfortunately, coastal baselines

are not always clear, because the coastline is drastically different everywhere due to geography.

The idea of how to draw the baseline, the inner boundary of the territorial sea, has barely

changed from that of the 1958 Geneva Convention on the Territorial Sea and Contiguous

Zone.106 The importance of baselines is paramount to understanding UNCLOS III because

without baselines then distances of where the different territorial zones started and eneded would

be blurred. The normal baseline is the mean low-water line of the coast, but non-normal

baselines can be drawn across river mouths, the openings of bays; along the outer points of

complex coastlines using the formulas set out in the treaty.107 These non-normal baselines had a

significant amount of debate at the convention.108 The areas enclosed by baselines as internal

103 Blanco v. United States, No. 8:10-CR-100-T-30MAP, 2013 WL 2285098, at *11 (M.D. Fla. May 23, 2013).104 Id. at 11-12.105 Id. at 12.106 Rieser et al., supra, at 31.107 Id.108 Id.

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waters are not subject to the treaties rules to protect international navigation rights.109 Illegal

baselines significantly compromise the bargain struck in the negotiations to balance the rights of

the coastal states and maritime powers.110 However, baselines are not neatly drawn, and claims

can overlap.

United States v. Carvajal, involved drug trafficking on boats from Colombia to

Nicaragua with the final destination to be the United States.111 In this case, the court talks about

how the International Court of Justice set out a line of maritime delimitation to divide the

continental shelf and EEZ rights of Colombia and Nicaragua.112 This ruling has upset Colombia

because its EEZ has been reduced in size and because two of its islands are now surrounded by

waters in the Nicaraguan EEZ, notwithstanding the 12–mile territorial sea around them

belonging to Colombia.113 This case shows the complexity of where and in what jurisdiction the

drug traffickers are prosecuted. The importance of this case to UNCLOS III is how EEZ’s

boundaries are sometimes hard to define because of geography and conflicting claims by nations.

The importance of knowing where the EEZ boundaries begins and ends is paramount in

protecting a nation’s interests either it being natural resources or protections from drug

trafficking.

C. Exclusive Economic Zone

Once it is determined where the baseline begins and where the Exclusive Economic Zone

ends then a state has ownership of natural resources. In Perforaciones Maritimas Mexicanas S.A

de C.V. v. Seacor Holdings, Inc. a vessel struck against a fixed object the vessel being a

109 Id. at 31-32.110 Id. at 32.111 United States v. Carvajal, 924 F. Supp. 2d 219 (D.D.C.2013).112 Id. at 234.113 Id.

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Mexican flagged supply ship, the ISLA AZTECA, and a Mobile Offshore Drilling Unit

TOTONACA, which was another vessel flying the Mexican flag.114 Although it was claimed the

collision was in “territorial waters” of Mexico. It was later found that the collision happened in

the Exclusive Economic Zone of Mexico.115 The United States District Court, S.D. Texas,

Houston Division court examined the provisions of UNCLOS III which defines the Exclusive

Economic Zone as the Coastal State’s “(a) sovereign rights for the purpose of exploring and

exploiting, conserving and managing the natural resources, whether living or non-living, of the

waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other

activities for the economic exploitation and exploration of the zone, such as the production of

energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant

provisions of this Convention with regard to: (i) the establishment and use of artificial islands,

installations and structures; (II) marine scientific research; (III) the protection and preservation of

the marine environment; (c) other rights and duties provided for in this convention.”116

The court further concluded that the allision at issue in this case did not take place in

Mexico's territorial sea, but instead in its Exclusive Economic Zone.117 Non-coastal states retain

certain rights in the Exclusive Economic Zone, as well.118 UNCLOS III article 58 states that, in

the EEZ, all states enjoy “the freedoms referred to in article 87 of navigation and overflight and

of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea

related to these freedoms, such as those associated with the operation of ships, aircraft and

submarine cables and pipelines, and compatible with the other provisions of this Convention.”119

114 Perforaciones Maritimas Mexicanas S.A. de C.V. v. Seacor Holdings, Inc., No. CIVA4:05-CV-419, 2008 WL 7628289, at *1 (S.D. Tex. Mar. 24, 2008).115 Id. 116 Id. at 3.117 Id. at 4.118 Id. at 3.119 Id.

