The offshore jurisdiction of the states of the United States and the provinces of Canada—A comparison

Abstract

The coastal state has jurisdiction over the resources located in the seas and seabed adjacent to its coast. In federal states the question has arisen as to whether the rights in those resources are to be held by the national government or by the subsidiary territorial governments. It has been the focus of political activity and court litigation in the United States and Canada. This paper reviews in detail the status of the offshore claims of the states of the United States and the provinces of Canada. In delimiting these boundaries two systems of law have become relevant—modern public international law and historic common law. Both systems of law have advantages and disadvantages for the courts and interested parties. While the United States has chosen a route that relies very heavily on modern public international law, the Canadian situation is less clear. Litigation now in progress may resolve this issue in Canada by court decree unless a political settlement is reached first. A recent agreement between the Federal Government of Canada and the Gov eminent of Nova Scotia which calls for joint management and revenue sharing may point the way toward such a settlement.     

Ocean mineral revenue sharing

Abstract

This article considers the importance of ocean mineral revenue sharing, from both the oil and gas of the continental margin and the manganese nodules of the deep seabed, at the United Nations Law of the Sea Conference. First the paper examines margin revenue sharing as proposed in Article 82, Informal Composite Negotiating Text. It estimates the amount of oil and gas in offshore areas, the potential value of these resources to the coastal state, the potential revenue to be shared with an international authority, and when these resources will be exploited. The paper concludes that revenue sharing from the margin will yield little if any revenue to an international authority. The article then discusses deep seabed revenue sharing. It estimates several possibilities, including nodule production by the mid‐1980s; the value of operations to the exploiting state(s)—particularly the United States; revenues to be shared with an international authority; the impact of nodule mining on land‐based producers of seabed minerals; and the uses of revenue sharing funds by an international authority. The paper concludes that revenue sharing will not exert much influence on negotiations at the United Nations Law of the Sea Conference.     

Effective Protection of the Marine Environment and Equitable Benefit Sharing in the Area: Empty Promises or Feasible Goals?

abstract

The international legal framework with regard to “the Area,” comprising the deep seabed and the subsoil beyond the boundaries of national jurisdiction, has been modified significantly through the years. It was first established by part XI of the United Nations Convention on the Law of the Sea, but the 1994 Implementation Agreement introduced several changes. These general rules and principles are further developed in the “Mining Code,” referring to the comprehensive set of regulations and procedures issued by the International Seabed Authority. The Authority has already produced rules for the first phases of mining activities (prospecting and exploration) in the Area, but has yet to adopt exploitation regulations. Nevertheless, the most recent draft of the exploitation regulations provides a good indication of the current state of play. This article analyzes the current draft of the exploitation regulations, which will shape the future deep seabed mining regime, in order to evaluate whether the relevant provisions are sufficient and effective to attain two prominent goals with regard to the Area: the protection of the marine environment and the equitable sharing of financial and economic benefits. The Law of the Sea Convention indeed states that the resources of the deep seabed are considered common heritage of mankind and prioritizes these objectives. Therefore, the exploitation regulations should strike an appropriate balance between commercial exploitation, environmental protection, and the interests of developing countries. The strengths and weaknesses of this document and the overarching international legal framework are identified and possible corrections are suggested.     

Brazil at the third United Nations conference on the law of the sea

Abstract

As Brazil began to emerge as a major power in the years leading up to theThird United Nations Conference on the Law of the Sea (UNCLOS III), national ocean policy came to have a quite continuous, distinctive impact on global law of the sea negotiations. Brazil's participation at UNCLOS III offers a particularly good vantage point from which to analyze its more prominent international role as an emerging major power, its related growth as a maritime power, and its significant contribution to international organization.

UNCLOS III, in turn, affects Brazil. The broad implications of the emerging ocean order for both national and international jurisdiction issues, within which Brazilian ocean policy must operate, are analyzed. Brazil's distinctive position as an emerging power between the industrialized countries and the Third World has conditioned its involvement at UNCLOS III. As a developing state, Brazil has favored revision of the traditional order for the purpose of redressing the balance with the developed states. At the same time, as an emerging power, Brazil has an interest in supporting a stable, open international order. In spite of such policy dilemmas, Brazil stands out as one of the few big potential winners in the Third World from both the seabed and non‐seabed portions of the law of the sea negotiations.     

