Who Rules the Waves?

24 October 2007 (Last Updated October 24th, 2007 18:30)

The US senate is preparing to vote on whether or not to ratify the UN's Convention on the Law of the Sea (UNCLOS). Paul French examines the history of the treaty and finds out why it's just become one of the most important pieces of legislation in the world.

Who Rules the Waves?
When Russia planted a rustproof titanium version of its national flag on the seabed under the North Pole in August 2007, they transformed a hitherto unheralded piece of legislation, the UN’s Convention on the Law of the Sea (UNCLOS), into one of the most important treaties in the world.

When Russia planted a rustproof titanium version of its national flag on the seabed under the North Pole in August 2007, they didn't just break the diving record with their 4,200m plunge into the Arctic Ocean. They transformed a hitherto unheralded piece of legislation, the UN's Convention on the Law of the Sea (UNCLOS), into one of the most important treaties in the world.

UNCLOS, or The Law of the Sea, will be used to determine who gets what in the climate change-driven scramble for sovereignty under the Arctic. The law will dictate which countries will be allowed to mine the suspected plethora of lucrative minerals currently sitting untapped and unaccessible to man until global warming came along.

The Law of the Sea's weakness has always been its relationship with the US. Since it was drawn up in 1982, the law that governs 70% of the world's surface has failed to garner the official support of the world's most powerful nation.

President Reagan refused to sign it and, although President Clinton did sign it, he failed to get it through the Senate.

Now things could be set to change. President Bush came out in support of the treaty in May and the Senate will vote again this autumn on whether to ratify. So what, exactly, does the law cover? Will the US finally become part of UNCLOS? Or, perhaps more pertinently, can it afford not to?

UNCLOS HISTORY

Considering the fact that 70% of the world's surface is covered by ocean it is staggering that a widely-accepted, modern-thinking way of governing the seas was not drawn up until 1982 and did not actually come into force until 1994.

Historically, the world was governed by the 'freedom of the seas' concept, which meant that every nation 'owned' the sea up to three nautical miles away from its coastline. Everything else was considered to be international waters – free to all everyone but belonging to no one.

"Russia broke the diving record with their 4,200m plunge into the Arctic Ocean."

In the early 20th century, as ideas like protecting fish stocks, guarding against pollution and the potential to farm underground mineral resources came to prominence; some nations began to increase their areas of sovereignty. By the late 1950s governance of the seas was a mess: some nations were still sticking to the 3nm area, others were using 12nm and some like Argentina and Ecuador claimed a whopping 200nm limit.

To try and make some sense of the madness, the United Nations held a conference on the Law of the Sea in Geneva, Switzerland, in 1956. Some treaties were signed, including one dealing with protecting fish stocks, but the first conference and the one that followed in 1960 were largely unsuccessful in solving the problems of the sea.

However, the third conference, which began in New York in 1973 and rumbled on until 1982, was a different matter entirely. Finally, the world settled on a set of laws to govern its oceans.

WHAT IS THE LAW?

The Law Of the Sea, as set out in UNCLOS III, establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas. In addition, the law sets guidelines for 'ownership' of the sea.

A nation can set laws, regulate use and use any resource from the sea up to 12nm from its coastal baseline. 'Innocent passage' gives vessels the right to travel through territorial waters with strategic straights as long as they are not fishing, polluting, spying or practicing with their weapons.

"The law that governs 70% of the world's surface has failed to garner the official support of the US."

An area of 200nm from a nation's baseline was declared its exclusive economic zone (EEZ). Within that zone, the coastal nation has sole exploitation rights over all natural resources.

A continental shelf is defined as natural prolongation of the land territory to the continental margin's outer edge, or 200nm from the coastal state's baseline, whichever is greater. Countries have the right to harvest mineral and non-living material in the subsoil of their continental shelf, to the exclusion of others.

Part XI of the convention is the controversial annexe of the treaty. It states that the International Seabed Authority (ISA) should authorise exploration and mining and collect and distribute any royalties gained from mining seabed minerals outside any state's territorial waters or EEZ.

US OBJECTIONS

When UNCLOS was opened for signature in 1982, the US was the only major nation that refused to sign. Largely on the grounds of the seabed mining provisions set out in Part XI, President Reagan felt that treaty was a socialist trap, part of a UN ploy to siphon funds from the richer nations and distribute them to the third world.

In 1994 the treaty was amended, acquiescing to US concerns, so that limitations of seabed mining and mandatory technology transfer were dropped from the statute. In addition the US was guaranteed that, if they joined UNCLOS it would be guaranteed a seat on the council of the International Seabed Authority. President Clinton gave the go ahead for the US to sign the treaty, but the Senate has so far refused to ratify it.

"By the late 1950s governance of the seas was a mess."

With the treaty set to go before the Senate this autumn, debate is raging once again as to whether the US should ratify. Support for ratification comes from a diverse range of groups including the Bush administration, The Nature Conservancy and Exxon Mobil Corp who variously point to environmental, national security and business benefits to being part of UNCLOS.

On the other side of the fence, conservatives point to a lack of control over funding, a threat to national sovereignty and harm to existing military operations as reasons not to ratify.

WILL THEY OR WON'T THEY?

"Yes, the Senate will consent this time," says John Norton Moore, professor of law at the Centre for Oceans Law and Policy in Virginia. "Not only are specific arguments advanced against the treaty wrong, but even more importantly, the critics ignore the powerful reasons for United States adherence.

As Senators consider advice and consent they might want to ask who they trust more for national security advice – every chairman of the joint chiefs, the combatant commanders of our united geographic commands and the consistent view of the Navy since the Nixon Administration, or those few who admittedly are not naval, oceans, or international law experts."

Whether the US finally agrees to ratify the treaty or not, there's no doubt that UNCLOS will have a massive impact on the way the world is shaped in the future. With polar ice caps melting due to climate change, a huge swathe of natural resources could be open to mining under the Arctic Ocean.

"A nation can set laws, regulate use and use any resource from the sea up to 12nm from its coastal baseline."

That is why the Russians planted a flag under the North Pole: to lay claim to the suspected vats of oil, gas and mineral reserves currently sitting around waiting to be mined.

The Russians believe an underwater shelf known as the Lomonosov Ridge is an extension of its continental territory, giving them rights to mine the resources under the terms of UNCLOS.

The US, Canada and Denmark, who also border the Arctic, have launched similar claims on the territory.

"Being a party to the convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict and aligning expectations of behaviour at sea," says Norton Moore. "Without adherence to the treaty America will simply lose its deep seabed mine sites, the best in the world, and our seabed mining industry will be permanently deep-sixed."