DEPARTMENT OF PUBLIC POLICY

POL 663: Ocean Policy and Law

Lecture 9: Jurisdictions Issues Offshore International Law Considerations Introduction
Recall our earlier discussions about property rights, particularly the characteristics that help to define certain property rights, a visual representation of which is copied here for our recollection:

Based on the characteristics of excludability and divisibility, we are able to discern the major ways we humans categorize physical things as property. We have already discussed in some depth how marine resources can take on different property right characteristics based on the circumstances surrounding the resource. For example, a marine mammal within U.S. jurisdiction is owned by the U.S. while it is physically present in U.S. waters; if the mammal moves outside of U.S. waters, it is no longer owned by the United States. The effect of this change in ownership by the circumstance of physical location creates policy issues that need to be considered. For example, if the

Page 2 of 11 U.S. has a policy of protecting marine mammals within its borders (a policy legitimized by the passage of the MMPA), then that policy is frustrated when the mammals move outside of U.S. jurisdiction because the rules of ownership have changed based on other rules regarding jurisdictional limits. In this way, the rules regarding jurisdiction impact other rules for the protection of marine resources, and the common factor affecting both the protection rule and the jurisdictional rule is physical location. Another example includes property rights and rules established for transferring those property rights within a jurisdiction. As previously mentioned, commercial fishing licenses are created by government as a way of realizing the direct economic utility of certain marine resources like fish and scallops. The property right of the resource (while in U.S. jurisdiction) is that of a public resource. Government grants the right to certain private individuals to capture the resource (under their own efforts), and upon the act of actually capturing the fish, ownership transfers from the public to the private individual the resource becomes the private property of the individual fisher. Again, the legitimacy of this act is wholly based on a common factor, physical location. Only so long as the resource is located in the jurisdiction of the United States is the ownership right controlled by the United States; if the fish moves outside of U.S. jurisdiction, then the ability of the U.S. to assign the property right to a private commercial fisher no longer exists. So, for example, if the fisher captured the fish in another countrys jurisdiction, then they could not claim a legal right of ownership over the fish based on U.S. law. This discussion of property rights in relation to physical location is meant to get us to start thinking about the role of physical location, and thus legal jurisdiction, in greater detail. The fact is that as we move further offshore, resources (and particularly mobile resources) are subject to varying claims of ownership based on where they are located at a given time. In addition, some areas of the worlds oceans are under competing claims of jurisdiction; the exact ownership of those geographic areas has not been fully determined (or acknowledged) by the international community as between certain countries. Because jurisdiction is so important to our understanding of legitimacy in developing policy, we spend some time here discussing the conventions that have been developed regarding jurisdictional rights of coastal nations from the land seaward.1 The main international legal regime created to support jurisdictional claims of coastal nations is the United Nations Convention on Law of the Sea (UNCLOS). We review UNCLOS in order to better understand the jurisdictional norms that apply to coastal nations, and also to identify some of the policy issues that are created from these norms at the international level.
1

The international term of reference for countries that lie on the coasts, in relation to one another, is actually coastal states. We previously used the term coastal state to refer to the states within the United States of America so we could distinguish between state and federal rights. In this section we will use the term coastal nation so as not to confuse the reader. However, you may read coastal state in some of the materials: understanding this is meant to reflect to countries and not states within countries in this section.

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A Historical Perspective
Recall our earlier discussion about the discovery of oil and other marine resources that began the tidelands controversy between the United States and coastal states (like California). Much of the driving force behind that controversy between ownership rights of coastal resources was technological development; as technology allowed for marine resources to be reached and extracted, the value of those resources began to be realized, particularly the direct economic value of the resource. As a consequence, the desire to capture that value created competition for the resource that, for the most part, did not exist prior to technology realizing this value. In this way we can see how technology can be a powerful force that creates new problems requiring policy development; the technological capacity to extract the resources (and the corresponding economic benefits) created the ownership conflict between state and federal government requiring policy solutions (ultimately the Submerged Lands Act) to resolve the dispute. In the same way that technology created an issue regarding ownership rights of the ocean for the state and federal governments in the United States, technology has also acted as a driver of policy development in offshore jurisdictional claims between coastal nations. Historically, there was a limited capacity for humans to move about the open oceans. Early ocean travelers (Macedonians, Egyptians, Greeks, Romans, Vikings) used small water vessels to move about the coastline. It was only more recently in human history that larger ocean vessels were developed and humans began to move further offshore along the open oceans for exploration, transit, and ultimately resource exploitation. Early western discussions about the ownership of the open ocean came about from the Dutch who had been using sea routes to develop trade with the East. To ensure these routes would remain open for commerce purposes, Dutch legal scholars argued for mare liberum, or the freedom of the seas. The concept argued that oceans should remain open for transit purposes of all countries to encourage commerce and help develop the wealth of nations. At this time the seas were seen mainly as highways, meaning the value was in accessing the open oceans for transit and not for the exploitation of resources that existed within the water of the open ocean itself. Further technological advancement brought forth a more refined interpretation of mare liberum, or precisely just how free transit over the oceans should be. As ocean vessels became war ships armed with cannon and used militarily to advance national interests abroad, the ideas behind complete freedom of transit were refined. The cannon-shot rule was developed (Thomas Jefferson was a proponent) in the late 1700s as a means of defining the sovereign territory of a coastal state. At the time a cannon fired from an ocean vessel could travel approximately 3 miles. Thus, the cannon-shot rule suggested no ship could travel within 3 miles of a coastal state without the express permission of that nation; the 3 miles from the land was the sovereign territory of the nation. There are other examples of technology increasing the capacity of utilizing marine resources (whether that be the sea itself or the things within the sea). As technology has

Page 4 of 11 increased capacity to interact with the ocean, coastal nations have developed rules to protect their respective interests in those ocean resources; those nations who have the capacity to exploit resources generally favor the ability to exploit, while coastal nations that do not have the capacity to exploit (or protect their coastal resources) generally favor the protection of coastal resources. The divergence between advanced and developing coastal nations led to the need for an international agreement on these issues, and this resulted in the development of UNCLOS over the past few decades. The results of UNCLOS are a set of generally applicable rules that are followed by most coastal nations today.

