CFR Report Uses Climate Change, Piracy & Continental Shelf as Bogeymen to Promote UNCLOS Ratification Without Congressional Hearings

http://www.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf

The National Interest and the Law of the Sea


By


Scott G. Borgerson


Council on Foreign Relations Special Report No. 46


May 2009


Foreword

..."Among other things, the report argues, accession to the convention would secure rights for U.S. commercial and naval ships, boost the competitiveness of American firms in activities at sea, and increase U.S. influence in important policy decisions, such as adjudications of national claims to potentially resource-rich sections of the continental shelf."


...Richard N. Haass
President
Council on Foreign Relations
May 2009


[THIS REPORT MAKES A SERIES OF UNSUBSTANTIATED CLAIMS THAT CAN BE EASILY DEBUNKED AS 'MYTHS'.]


[The only UNCLOS truth which the CFR Report speaks about is that set forth immediately below. Otherwise, there are at least 3 UNCLOS Myths they have promoted.]


" UNCLOS ENVIRONMENTAL" TRUTH

"Protection of the marine environment was a core U.S. objective during the Law of the Sea negotiations...The convention’s living-resources articles create a framework for international cooperation in the sustainable management of fish stocks and the conservation of marine mammals...The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles... create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life." (pp. 29-30)


[CFR Report MYTH #1]


"Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention."


"Oceans are among the first casualties of increased greenhouse-gas emissions. In preindustrial times, the oceans released an amount of carbon that roughly equaled the quantity they absorbed. But with rising levels of atmospheric CO2, the seas are being asked to absorb more carbon than ever before, a process that has already increased the acidity of ocean surface waters by approximately 30 percent.21 It is projected that global surface pH will decrease by a further 40 percent to 120 percent by the end of the century,22 at which point the amount of CO2 in the ocean will exceed levels seen at any time in the last three hundred million years."


"Strategic Imperatives"


"Acidification carries with it the potential to devastate ocean ecosystems. 23 It will deprive marine animals of access to the calcium carbonate many of them require, weakening the formation of calcium carbonate shells. Commercially fished species that will be directly affected include corals, mussels, oysters, lobsters, and crabs. More important, however, is the likely impact on many species of small planktonic plants and animals that are crucial to marine food webs. In short, acidification has the potential to transform ocean life, and its impact is already being felt by America’s marine environment."


"A related consequence of climate change is ocean warming. The absorption by the ocean of excess heat in the atmosphere elevated ocean temperatures in the upper 700 meters by 0.1 degree Celsius between 1961 and 2003.24 That ostensibly small temperature rise over such a vast expanse of water is, in fact, potentially devastating not only to ocean life but to life in general, because of the role ocean temperature plays in driving the planet’s climate. The oceans store huge amounts of heat and distribute it across the globe. Even small changes in ocean temperature will have consequences for how that process occurs. As the oceans continue to warm, both the frequency and the intensity of hurricanes are predicted to increase. Scientists also predict more extreme maximum temperatures and more frequent heavy precipitation.25"


"Change is happening most rapidly, and can be seen most vividly, in the Arctic. The Arctic Ocean is the least understood of all the world’s oceans, but we know it is warming at approximately twice the rate of the rest of the oceans. That is causing the rapid retreat of Arctic sea ice. In September 2007, the minimum ice extent at the end of summer was 23 percent lower than what it had been in 2005, the previous record low, and 50 percent lower than was typical in the 1950s through the 1970s.26 Scientists from the National Snow and Ice Data Center and the National Center for Atmospheric Research have found that Arctic sea ice is melting even faster than models have projected, giving rise to predictions that the Arctic might be seasonally ice free as soon as 2013, and possibly earlier. Such rapid change will lead to the local loss—or, in some cases, complete extinction—of certain Arctic species. Ice-associated marine algae and amphipods provide the base of the unique food web that includes a rich variety of invertebrates, fish, and birds. Ice-dependent ocean mammals, such as bowhead whales, narwhals, polar bears, ringed seals, and walruses, will also be directly affected by loss of habitat. The changes in the extent of Arctic sea ice will also have profound consequences for the world’s climate, increasing the retention of solar heat and reducing the vital temperature gradient between the warmer tropics and colder polar regions, thus altering ocean currents and weather patterns throughout the Northern Hemisphere."