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Nothing in the language of UNCLOS III indicates that Mexico's limited sovereign rights related

to the exploration and exploitation of natural resources in the EEZ nor does it deprive the United

States courts of jurisdiction over torts or collisions that occur on those waters.120 The court quotes

UNCLOS III stating that “‘sovereign rights' which a coastal state enjoys in its Exclusive

Economic Zone are functional in character, limited to certain activities.”121 The court found that

the United States had an interest, and had standing to sue and, as a result, the case could move

forward.122 This case was significant because it showed how courts uses UNCLOS III to define

American interests and help solve disputes at sea.123

In Michileno-Valencia v. Rothman, is about drug traffickers who were arrested and put

on trail because the vessel was subject to United States jurisdiction. The court found that the

EEZ under UNCLOS III simply is not the same as that nation's territorial waters. 124 The court

determined that “the petitioner's argument that he was in Panamanian territorial waters fails.”125

UNCLOS III, the Convention itself, differentiates the “territorial seas” of the nation from the

“Exclusive Economic Zone,” which lies “beyond and adjacent to the territorial sea.”126 “The

‘territorial sea” is a coastal region defined by UNCLOS III as a belt of sea not exceeding twelve

nautical miles from the coast.”127 This case is another example of where UNCLOS III helps

American courts prosecute criminals because it allows the United States to determine where the

territorial sea ends and where the Exclusive Economic Zone begins.

D. Free Travel120 Id.121 Id.122 Id. at 4.123 Id.124 Michileno-Valencia v. Rothman, No. 1:13-CV-1045-AKK-TMP, 2014 WL 1048554, at *1 (N.D. Ala. Mar. 18, 2014).125 Id. at 3. 126 Id.127 Id.

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Because the United States is not part of UNCLOS III, United States uses the Freedom of

Navigation Program started under President Carter in 1978.128 The United States argues that the

program follows the norms of international law.129 Ironically, the United States, the only non-

party developed nation, is serving as the primary “policeman” for assuring compliance with the

treaty.130

UNCLOS III and Piracy

One crucial aspect of UNCLOS III was its ability to protect shipping from the lawless

acts of pirates or terrorist who look to harm trade routes and endanger lives.131 In United States v.

Ali, the court gives the definition of piracy by UNCLOS: “Piracy consists of any of the

following acts:(a) any illegal acts of violence or detention, or any act of depredation, committed

for private ends by the crew or the passengers of a private ship and directed: (i) on the high seas,

against another ship ... or against persons or property on board such ship (II) against a ship, ...

persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary

participation in the operation of a ship ... with knowledge of facts making it a pirate ship (c) any

act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”132

In United States v. Salad, a United States court dealt with a matter of piracy and

enforced UNCLOS III laws to punish the individual engaging in piracy.133 The court explained

that regardless of the binding effect of UNCLOS III itself, the government alternatively argues

that the twelve mile limit represents customary international law, and accordingly, defines the

128 Rieser et al., supra, at 32.129 Id.130 Id.131 United States v. Ali, 885 F. Supp. 2d 17, 29 (D.D.C. 2012).132 Id.133 United States v. Salad, 908 F. Supp. 2d 730, 734 (E.D. Va. 2012).

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outermost boundary of Somalia's sovereign territory.134 Customary international law comprises

“those rules that States universally abide by, or accede to, out of a sense of legal obligation and

mutual concern.”135 A treaty can constitute evidence of customary international law “if an

overwhelming majority of States have ratified the treaty, and those States uniformly and

consistently act in accordance with its principles.”136 In United States v. Salad, the court explains

that “with the exception of its deep seabed mining provisions, the United States has consistently

accepted UNCLOS III as customary international law for more than twenty-five years.”137 This

case relates to the United States joining the treaty because the American court system has been

applying the rules and international norms of UNCLOS III.

