Salt and Fresh: UNCLOS, the Great Undersea Land Grab, and Water, Water Everywhere?
UNCLOS' May 13th deadline for Contiguous Seabed Claims Looms and the Great Lakes Basin Compact Applauds Federal Funding
LexisNexis Legal Editor/Site Coordinator LexisNexis International & Foreign Law Center
We are rapidly approaching the deadline for nations to stake their claims to their contiguous seabeds beyond the 200 mile Exclusive Economic Zone (“EEZ”). Based on the terms of the United Nations Convention on the Law of the Sea (UNCLOS) Article 76, nations having contiguous seabed beyond their previously established EEZ have until May 13, 2009 to pass a law defining its baselines and provide supporting scientific data within a period of ten years from May 13, 1999.
According to the Division of Ocean Affairs and the Law of the Sea, the measurements and the associated economic benefits expected to be derived that are established in the Convention, can be explained as follows:
“In cases where the continental margin extends further than 200 miles, nations may claim jurisdiction up to 350 miles from the baseline or 100 miles from the 2,500 metre depth, depending on certain criteria such as the thickness of sedimentary deposits. These rights would not affect the legal status of the waters or that of the airspace above the continental shelf.
“ To counterbalance the continental shelf extensions, coastal States must also contribute to a system of sharing the revenue derived from the exploitation of mineral resources beyond 200 miles. These payments or contributions - from which developing countries that are net importers of the mineral in question are exempt - are to be equitably distributed among States parties to the Convention through the International Seabed Authority.
While the ratification of UNCLOS has been much debated and stalled in the halls of United States Congress, the Bush Administration was, and the Obama Administration is, in favor of its ratification. The US is a signatory of UNCLOS, but its ratification has been a matter of contention for decades. Ratification will subject the US to the jurisdiction of ITLOS, the International Tribunal for the law of the Sea, the special international tribunal established by UNCLOS to resolve disputes arising among nations under the Convention. Some see this as a further surrender of US sovereignty and a means to subject the US and its interests to undue accusations and “Yankee-bashing” by other nations motivated perhaps by ideological rather than essential environmental reasons. Objections based on threats to US national security have by now been exhausted; the Convention assures the right of peaceful passage, and incidents like the recent China-US submarine challenges will continue to happen regardless of the US ratification of UNCLOS, and the US military has long been in favor of ratification as it will establish clear rules, boundaries, and guidelines that other nations will have to respect as well.
The other principal factors in favor of ratification are the increase in environmental protection of the oceans under the International Seabed Authorities mandate, peaceful means of dispute resolution through ITLOS, and the advantages to American businesses given the huge territory (one of the largest of all possible in the world) that the US will be able to claim as its contiguous seabed.
Opposition is largely focused on nationalist issues – that the US would not have full control and decision-making authority over funds derived from mining, that “non-US environmental groups” could dictate policy to the US (if you believe that the US environment is unconnected with the global environment, you’ll like these folks, who think we live in an exclusive US cocoon where there is only US air, US water, etc.), that there will be taxation without representation (an inchoate, poorly explained threat), or a threat to appropriation by eminent domain to intellectual property found or used in the contiguous zone by the UN authorities. These points of opposition do not appear substantial and can thrive only in the closed minds of nationalists (do they really think that the US will not protect the intellectual property rights of its patentees?).
By any measure the US has more to gain by finally ratifying UNCLOS than by remaining outside the international legal regime – if anything, it is more likely to be disadvantaged by remaining as an outsider. Is it time for Congress to ratify?
Closer to home and less salty, the Great Lakes Basin Commission has been working steadily to protect what is arguably the US’s greatest fresh water resource from both pollution and commercial diversion. In a recent press release from the GLBC concerning the American Recovery Act, “As the Great Lakes go, so goes the national policy as to water,” said Lisa Jackson, administrator of the U.S. Environmental Protection Agency speaking on February 24, 2009 at the semiannual meeting of the Great Lakes Commission in Washington, D.C.
Jackson noted that President Barack Obama established his commitment to Great Lakes protection early in his campaign and continues to demonstrate that commitment through such legislative vehicles as the American Recovery Act, the recently passed stimulus bill.
“We look at the Act as extremely important to restoring infrastructure,” she said.
The Great Lakes Commission, chaired by Gov. Patrick Quinn (Ill.), is an interstate compact agency established under state and U.S. federal law. It is dedicated to promoting a strong economy, healthy environment and high quality of life for the Great Lakes-St. Lawrence region and its residents. The Commission consists of governors' appointees, state legislators, and agency officials from its eight member states. Associate membership for Ontario and Québec was established through the signing of a "Declaration of Partnership." The Commission maintains a formal Observer program involving U.S. and Canadian federal agencies, tribal authorities, bi-national agencies and other regional interests. The Commission offices are located in Ann Arbor, Michigan.
What is especially intriguing about the GLBC’s activities from a public international legal point of view is that as a interstate compact agency with foreign participation, it is equipped to establish effective cross-border environmental cooperation below the national level by cooperation of all its members.
Among its goals are:
- The creation of the Great Lakes-St. Lawrence River Basin Water Resources Council, consisting of the Governors of the eight Great Lakes states;
- The creation of a water resources inventory by each member state;
- Periodic assessments of cumulative impacts of water withdrawals from the Basin;
- A prohibition on most new and increased diversions of water from the Basin;
- Registration of water withdrawals in amounts of 100,000 gallons per day (gpd) or greater from the Basin in any 30-day period, and certain regulated diversions of Basin water;
- Implementation of water conservation and efficiency programs by each member state relating to Basin water uses;
- Commitments by member states to promote environmentally sound and economically feasible water conservation measures;
- Consultation between the Great Lakes Council and the Provinces of Ontario and Quebec through “regional review” procedures for any new or increased consumptive uses of at least 5 million gpd in any 90-day period; and
- Preservation of existing diversions, withdrawals, uses, rights and agreements.
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The GLBC has also begun to develop a Wind Compact, given the clear connection between the vast open spaces about the waters of the Great Lakes.
Diversions are the single biggest threat to the Great Lakes ecosystem. Golf courses in drought–prone areas eye lustfully the Great Lakes as pond for their own plundering to keep their greens green. And many have the green to make diversions of water by the tanker-loads happen. Yet massive reductions in the water levels of the Great Lakes due to other climatological reasons are already being apparent and measured. How this cross-border regional Compact will rally its members around the defense of their precious natural resources presents an intriguing modern variant of a regional entity composed of cross-border non-sovereign territorial authorities acting together under the radar of public international law.