"Attempts to mitigate climate change are the subject of separate international discussions. There is a strong argument to be made that acceding to the Law of the Sea Convention would strengthen America’s diplomatic hand in those negotiations. Quite apart from that, however, the far-reaching changes to ocean ecosystems that are occurring as a result of climate change provide an answer to the question “Why now?” Full U.S. participation in the convention is vital as the international community adjusts to a rapidly changing ocean environment. The need to find ways to help humankind adapt to a changing climate will become increasingly important. Efforts to restore the natural resilience of marine ecosystems and species through their protection, maintenance, and restoration will be a central part of that effort. Given the geopolitical context of the Arctic region, U.S. leadership will be crucial."


"The Arctic offers a particularly sobering environmental imperative. As its ecosystem comes under increasing strain from climate change, melting sea ice will expose it to unprecedented pressures that will accompany increased human access. Concerted international engagement to ensure effective and integrated ecosystem-based management of human activities in the Arctic is essential. Acceding to the convention would help the United States advance new governance initiatives in this important region, such as shipping-traffic schemes through the Bering Strait, coordinated sea route authorities, and possibly even the establishment of a marine scientific park at the North Pole. The convention provides solid legal bedrock on which to build elegant and effective governance structures for the future Arctic."


"As the Law of the Sea regime becomes more entrenched, the international organs it has created are becoming more important policymaking centers. The continued absence of the United States from this international management regime deprives the United States of the opportunity to exercise environmental leadership over nearly three quarters of the earth. Joining the convention would permit the United States to become the main force for responsible ocean stewardship at this critical juncture, rather than see the fate of the oceans determined by other players..." (CFR Report at pp. 29-32)


[UNFORTUNATELY, THIS CLAIM IS UNTRUE, AS EXPLAINED BELOW.]


[UNCLOS REALITY #1 - COUNTERING CFR REPORT]


[Apparently, during its final twenty-four months, the legacy-oriented Bush administration had sought to secure U.S. ratification of the UN Law of the Sea Convention for the alleged purpose of preserving the ocean’s critical ability to absorb atmospheric carbon dioxide. According to at least one prominent scientist who was formerly a member of the United Nations Intergovernmental Panel on Climate Change (IPCC), this effort was not only ill-advised but also without scientific foundation. "Since geologic processes ultimately determine the level of atmospheric CO2," the director of the Geological Museum at the University of Oslo, formerly an expert reviewer with the IPCC, argues that IPCC scientists must acquire the [geologic] knowledge that is central to understanding climate change ..."to avoid making fundamental mistakes"...[W]ith the advent of IPCC-influenced science, the length of time that carbon stays in the atmosphere became controversial. Climate change scientists began creating carbon cycle models to explain what they thought must be an excess of carbon dioxide in the atmosphere. These computer models calculated a long life for carbondioxide. Amazingly, the hypothetical results from climate models have trumped the real worldmeasurements of carbon dioxide’s longevity in the atmosphere. Those who claim that CO2 lasts decades or centuries have no such measurements or other physical evidence to support their claims...In the real world, as measurable by science, CO2 in the atmosphere and in the oceanreach a stable balance when the oceans contain 50 times as much CO2 as the atmosphere. "The IPCC postulates an atmospheric doubling of CO2, meaning that the oceans would need to receive 50 times more CO2 to obtain chemical equilibrium," explains Prof. Segalstad. "This total of 51 times the present amount of carbon in atmospheric CO2 exceeds the known reserves of fossil carbon—it represents more carbon than exists in all the coal, gas, and oil that we can exploit anywhere in the world." ]


[See: Lawrence Solomon, Models Trump Measurements, CAN. FIN. POST (July 7, 2007), available at: http://www.financialpost.com/story.html?id=433b593b-6637-4a42-970b-bdef8947fa4e&p=2 ].

[We are doomed, say climate change scientists associated with United Nations Intergovernmental Panel on Climate Change, United Nations body organizing most climate change research occurring world today. Carbon dioxide man-made sources rises atmosphere then stays 50, 100, even 200 years. unprecedented buildup CO2 then traps heat would otherwise escape atmosphere, threatening us all.

"This nonsense," says Tom V. Segalstad, head Geological Museum University Oslo formerly an expert reviewer with same IPCC. He laments paucity geologic knowledge among IPCC scientists – knowledge central understanding climate change, view, since geologic processes ultimately determine level atmospheric CO2.