In United States v. Dire, pirates off the coast of Somalia attempted to rob a merchant

ship.138 Instead attacked the American warship USS Nicholas. 139 The pirates claimed that they

did not commit piracy because they did not rob the ship because they were arrested swiftly after

they attacked the USS Nicholas.140 The court disagreed stating that the definition of piracy under

the law of nations, at the time of the defendants' attack on the USS Nicholas and continuing

today, had for decades encompassed their violent conduct.141 That definition, spelled out in

UNCLOS III, as well as the High Seas Convention before it, has only been reaffirmed in recent

years as nations around the world have banded together to combat the escalating scourge of

piracy.142

134 Id.135 Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003).136 Id. at 256.137 United States v. Hasan, 747 F.Supp.2d 599, 635 (E.D. Va. 2010).138 United States v. Dire, 680 F.3d 446 (4th Cir. 2012).139 Id.140 Id. at 451.141 Id. at 469.142 Id.

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United States v. Dire, also stated that UNCLOS III should apply because customary

international law is enhanced by the fact that the states parties to it include all of the countries

bordering the Indian Ocean on the east coast of Africa; where the incident in the instant case was

alleged to have taken place.143 Also significant in determining whether UNCLOS III constitutes

sufficient proof of a norm of customary international law is the fact that both the United States

and Somalia, two countries that clearly have an influence on the piracy issue, have each ratified,

and thus accepted, a treaty containing the exact same definition of general piracy.144

Moreover, although the definition of general piracy provided by the High Seas

Convention and UNCLOS III is not nearly as succinct as “robbery on the sea,” the definitions are

not merely general aspirational statements. They are specific enumerations of the elements of

piracy reflecting the modern consensus view of international law.145 Accordingly, UNCLOS III's

definition of general piracy has a norm-creating character and reflects an existing norm of

customary international law that is binding on even those nations that are not a party to the

Convention, including the United States.146

IV. CASTING A CLAIM IN THE ARCTIC

The necessity of the treaty has come into play in the Arctic region. As a result of climate

change and associated global warming areas that were previously inhospitable territory to

become hospitable.147 The Arctic is a geographic area that includes, but is not limited to: the

North Pole and the Arctic Ocean.148 However, the Arctic contains many political entities that

have claims to various regions of the Arctic including the United States, Iceland, Norway, 143 Id. at 462.144 Id. 145 Id.146 Id.147 Kolcz-Ryan, supra, at 149.148 Rieser et al., supra, at 52.

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Sweden, Finland, Denmark, Canada, and Russia.149 All of these countries have a desire to acquire

the oil-rich continental shelf that are now being uncovered through the process of global

warming.150 According to the U.S. Geological Survey estimations, the Arctic Ocean’s seabed

may hold vast reserves of oil and natural gas-up to 25% of the world’s undiscovered reserves.151

UNCLOS III is the primary legal authority in the Arctic region and covers how the

resources may be claimed.152 With the bulk of major powers using the convention to stake

claims to resources the United States interests maybe compromised.153 UNCLOS III gives

nations different avenues for dispute resolution that includes an International Tribunal for the

Law of the Sea, International Court of Justice (Hague, Netherlands. An arbitral tribunal (Annex

VII) a special arbitral tribunal.154 These new avenues for dispute resolution will help resolve

territorial disputes in the oceans; the United States has many interests in the Arctic, it would be

likely that if the United States were to join the treaty it would have to litigate its claims through

one of these courts.

Under the treaty Russia, Norway, Denmark, and Canada could claim resources above and

below the Arctic Ocean floor up to two hundred miles from their shorelines.155 In addition, each

country, can extend their original application to include three hundred and fifty miles from shore

if they can prove that it is part of their continental shelf.156 The stability of determining which

country has a legal claim to the resources in the Arctic will have massive implications on their

respective countries and the rest of the world.157 The world runs primarily on fossil fuels, which 149 Kolcz-Ryan, supra, at 151.150 Rieser et al., supra, at 70.151 Kolcz-Ryan, supra, at 149.152 Rieser et al., supra, at 70.153 Id. 154 Kolcz-Ryan, supra, at 159-160.155 Id. at 149.156 Id.157 Id. at 152.