Wide limits and “equitable”; distribution of seabed resources

Abstract

This article discusses some drawbacks of a universally applicable 200‐mile limit for seabed resources in terms of the artificial nature of this limit, the jeopardy to the proposed international regime to govern deep seabed resources, and the views of land‐locked and shelf‐locked countries. Given the uncertain political acceptability of a 200‐mile limit, a systems approach is suggested as a means of devising a compromise solution that would maximize the objectives of: respect of existing internationally agreed conventions; promotion of the rational development of deep seabed resources; provision of equitable distribution of seabed resources and provision of acceptable benefits to all major groups of countries. One possible solution would be to have the limit of coastal jurisdiction over seabed resources defined in terms of the continental margin coupled with a system for sharing the “take”; in the area between 12 miles and the limit of the margin. The share payable to the international seabed authority would increase progressively with the distance of exploitation from the coast but would be moderated by the relative income level of the coastal State.     

Municipal legislation for exploitation of the deep seabed

Abstract

This study traces the evolution of municipal legislation for the deep seabed in the United States of America and the Federal Republic of Germany, and considers what the United States seeks to gain and what it may possibly lose through its recent enactment of the Deep Seabed Hard Mineral Resources Act. The study concludes that the Deep Seabed Hard Mineral‐Resources Act will ensure for the United States that the minerals of the deep seabed are (if they can be) available when needed, and will strengthen the negotiating position of the United States in UNCLOS III vis‐à‐vis a proposed seabed regime which it perceives as inefficient toward the development of manganese nodules, and unacceptable in the system of governance it promotes. Passage of the Act, it is concluded, will probably not result in a breakdown of the Law of the Sea negotiations. It is thought it will give rise to a legal challenge, the outcome of which is difficult to predict. Finally, it is asserted that political/economic opposition to the Act will be mitigated by the reasonableness of the Act, its provision for delayed implementation, and the desire of many nations to conclude a successful Law of the Sea Treaty.     

Transfer of seabed mining technology: A stumbling block to U.S. ratification of the law of the sea convention?

Abstract

The Law of the Sea Convention's provisionson the transfer of seabed technology are designed to translate into specific terms the general notions (adopted in the U. N.’s Declaration of Principles of 1970) that the resources of the seabed are the “common heritage”; of humankind and that the developing nations are to gain special benefits from the exploitation of these resources. Some developed nations—in particular, the United States—have argued that these provisions are unfair, because they deprive the multinational enterprises of the developed world of the competitive advantage they have gained from their substantial investment in research and development and their innovative capabilities.

The transfer of technology is not a new concept. It is a mechanism that has been used systematically by many developing countries to ensure that foreign investments will produce a lasting infrastructure for continued national development. Multinational enterprises have learned to accommodate national needs in this area, and technology‐transfer requirements for land‐based investments have not deterred investments in the developing world.

The technology‐transfer provisions in the Law of the Sea Convention are ambiguous in certain respects, but the Preparatory Conference should provide ample opportunity to clarify these ambiguities and thus to accommodate the needs of both the investors and the developing nations. If this issue is examined from a common‐sense perspective, it should not continue to be a stumbling block that would prevent the United States from ratifying this important Convention.     

Reflections on the Conservation and Sustainable Use of Genetic Resources in the Deep Seabed Beyond the Limits of National Jurisdiction

Attention is increasingly being given to genetic resources in the deep seabed beyond the limits of national jurisdiction owing to their considerable potential scientific and economic value. At the same time, there are concerns that the increased demand for these genetic resources may result in their unsustainable collection or even in the extinction of species in the deep seabed. At present there is no specific legal framework governing these resources in international law. Thus, this article explores the relevant rules of international law applicable to the conservation and sustainable use of genetic resources in the deep seabed.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