"The IPCC needs lesson geology avoid making fundamental mistakes," he says. "Most leading geologists, throughout world, know IPCC's view Earth processes are implausible if not impossible."

Catastrophic theories climate change depend on carbon dioxide staying atmosphere long periods time – otherwise, CO2 enveloping globe wouldn't dense enough keep heat in. Until recently, world science near-unanimous CO2 couldn't stay atmosphere more than about five 10 years because oceans' near-limitless ability absorb CO2.

"This time period has been established measurements based on natural carbon-14 readings carbon-14 nuclear weapons testing, has been established radon-222 measurements, has been established measurements solubility atmospheric gases oceans, has been established comparing isotope mass balance, has been established through other mechanisms, too, over many decades, many scientists many disciplines," says Prof. Segalstad, whose work has often relied upon such measurements.

Then, with advent IPCC-influenced science, length time carbon stays atmosphere became controversial. Climate change scientists began creating carbon cycle models explain what thought must an excess carbon dioxide atmosphere. These computer models calculated long life carbon dioxide.

Amazingly, hypothetical results climate models have trumped real world measurements carbon dioxide's longevity atmosphere. Those who claim CO2 lasts decades centuries have such measurements other physical evidence support their claims.

Neither can demonstrate various forms measurement are erroneous.

"They don't even try," says Prof. Segalstad. "They simply dismiss evidence is, intents purposes, irrefutable. Instead, substitute their faith, constructing kind science fiction fantasy world process."

In real world, measurable science, CO2 atmosphere ocean reach stable balance when oceans contain 50 times much CO2 atmosphere. "The IPCC postulates an atmospheric doubling CO2, meaning oceans would need receive 50 times more CO2 obtain chemical equilibrium," explains Prof. Segalstad. "This total 51 times present amount carbon atmospheric CO2 exceeds known reserves fossil carbon – represents more carbon than exists coal, gas, oil can explo anywhere world."

Also real world, Prof. Segalstad's isotope mass balance calculations – standard technique science – show if CO2 atmosphere had lifetime 50 200 years, claimed IPCC scientists, atmosphere would necessarily have half its current CO2 mass. Because nonsensical outcome, IPCC model postulates half CO2 must hiding somewhere, "a missing sink." Many studies have sought missing sink – Holy Grail climate science research – without success.

"It search mythical CO2 sink explain an immeasurable CO2 lifetime of hypothetical CO2 computer model purports show an impossible amount fossil fuel burning heating atmosphere," Prof. Segalstad concludes. "It [is] fiction." ].

See: Lawrence Solomon, The Deniers, Part XXIX: Models Trump Measurements, Urban Renaissance Institute website, accessible at: http://www.urban-renaissance.org/urbanren/index.cfm?DSP=content&ContentID=17666 . Lawrence Solomon is executive director of Urban Renaissance Institute Consumer Policy Institute, divisions Energy Probe Research Foundation].

[CFR REPORT MYTH #2]


"HOW REMAINING OUTSIDE THE CONVENTION DAMAGES U.S. NATIONAL INTERESTS"

"... The convention provides two essential and immediate components for responding to piracy off the coast of Somalia. First, the convention permits any state to arrest pirates, seize pirate vessels, and prosecute pirates in the courts of the interdicting naval authority. Second, and equally important, the convention protects the sovereign rights of ocean-going states that participate in antipiracy naval operations in the territorial seas of failed states such as Somalia. This is critical for building international naval flotillas for combating the growing pirate problem in the Indian Ocean..." (CFR Report at p. 33)

[UNCLOS REALITY #2 - COUNTERING CFR REPORT]

THE UNCLOS DOES NOT PROVIDE THE ESSENTIAL & IMMEDIATE COMPONENTS FOR [ADEQUATELY] RESPONDING TO PIRACY OFFSHORE']

["Article 110 of the U.N.'s Law of the Sea Convention -- ratified by most nations, but not by the U.S. -- enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates. A recent U.N. Security Council resolution allows foreign navies to pursue pirates into Somali waters -- provided Somalia's tottering government agrees -- but the resolution expires next week. As for the idea of laying waste, Stephen Decatur-like, to the pirate's prospering capital port city of Eyl, this too would require U.N. authorization. Yesterday [November 24, 2008], a shippers' organization asked NATO to blockade the Somali coast. NATO promptly declined".].