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the world has in limited supply. If the counties that have legitimate claims to oil exploration

could extract this oil, the resulting surplus, would help the energy market.158 Furthermore, with

the unpredictability of the Middle East, the markets are in need of the security, which the treaty

offers; and as a result of nations joining would guarantee the uninterrupted supply of crude oil to

the world.159

An influx of vast mineral resources would help keep the international economy

growing.160 Countries like Denmark and Norway have already filed claims asserting jurisdiction

over the continental shelf continuous from their shorelines.161 Even the United States is

conducting a mission around Alaska to collect evidence to show its continental shelf spreads far

into the Arctic.162 However, United States may not be permitted to submit its claim for

consideration.163 Thus, the United States may be left behind by countries, like Russia, who is

taking full advantage of the treaty and have presented its claims to the Commission claiming far

reaches of its Continental Shelf.164 All of these nations stand to gain considerable resources in

this region as a result of their compliance with the treaty.165

Many in Washington D.C. can see that the United States refusal to join the treaty may

cause the United States to lose its ability to remain competitive in the energy sector.166 Secretary

of State, Hilary Clinton, feels there is a great urgency to join the treaty.167 Failure to join could

prevent significant contributions to American energy independence, and increase security

158 Id. 159 Id.160 Id. at 167.161 Id. at 154.162 Rieser et al., supra, at 52.163 Id. at 70.164 Kolcz-Ryan, supra, at 153.165 Id.166 Rieser et al., supra, at 69-70.167 Id.

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threats.168 Thus, the best way to guarantee access to the Arctic's resources and to protect other

economic and non-economic interests is for the United States to become a member of the

Convention.169

Through the process of global warming in the area of the Arctic, which is currently

experiencing climate change, according to scientists, would become ice free in the summer

season.170 This changing Arctic has all kinds of implications for the world itself. Surprisingly, the

warming of the Arctic will have some positive impact for nations that have sovereign claims in

the Arctic region.171 An Arctic that was mostly ice-free in the summer would allow new trade

routes that would cut sailing time for many vessels dramatically.172

The Arctic region has vast resources that include at least thirteen percent of global

undiscovered oil reserves.173 These vast resources of natural gas would rival that leading exporter

of natural gas in the order Russia.174 With the Arctic’s proximity to Europe, Asia, and North

America, resources would be much closer to the main consumers of fossil fuels such as the

United States, Europe, Russia, and China. Thus, without long distances to travel the costs of

shipping would decline. With the opening of new sea routes in the Arctic, the transportation

costs would help make these operations more economically feasible.175

When a nation state joins the treaty that country has ten years to make a claim to extend

its two hundred mile zone; however, to make further claims that nation state must show that their

168 Kolcz-Ryan, supra, at 150.169 Id.170 Id. at 152.171 Id.172 Id.173 Id.174 Id.175 Id. at 150.

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claim spreads from their continental shelf.176 Presently, no government owns the North Pole

because that region along with the Arctic Ocean around it is in international waters. Countries

that have currently made claims after signing the treaty include Russia, Canada, Norway, and

Denmark.177 In order for a country to make a submission on a claim, that state must make a

report to the Secretary General of the Commission to show that their continental shelf extends

out further than their current claim.178

Canada is wasting little time to use the benefits of the treaty to expand its current claims

and to tap into the abundant resources of the Arctic.179 The United States is worried about Canada

forcing United States ships and oil companies out of the region.180 Evidence of Canada

expanding its claim comes with the nation submitting its claim that its continental shelf spreads

past its current 200 mile limit.181 In addition, Canada has joined forces with Denmark to conduct

an expedition aimed at finding evidence establishing that the Lomonosov Ridge is an extension

of Canada’s and Denmark’s continental shelf.182

The United States for its part argues that the waters that Canada claims, the Northern