Deep‐sea mining between convention and national legislation

Abstract

A Draft Convention, informal rather than formal, emerged in September 1980, from the Ninth Session of the Third UN Conference on the Law of the Sea. At about the same time the Federal Republic of Germany and the United States passed interim legislation to create a legal framework for deep‐sea mining activities. If seabed mining is to be undertaken, a legal framework or “Rechtsordnung”; must be established which secures the right of access to the resources under commercially viable conditions during the operational time‐span of an industry, namely twenty to thirty years. At issue is the long‐term problem of securing strategic raw materials rather than the realization of short‐term profit. The American decision in March 1981, immediately prior to the Tenth Session, to review the Draft Treaty, has served to focus attention on the system of access, the decision‐making processes of the International Seabed Authority, the transfer of technology and the payment of fees, and the capability of the Enterprise as a seabed miner.     

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.     

Japan and deep seabed mining

Abstract

Japan holds a unique position among potential deep seabed mining states. This paper describes this uniqueness and identifies four possible factors that the author believes have influenced the shaping of Japan's policy. These factors are: the importance of the use of oceans and a stable legal order, the near‐total dependence on imports of the four mineral resources which are contained in manganese nodules, the need to cooperate with Western industrialized countries, and the traditional close ties between the government and private industry. The paper then examines the past and current developments regarding Japan's involvement in deep seabed affairs from the perspectives provided by these four salient facts. The author concludes by expressing the hope that current differences in the positions of potential mining states will be reconciled as actual deep seabed exploitation becomes more of a reality.     

A Review of “Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics”

Abstract

The purpose of the London Dumping Convention (LDC) is the protection of the marine environment including its seabed and subsoil. The preamble, articles, and annexes of the LDC make clear that the Convention must be interpreted in a manner which ensures that this responsibility is met. As a partial response to that mandate, the LDC prohibits the dumping at sea of certain wastes, including high‐level radioactive wastes. Disposal of high‐level wastes in seabed sediments is the subject of ongoing technical, environmental, and engineering feasibility studies by several countries. In the LDC's definition of dumping, the phrase “disposal at sea”; could be interpreted narrowly to mean the final resting place of wastes—with seabed disposal excluded from coverage because those wastes are not in direct contact with “marine waters.”; Given the LDC's object and purpose, though, the only harmonious and reasonable interpretation is that which defines “disposal at sea”; to mean the place where the dumping activities occur. Other international agreements also support this object and purpose‐based interpretation which concludes that seabed disposal is covered and prohibited. In addition, this approach is preferred because it contributes to the continued effectiveness of the LDC.     

National legislation on ocean authority zones and the contemporary law of the sea

Abstract

Unilateral claims to 200‐nautical‐mile zones of varying forms of national jurisdiction continue to proliferate as the LOS negotiations continue. Legislation from thirty‐nine nations establishing exclusive economic zones is examined. Discussion and comparison include the scope of authority claimed, the range in activities affected, the exclusiveness of authority asserted, the extent of recognition of the interests and rights of other states, and the geographic extent of individual claims. The primary focus is upon comparing provisions that concern or directly relate to navigation in the zone. After brief discussion of the draft LOS treaty provisions concerning access to the zone for transportation and communication, the disparity between these provisions and some national measures is noted.     

The U.N. convention on the law of the sea and military interests in the indian ocean

Abstract

The U.N. Law of the Sea Convention, ambiguous on military uses of the ocean space, weakens the legal basis for the maritime powers to pursue freely their military objectives in the oceans. Repudiation of the Convention by the United States will accelerate the creeping jurisdiction of the littoral states. The Convention enhances the security of the littoral states of the Indian Ocean, all of whom have only limited blue‐water capabilities and have sought to contain the military intrusions of the superpowers into the Indian Ocean.     

New concepts in the law of the sea

Abstract

Current ocean law negotiations reflect conflicts between two old and competing approaches: the view that the coastal state should control activities in any large adjacent ocean area, and the view that most of the ocean should be left open to the free use of all nations. Both approaches are laissez‐faire, leave the distribution of benefits to arbitrary factors, and are based on national exclusivity. In the negotiations this conflict is exhibited in competing claims regarding navigation, mineral resources, fishing, environmental protection, and strategic uses. A possible resolution has emerged in the concept of the whole ocean as a common resource of humankind, according to which no individual state has a right to benefit from the ocean except pursuant to arrangements sanctioned by the community, and rights to benefit are determined not arbitrarily but by membership in the community. The regime now likeliest to be produced by such an approach includes (1) a narrow territorial sea and various navigation guarantees, (2) a wide coastal band coupling coastal state managerial functions with permanent international prerogatives, and (3) purely international manage‐ment of the deep seabed.     