[See: BRET STEPHENS, Why Don't We Hang Pirates Anymore?, Wall Street Journal Op-ed (Nov. 25, 2008) at: http://online.wsj.com/article/SB122757123487054681.html?mod=djemEditorialPage ].


["[T]he navies say it is virtually impossible to patrol the vast sea around the gulf. NATO has ruled out a blockade. 'Blocking ports is not contemplated by NATO,' said NATO Secretary General Jaap de Hoop Scheffer in Brussels. U.N. Security Council resolutions 'do not include these kind of actions and as far as NATO is concerned, this is at the moment not on the cards,' he said..."]

[See: EILEEN NG, NATO Rejects Call for Blockade Along Somali Coast, Associated Press (Nov. 24, 2008) accessible at: ITSSD Journal on the UN Law of the Sea Convention (Nov. 2008) at: http://itssdjournalunclos-lost.blogspot.com/2008/11/futility-of-relying-upon-unclos-to.html ].

["'The authorities these days have a real problem because of international law...As in the days of the Caribbean pirates, everything is on the pirates' side'. says Dr David Cordingly Maritime writer."

"These days, there is no question of a bombardment of the port of Eyl, the main pirate base on the Somali coast. That might be the most effective response but it would require a UN Security Council resolution."

"There is a resolution (1838, passed in October [2008]) which authorises the use of 'necessary means', meaning force if need be, to stop piracy in international waters. There is also another resolution (1816) which allows anti-pirate operations within Somali waters, but only with the agreement of the Somali transitional government. But even all these operations have to be conducted within international law, defined in this case as the provisions of the UN Law of the Sea Convention."

"The Law of the Sea Convention places limitations on daring action. Under Article 100 of the convention a warship has first to send an officer-led party to board a suspected pirate ship to verify any suspicions."


"The warship cannot just open fire. Any inspection has to be carried out 'with all possible consideration'. That sounds rather tentative...'The authorities these days have a real problem because of international law. There are measures ship owners can take like having fire hoses to aim at the pirates, acoustic devices to hurt their hearing or electric fences but, as in the days of the Caribbean pirates, everything is on the pirates' side".]

[See Paul Reynolds, Rules Frustrate Anti-Piracy Efforts, BBC News (Nov. 19, 2008) at: http://news.bbc.co.uk/2/hi/africa/7735144.stm .]


["Summary - Articles 100 to 107 of the 1982 Convention merely allow the community of states to take police action at sea but not to prosecute offences. On the high seas, this right is reserved for the individual states and based on their national law."

"The 1982 Convention in itself is not sufficient to ensure adequate protection against piracy. Since the offence is restricted to the high seas, many cases do not qualify as piracy, for some 80% of all attacks occur in territorial waters and in ports."

"A further shortcoming of the 1982 Convention is that an attack only qualifies as piracy according to the Convention’s own definition if it is committed for “private purposes”. The rights of intervention granted by the 1982 Convention therefore do not encompass the growing number of terrorist acts."

"Furthermore, Article 100 of the 1982 Convention obliges the states to work together in the fight against piracy. That, however, does not mean that the states are under any obligation to incorporate standards penalising piracy in their legal systems."

"The term 'piracy' was defined by the Geneva Convention on the High Seas in 1958. This definition was adopted by the 1982 [UN] Convention [on the Law of the Sea UNCLOS]."

"For acts of violence against ships, persons, or property on board to be classified as piracy in accordance with Articles 101 and 102 of the 1982 Convention, the following conditions must all be met simultaneously:

The act of violence must be:

– committed by the crew or passengers of another vessel,

– illegal and serve private purposes,

– and it must be committed on the high seas or at a place not subject to state sovereignty."

"Article 101 of the 1982 Convention defines the act of piracy very narrowly. Politically motivated acts, such as terrorist attacks, are not included according to the 1982 Convention."

"The definition is unclear on the meaning of the word 'illegal'. It is left to the courts of the prosecuting countries to decide whether the act is to be designated “illegal” according to international law or according to the national law of the prosecuting countries."