Passage in the Arctic, are international waters and therefore navigable for a nation. If the United

States does not want to lose its rights in the Arctic, it is urgent that the United States join the

treaty because it cannot submit its claims otherwise.183 Canada has started to tighten its control of

the Northern Passage by adding stricter registration on the ships that pass through.184. One such

requirement is that any ship that is sailing through the Canadian Arctic will now have to report to 176 Id. at 153.177 Id. at 149.178 Id.179 Rieser et al., supra, at 70.180 Kolcz-Ryan, supra, at 154.181 Id.182 Id.183 Id.184 Id.

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the Canadian Coast Guard.185 If the United States does not join the treaty quickly and object to

these Canadian claims American companies could lose out to Canadian companies in obtaining

Arctic resources.

Canada is not the only government that has made an official submission to the

Commission to extend its territorial waters.186 Denmark has joined Canada in an effort to show

proof that both of their claims are related to the continental shelf which extends beyond their two

hundred mile limit.187 Even Norway has already submitted its evidence to the Commission that

its continental shelf extends past the 200 mile limit.188 However, not all of these claims are being

submitted without opposition. The Russian Federation has argued that Canada and Denmark are

wrong about their claims and that the area in question, the Lomonosov Ridge, is linked to Siberia

and not connected to either Greenland or Canada.189 However, since the three arguing parties are

members of the treaty, it will be facts and the rule of law that will decide, not warfare.190

V. THE SO CALLED NEGATIVES

Many Senators argue that the Convention would set a dangerous precedent relinquishing

United States sovereignty.191 However, the treaty would not be the first example of the United

States joining an international treaty or organization. The United States has many maritime

treaties with other nations; for example, the United States was one of the founding members of

the United Nations which is a huge international organization.

185 Id. 186 Id.187 Id. at 156.188 Id. at 155.189 Id. at 153.190 Id.191 Zitter, supra, at 109.

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Moreover, the treaty would increase the United States sovereignty because it would

guarantee territorial rights along with adding ocean territory that the United States does not

currently have. Lastly, the fear that The United States would lose its sovereignty and rights to

these organizations because members could outvote United States and hurt American interest are

also unfounded. The United States would have veto power and would be one of the nations that

sends members to vote on critical issues insuring fairness in the process.192

Moreover, some senators argue that the United States itself already has too many

bureaucracies and the addition of an international bureaucracy would further limit our

sovereignty.193 Critics claim that such an organization would be hard to deal with because a

conflict of interests.194 The critics argue that the fees and regulations would scare away business

and cost American jobs and money.195 However, there is little evidience that the money would

not fill the coffers of some foreign bureaucracy but would be used for the paperwork and

management of giving licenses to companies to mine resources and the United States would be

able to veto anything that the bureaucracy orders or issues.196

Critics argue that the United States does not need an organization to enjoy the benefits of

the Arctic region. However, these views are shared by a minority because a majority of the

Congress do want a treaty to set the boundaries of where territorial claims may reach then

conflicts are sure to arise.197 In addition, all of the other countries in the Arctic have already

joined the treaty and as members cannot negotiate with countries outside the treaty because to do

192 Rieser et al., supra, at 27.193 Kolcz-Ryan, supra, at 164.194 Id. 195 Rieser et al., supra, at 70.196 Kolcz-Ryan, supra, at 164.197 Rieser et al., supra, at 70.