The conflict between petroleum production,navigation and fisheries in international law

Abstract

Growing offshore oil activity and new technology have resulted in increased interference with traditional uses of the sea, such as fishing and navigation. This article discusses where oil production is prohibited, the extent of safety zones and the removal of installations after use. These questions are examined on the basis of the 1958 Continental Shelf Convention, the 1982 Law of the Sea Convention and state practice. When assessing this multiple use conflict, the different legal regimes for the continental shelf, fishing and navigation must be harmonized. “Creeping jurisdiction”; in state practice and the handling of these questions in the International Maritime Organization are also examined.     

Lack of Correlation Between Antiobesity Policy and Obesity Growth Rates: Review and Analysis

ObjectiveTo review federal, state, and local antiobesity policies and to assess their relationships with obesity growth rates.MethodsWe performed a literature review, acquired data from governmental Internet sources, and assessed the statistical correlation between state antiobesity policies and the concavity in obesity growth rates.ResultsState-by-state antiobesity policies in 3 categories—taxation of sugared beverages and snacks, physical education and physical activity in schools, and funding for bicycle trails—were found to have no significant immediate correlation with the change in obesity growth rates.ConclusionsIneffective antiobesity legislation may be attributable to shortcomings in policy implementation. Behavioral economics and addressing large-scale cultural issues may have critical roles in promoting more healthful lifestyles. We propose that a systems-based paradigm evaluating complex interactions among pathophysiological, cultural, political, economic, and behavioral components can improve antiobesity policy implementation and should therefore be a research focus. (Endocr Pract. 2012;18:737-744)     

Implications of the UNCLOS Marine Scientific Research Regime for the Current Negotiations on Access and Benefit Sharing of Marine Genetic Resources in Areas Beyond National Jurisdiction

Abstract

Access to marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) and the sharing of benefits arising out of the utilization of these resources are among the most contentious at the UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction. This article examines the applicability of the marine scientific research (MSR) regime of the UN Convention on the Law of the Sea (UNCLOS) to the access and benefit-sharing issues. It concludes that the MSR regime of UNCLOS provides the legal basis for setting up nonmonetary-benefit sharing obligations, including the dissemination of information, data, and research results concerning MGRs at the UN negotiations on marine biodiversity in the ABNJ.     

Nuclear waste management activities in the pacific basin and regional cooperation on the nuclear fuel cycle

Abstract

Pacific Ocean and island sites have been used since World War II for nuclear activities, including effluent discharges from nuclear facilities, sea dumping of packaged radioactive wastes, and testing of nuclear explosives. In the future, the amounts of radioactive wastes deliberately released into the Pacific Ocean may increase in connection with planned commercial‐scale nuclear fuel reprocessing operations, recommencement of plutonium production for weapons purposes, and resumption of sea dumping of low‐level wastes. Proposed storage of spent nuclear fuel on Pacific island sites or disposal of high‐level wastes in the deep seabed of the Pacific could also expose the ocean to a risk of contamination by long‐lived radio‐nuclides. The consequences of all these activities should be assessed in practical terms—their likely effects on the living marine resources of the Pacific and the economic development of the societies benefited by them; in terms of the legal principles which govern activities such as marine radioactive waste disposal that could pollute the marine environment; and in relation to current and future organizational arrangements that could achieve political resolution of outstanding international nuclear energy issues. Despite the prospective dangers of marine nuclear activities, the use of relatively remote or extraterritorial marine locations including those in the Pacific basin for nuclear operations could provide a basis for international cooperation on management of the “back end”; of the nuclear fuel cycle, including storage and reprocessing of spent fuel and high‐level waste disposal. A broadly recognized international regime for the nuclear fuel cycle could be based on regional organization of such back‐end operations, provided local acceptance could be obtained.