"...Right of intervention against piracy"

"Article 110 of the 1982 Convention...grants warships the right to stop other vessels for the purpose of verifying their right to fly a flag. However, this is not a general right. It must be based on certain reasons, such as the suspicion of piracy, slave trading, or statelessness. The warship may send a so-called boarding team on board the stopped vessel in order to verify its right to fly the flag. The vessel may be searched if the suspicion is confirmed after inspecting the ship’s papers (Article 110, paragraph 2, 1982 Convention). When exercising this right, however, the commanding officers must remember that, if the suspicion proves to be unfounded, Article 110, paragraph 3 of the 1982 Convention stipulates that the shipping company be reimbursed for all losses incurred."

"...According to the first sentence of Article 105 of the 1982 Convention, every state may take action against pirates (arrest and seizure) at any time in international waters (= high seas and waters not controlled by any state)."

"The second sentence of Article 105 states that the courts of the state which has seized the vessel (i.e. whose colours are being flown) can also decide on the penalties to be imposed and on the action to be taken with regard to the vessel or property..."

"...At the same time, Article 105 of the 1982 Convention specifies that a pirate ship cannot be pursued further once it has reached national waters."

"Article 107 of the 1982 Convention, however, restricts the right of such intervention in international waters to warships or 'other ships which are clearly marked and identifiable as being on government service and are authorized to that effect'.

– Exception: 'consent of the flag state'..."

[See: Munich Re Group ((c) 2006), Piracy - Threat at Sea: A Risk Analysis, at pp. 24-27, accessible online at: http://www.munichre.com/publications/302-05053_en.pdf . ]

[THERE IS ACTUALLY A BETTER LEGAL INSTRUMENT, BUT IT, TOO, HAS LIMITATIONS. - The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1988 (SUA Convention)]

["...The purpose of the SUA Convention was to fill the loopholes of the 1982 Convention. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was signed in Rome on 10 March 1988 and was prompted by the Achille Lauro incident in 1985...By 30 April 2006, 135 states had acceded to the SUA Convention, including China, India, Japan, Korea, Vietnam, and Nigeria."

"…Summary

Although not all the loopholes of the 1982 Convention have been filled, the SUA Convention does constitute a further step towards repressing violence at sea. It compels states to make more efficient use of national legal standards. The signatories must exercise jurisdiction against all suspected offenders or extradite them. Unfortunately, however, this still does not mean that the offenders will also be punished."

"…Definition of piracy according to the SUA Convention"

"While the first two Articles of the SUA Convention are devoted to the scope and definition of a “vessel”, Article 3 and the following articles are concerned with the definition and response to illegal actions against maritime navigation."

"Among other things, illegal actions include the unlawful seizure of vessels, the attachment of materials to or installation of materials in vessels which could lead to damage or destruction of the vessel in question, and the killing of persons on board. Consequently, the SUA Convention, unlike the 1982 Convention, mainly relates to politically motivated terrorist acts. But it can also be applied to acts of piracy."

"In addition, it covers a significantly larger geographical territory than the 1982 Convention. According to Article 4 of the SUA Convention, the vessel can be at sea anywhere at the time of the illegal act – on the high seas, in the exclusive economic zone, in coastal waters – and also on inland waterways. However, the vessel must be in international transit at the time of the illegal act, i.e. it must have come from a foreign territory or from the high seas or it must be passing through or heading for such areas at the time of the illegal act."

"A loophole arises if the vessels only transit the territorial waters of one state – but that loophole could be filled by national laws."

"Right of intervention permitted by the SUA Convention"

"Unlike the 1982 Convention, the SUA Convention does not grant any powers to take action against pirates and avert pirate attacks. Only the flag state (under the so-called flag state principle) and the state whose coastal waters are being transited by foreign vessels (territoriality principle) or whose citizens commit the offence (personality principle) have the right to take such action...This means that the SUA Convention, like the 1982 Convention, does not provide states with any right to pursue offenders in the territorial waters of other states..."

"...Criminal prosecution"

"Unlike the 1982 Convention, however, the SUA Convention does provide a legal foundation for the prosecution of pirates. Article 7, paragraph 1, SUA Convention obliges the treaty states to detain suspected persons in their territory or to take other measures to prevent their escape. This applies until criminal proceedings or extradition proceedings are instituted..."]

[“IMO Maritime Safety Committee Circulars 622/Revision 1 of June 16, 1999 and 623/Revision 3 of May 29, 2002 provide recommendations to governments and guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. These publications emphasize self-protection measures, reporting events, and coordination among countries.”