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so would render the treaty useless. If the United States wishes to send its companies to the Arctic

to gather resources, then the United States has no other option than to join the treaty.198

Furthermore, many critics argue that the United States does not need the treaty because it

is redundant, and many of its articles just follow international standards and language from

previous treaties.199 These critics would argue that the United States should just follow

international standards and make treaties with countries as it sees fit when it benefits American

interests.200 However, what it fails to realize is that the United States cannot make mini-treaties

because all the nations in the Arctic, absent the U.S, are members of the convention.201 Thus, to

make a separate treaty would violate the bylaws of UNCLOS III.202

Critics have argued for a treaty that will be all encompassing like UNCLOS III, but based

on the Antarctic Treaty System.203 They argue that this treaty would better serve American

interests because it has been working in Antarctica for decades.204 The Antarctic Treaty would

provide the countries in the Arctic with a definite rule to resolve continental shelf disputes.205

However, once a country has joined UNCLOS III then it is not possibles to join a rival treaty

because the bylaws of UNCLOS III makes it clear that member countries cannot make separate

treaties.206 Therefore, the only way for members or non-members to expand their territory in the

Arctic is to join the treaty and submit a claim to UNCLOS III for approval.207 Lastly, all other

198 Kolcz-Ryan, supra, at 167-168.199 Id. at 168.200 Id.201 Id. 202 Id.203 Id. at 167.204 Id.205 Id.206 Id. at 168.207 Id.

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countries in the Arctic are just not interested in breaking the treaty, to make a separate treaty, for

the purposes of appeasing the United States.208

Moreover, the critics of the treaty are incorrect when they assert that existing treaties

already cover the majority of the topics in the Arctic.209 The convention fills in gaps that the

international law has and creates new laws and norms that leave much old law obsolete.210 Thus,

the United States and its companies may be breaking international law if they follow old rules

and conventions.211 It is, therefore, not unlikely that American companies would end up in

trouble with other nations by following outdated rules and regulations that are approved by the

United States.

The United States as the leading naval power and overall superpower with its

commanding navy and military would benefit greatly from open, free, and stable Arctic.212 Also,

American Companies would like to see the code that is clear and uniform.213 However, by

following old international laws and treaties that will unlikely continue. Because many nations

cannot agree upon international law because it was created by different countries with different

interests.214 Thus, countries are more likely to give treaties more respect and have restraint when

it comes to its decisions in regard to shipping and mining.215 Without a treaty, nations are risking

confrontation; they will naturally push the boundaries of unspoken rules and norms until it

208 Id.209 Id. at 171.210 Id.211 Id.212 Rieser et al., supra, at 25.213 Id. at 69.214 Kolcz-Ryan, supra, at 172.215 Id. at 171.

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conflicts with another nation’s interests that inevitably leads to conflict.216 However, UNCLOS

III offers rules that nations in the Arctic have agreed upon and therefore limits the uncertainty.217

Moreover, to limit ambiguity as stated above and with accordance of protecting the

United States’s maritime mobility not only in the Arctic but the all over the world’s oceans

America should join. The treaty will protect America's rights in marine areas, protect the

environment, protect valuable resources and finally give the United States equal power to make

choices that will affect it and the international community.218 The treaty means the United States

does not have to change its current policies in the article or give up any territory or rights that the

United States currently has. The treaty will, if anything expand American territory, power, and

rights.

VI. RECOMMENDATIONS

A. Protect United States Economic Interests

The Convention would solidify American rights over all the resources in the ocean that

are legally under America’s zone of interest.219 The Convention would take in the form of a two

hundred nautical mile EEZ off the Coast of Alaska up to three hundred fifty nautical miles if

proven that it’s part of United States’s continental shelf.220 The treaty will give America the

peace of mind of energy security because all of those resources would be under America's

dominion. Therefore, the United States must ratify the treaty for this to become a legal certainty.

The energy in the Arctic would boost the American economy with jobs and money.221 With the

216 Rieser et al., supra, at 2-3.217 Kolcz-Ryan, supra, at 173.218 Rieser et al., supra, at 24.219 Kolcz-Ryan, supra, at 173.220 Richard J. Mclaughlin, UNCLOS III and the Demise of the United States' Use of Trade Sanctions to Protect Dolphins, Sea Turtles, Whales, and Other International Marine Living Resources, 21 Ecology L.Q. 1, 37 (1994).221 Rieser et al., supra, at 69-70.

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increasing consumption of oil from developing countries like India and China; it is imperative

that the oil enter the global market to help meet the growing demand of millions of new fossil

fuel consumers.

UNCLOS III could help the United States in the fight against terrorism. With the Arctic’s

water becoming more open, because of the melting ice, there are new opportunities for terrorists

to enter the United States.222 However, with the treaty established and clear lines of the nation’s

territorial waters, the United States will be better able to enforce its waters to keep out terrorists

and others that wish the country harm.223 The job of securing the Arctic would be much harder if

the military, for instance, does not have adequate information on where America's actual

territorial waters end and where another nation's begins.224

B. Peaceful Dispute Settlement

UNCLOS III creates a useful mechanism that nations use to settle their claims through

peaceful means. Courts have expressed their wish for the United States to join the treaty because

it gives the Court clear rules to make decisions and create new case laws.225 These laws and

regulations would allow the United States to have a say and a part in its creation; giving the

United States government relaxed rules to conduct their business.226 In addition, it would also

give the United States’s companies relaxed rules and regulations that they could use to judge

their operations and businesses by in the Arctic region.227

222 Kolcz-Ryan, supra, at 172.223 Id.224 Id.225 Ali, 885 F. Supp. 2d 29226 Kolcz-Ryan, supra, at 172.227 Id.

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Lastly, if the United States does a cost-benefits analysis, of joining the treaty or not, the

United States can see a clear benefit for joining. The agreement would allow the United States,

along with other countries, a way to legally claim Arctic resources.228 The United States would

be able to expand its presence in the Arctic via the treaty.229 The United States would be able to

apply the law of the convention to settle disputes; thus, allowing the United States to avoid war

because of natural resources.230 In addition, the Convention would allow the United States to

solve certain disputes outside the convention protecting America’s sovereignty; such disputes

omitted from the Convention would be some of America’s military activity. However, if the

United States keeps its path of isolation, then the United States would lose the great wealth in the

Arctic.231 In addition, the United States could lose its chance to have trade routes in the Arctic.232

As the global climate is warming up, quickly leading to ice-free summers in the Arctic

Ocean; Arctic nations are confronting the prospect of new rights over the Arctic’s vast natural

resources.233 All Arctic nations-Canada, Denmark, Norway, Russia-except for the United States,

ratified the Convention and have already submitted, or are preparing to submit, proposed limits

for their extended continental shelves to the Commission.234 The submissions will enable these

countries to obtain international recognition over their extended continental shelves in the Arctic,

including exclusive rights over oil and gas reserves.

C. Potential Solution

228 Kolcz-Ryan, supra, at 149.229 Id.230 Id. at 172.231 Id.232 Id.233 Id. at 152.234 Id. at 149.

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As a nation with a far-reaching coastline and a continental shelf along with large oil and

gas reserves, the United States has much more to gain than lose from joining the Convention.235

The support for the treaty is apparent in the United States with the President, both houses of

Congress, the Military, and American business men and women supporting it.236 UNCLOS III is

clear customary law, out of one hundred and ninety-three members of the United Nations the

vast majority, One hundred and sixty to be exact, have already joined.237 Furthermore, the

uncertainties stemming from using old outdated treaties, which many countries are abandoning,

makes America vulnerable to uncertainty and conflict. In addition, the treaty would help manage

and protect resources not just for the United States but for the world at large which helps keep

pollution down. Finally, it is only through a treaty such as UNCLOS III that can protect the

United States interest and safeguard all nations from cross-claims and the uncertainty of

lawlessness. The best way to guarantee American competitiveness and prosperity in an ever

changing world is to join UNCLOS III, which protects American rights.

CONCLUSION

The world is changing at an astronomical rate with the world’s population souring and

the resulting greater demand for natural resources the United States would do well if it adapted to

these changing circumstances and not look to the past. To confront these changes the world

needs to come together to better manage and protect its natural resources. UNCLOS III would

help because of its rules and regulations regarding maritime resources. This would be an

important tool in helping the United States stay competitive and safe in this changing world; to

put it simply the United States should join.

235jo Rieser et al., supra, 25.236 Id. at 69-70.237 Id. at 25.

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