“…The IMO initiatives establish a framework under which ship operators take their own precautions to protect themselves against piracy. The Somali situation has given rise to a number of specific recommendations, including:

• Transiting at high speed to outrun attackers. An option for certain ships, such as container ships, but not others, such as tankers.
• Take the long road around Africa. Adds time and expense and will be less attractive in Southern Hemisphere winter.
• Discourage or repel attackers by using long-range acoustical devices ($20,000 to $30,000 apiece), raising boarding ladders, dangling fire hoses over the side or installing razor wire at access points.
• Call for help and either lock the crew up or use Molotov cocktails, beer bottles and other missiles until rescue forces arrive.”

“There is also the much-discussed delicate question of the use of force by vessel operators or their contractors. Testifying before Congress in early February, Rear Adm. William D. Baumgartner, judge advocate general of the U.S. Coast Guard, said, ‘The U.S. government does recognize that that’s an option available to a shipowner’, although one that ‘has to be thought out very carefully in advance’.”]

[See: K&L Gates, Legal Issues and Somali Piracy: A Maritime Whitepaper, The Journal of Commerce (April 27, 2009) at p. 16, at: http://www.joc-digital.com/joc/20090427/?pg=16 ].

[“Prior to the current situation in Somalia, anyone with even a passing familiarity with UNCLOS would have thought – correctly – that international law was very simple and clear on the subject of piracy. A distinguished international law scholar who is an expert on UNCLOS and the SUA Convention wrote to us that: ‘[UNCLOS] contains very clear provisions on this matter. It is for the states parties to the Convention to implement these provisions and that is where the major problem seems to lie. Furthermore, there are certainly complicated legal and practical issues in bringing pirates arrested off the coast of Somalia to trial in countries far away from the region.’”

“Somali pirates have illustrated these practical shortcomings of the legal system. U.S. Navy Vice Adm. William Gortney, commander of the U.S. Fifth Fleet and of the Combined Maritime Forces who directed the establishment of the Maritime Security Patrol Area and established Combined Task Force 151, indicated in a Pentagon briefing earlier this year that without orders to capture pirates and a procedure to turn them over for prosecution somewhere, there is a serious gap in the arsenal of anti-piracy measures. This admission should have been a surprise to no one.”

“…IMO MSC/Circular 622/Revision 1 addresses criminal jurisdiction by recommending that countries prosecuting persons apprehended at sea outside the territorial seas of any country should do so under mutual agreement with other substantially interested countries. This is consistent with a provision in UNCLOS that the actions of a state that seizes a pirate ship are “subject to the rights of third parties acting in good faith.” Additionally, IMO Resolution A.922(22) adopted a Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships.”]

[See: K&L Gates, The Pirates of Puntland: Practical, Legal and Policy Issues in the Fight Against Somali Piracy (March 2009), at p. 5, at: http://www.klgates.com/files/Publication/ac22f46f-de64-41d5-a99c-8566b961c41e/Presentation/PublicationAttachment/fbdacf5a-55e1-408d-833b-a4bc8a15dc70/3_09_The_Pirates_of_Puntland.pdf ].

[CFR REPORT MYTH #3]

"The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sovereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic. This is especially urgent this year, as the commission will review an influx of claims expected in May 2009, the deadline for twenty-six states to make their submissions based on the procedural clock that began ticking when they ratified the convention. (The United States would have ten years to make its claim if it were to join the convention.)" (CFR Report at pp. 33-34)


[UNCLOS REALITY # 3 - COUNTERING CFR REPORT]

UNCLOS RATIFICATION IS NOT NECESSARY FOR U.S. TO EXTEND ITS CONTINENTAL SHELF

§

The ‘‘as soon as possible but in any case within 10 years of the entry into force of this Convention for that State’ language of Art. 4 of Annex II and the drafting history of UNCLOS suggests that it was not intended to accord this right to States that are not parties to the Convention.”


"...The rules concerning continental shelf entitlement and outer limits contained in article 76 of the Convention have attracted broad support in State practice, also from States that have not signed or ratified the Convention. A difference between article 76 of the Convention and customary international law is that in the latter case there does not exist an obligation (or a right) to make a submission to the CLCS concerning the outer limits of the continental shelf. One of the implications of this distinction would seem to be that outer limits established on the basis of customary international law may not as easily gain the same amount of recognition as outer limits established in accordance with the procedures under article 76."


"One option to address this issue would be for a third State to make a submission to the CLCS... It can be observed that the CLCS has requested the SPLOS for clarification and/or possible recommendation whether:


In the light of article 4 of annex II to the Convention, do the terms "a coastal State" and "a State" include a non-State party to the Convention, or do they only refer to a coastal State or a State which is a State party to the Convention? (Letter Dated 12 March 1998 from the Chairman of the Commission on the Limits of the Continental Shelf Addressed to the President of the Eighth Meeting of States Parties (Doc. SPLOS/26 of 12 March 1998), para. 5)."


"It is not clear if such a right has been accorded to non-parties under the Convention. Rights can be accorded to non-parties to a treaty by the parties under the treaty. However, it is questionable whether the Convention accords a right to third States to make a submission to the CLCS. Such a right would have to be stated in a sufficiently clear manner and there has to be an intention on the part of the States that have drawn up the instrument concerned to accord a right and an acceptance of the right by the third State."


"Article 4 of Annex II to the Convention provides that a coastal State shall make a submission ‘as soon as possible but in any case within 10 years of the entry into force of this Convention for that State’. This language indicates that the time frame for making of a submission is linked to the date of entry into force of the Convention for a State. This suggests that it was not intended to accord this right to States that are not parties to the Convention. This language in any case does not seem to meet the criteria set out by the Permanent Court in the Free Zones case."


"...As was observed by the Permanent Court of International Justice in the Free Zones of Upper Savoy and the District of Gex case:


It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such ([1932] Permanent Court of International Justice, Series A/B No. 46, at 147)."


"The drafting history of the Convention provides support for the interpretation that Article 4 of its Annex II was not intended to accord a right to third States. The acceptance of the compromise concerning the extent of the continental shelf in article 76 was based on the inclusion in the Convention of article 82 on revenue sharing in respect of the outer continental shelf. Article 82 has not created an obligation for third States."

“...In this light, it would seem desirable that the consideration of the question by the States parties to the Convention to accord third States the right to establish the limits of their outer continental shelf in accordance with the procedures under article 76 is linked to the acceptance by these States of the obligation concerning revenue sharing under article 82 of the Convention.”

[See International Law Association Berlin Conference (2004) – Legal Issues of the Outer Continental Shelf, at pp. 29-31, at: http://www.ila-hq.org/download.cfm/docid/B5A51216-8125-4A4B-ABA5D2CAD1CF4E98 ; International Law Association Toronto Conference (2006) – Legal Issues of the Outer Continental Shelf, at pp. 20-21, at: http://www.ila-hq.org/download.cfm/docid/435A6BA1-4F85-47B3-9ED23A6F64924414. See also generally Atsuko Kanehara, The Revenue Sharing Scheme with Respect to the Exploitation of the Outer Continental Shelf under Article 82 of the United Nations Convention on the Law of the Sea —A Plethora of Entangling Issues, Presented at Seminar on the Establishment of the Outer Limits of the Continental Shelf beyond 200 Nautical Miles under UNCLOS—Its Implications for International Law (Ocean Policy Research Foundation (Feb. 27, 2008), at: http://www.sof.or.jp/en/topics/pdf/aca.pdf ].

"While UNCLOS ratification would likely enable the U.S. “to appoint someone to the continental shelf commission and have a seat at the table when Law of the Sea-related negotiations are taking place...The United States is not going to be deprived of a seat at the table even if it is not a treaty member... So a virtual or indirect seat will be found, in some way or another...(though one of 21 votes probably makes no difference).” See Eric Posner, The Race to the Arctic and International Law, The Law School Faculty Blog, University of Chicago (Aug. 13, 2007), at: http://uchicagolaw.typepad.com/faculty/2007/08/the-race-to-the.html ].

[Continental Shelf Commission determinations are NOT binding. If countries refuse to accept them, they will likely end up in dispute with each other, and subsequently, arbitration/litigation, unless the opt-out provision is invoked. (See: UNCLOS Arts. 76(8) and (10) and 298(1)(a)(i)). And the Commission cannot rule on rule on territory claimed by more than one state, which is subject to dispute resolution. (See UNCLOS Art. 83)].