Jurisdictional Rules Under UNCLOS

Recall the following visual representation of zones in our ocean, beginning from a baseline (where the water meets the land) and heading seaward:

These zones are in accordance with the principles established under UNCLOS, meaning that coastal nations that have signed onto UNCLOS adhere to similar zones as described above. There are additional zones created in UNCLOS summarized in the following table:

Zone
Baseline

Description
Established by the mean low water mark (MLWM): where the average low water tideline exists at a particular location on the shoreline. This is where all measurements of zonal jurisdiction begin. Area between the MLWM and the mean high water mark

Tidelands

Page 5 of 11 (MHWM). The MHWM is the average high water mark at a particular point along a coastline. Thus, the tidelands are, essentially, the intertidal zone area that is submerged under water part of the time (during high tide), and exposed as dry land the other part of the time (during low tide). Measured as 12 miles from the baseline. This area is considered the complete sovereignty of the coastal state, but under UNCLOS conventions, innocent passage of other vessels is allowed in this zone. Measured as 24 miles from the baseline, or 12 miles from the extent of the territorial sea. This zone is established to allow for enhanced security of the coastal state with respect to customs, immigration, and drug interdiction. Thus, vessels operating within 24 miles of a nation are subject to boarding for these purposes. Measured as 200 miles from the baseline, or the extent of the continental shelf if longer than 200 miles. This zone is established to secure the marine resources contained within this area as the property of the coastal state sovereign. The area beyond the exclusive economic zone. This area of the ocean (also known as international waters) is free from individual coastal state ownership and operates, essentially, under the premise of mare liberum, or freedom of the high seas. Waters lying landward of the MLWM. These include coastal features such as bays that extend inland from the normal coastline feature. Thus, even though the bay itself may extend inland, the feature of the bay is not calculated in determining baselines for purposes of moving the zones described above further inland. Special rules apply in determining whether a coastal feature is internal water

Territorial Sea

Contiguous Zone

Exclusive Economic Zone (EEZ)

High Seas

Internal Waters

The main test for determining a bay feature is the 24-mile semicircle test. The bay must be no larger than 24 miles from tip-to-tip of its mouth (you measure a straight line from both tips at the coastline just before the coastal features begin moving inland). In addition, the area of the water body (the bay itself) must be greater than the measurement from tip-to-tip. Thus, if the measurement of an inland embayment mouth from tip-to-tip is 20 miles, then it meets the first part of the test (less than 24 miles). In addition, if the area of the water body is 25 miles, then it meets the second part of the test (greater than the 20 mile tip-to-tip measurement). Therefore, this water body would be considered internal waters under UNCLOS and excluded from measuring baselines for territorial sea, EEZ, and other measurement purposes. In addition to this, UNCLOS does allow for certain bays, based on historical evidence, to be considered the internal waters of the country. The historical bay claim can be made for areas that do not meet the 24-mile semicircle

Page 6 of 11 as described under UNCLOS.2 The area beyond the continental shelf that represents the deep sea, generally located in the high seas designated area of the ocean.

Deep Seabed

These are the main zones of relevance for our discussions of UNCLOS and they represent the starting point from which policy issues are defined and develop. While helping us identify potential policy issues, these zones also represent the foundation upon which policy solutions are determined; by understanding the zoning elements of our ocean, we have the formal rule foundation from which to develop solutions to problems, both proactive and reactive depending on the circumstances.

Policy Issues Under UNCLOS

There are a number of policy issues that are triggered by UNCLOS, many of which are understood in the contextual application (when looking at the detailed facts of the situation and overlaying the legal frameworks established by UNCLOS). We have already discussed the concept of laying out legal lines, and then looking at how these lines help to define policy issues. Early on we discussed this in relation to federalism (conflicts between the federal and coastal state governments of the United States) and the question of resource ownership ultimately resolved by the passage of the Submerged Lands Act (SLA). Another example arose in our discussion of how the management of defined resource ownership is impacted; the context for this discussion was again the state vs. federal roles in marine resource management. Once the SLA resolved marine resource rights (the distribution of marine resources between federal and state ownership), the next issue that arises logically is the management of those distributed rights. What happens when state and federal management priorities come into conflict? We discussed this issue within the context of the Coastal Zone Management Act (CZMA) as a way of understanding the conflicts that can arise between resource user groups. The federal consistency requirement was a policy tool (legitimized as legislation under the CZMA) developed to help resolve such conflicts, at least by providing a framework to aid in the resolution of such conflicts. Like the examples of the SLA and the CZMA at the national level in the United States, UNCLOS provides some frameworks for the resolution of marine resource rights, distribution, and management at the international level, i.e., between coastal nations. While there are literally thousands of examples (case studies) we might use to help us understand the role of UNCLOS, and the legal frameworks it establishes, to help resolve conflicts such conflicts, we will focus our attention here of a few thematic examples to highlight the relationship between policy and law in this setting. Maritime Boundary Delimitation test, and they must be based on evidence showing sovereignty over the area and acquiescence to such sovereignty by other nations.

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One of the most fundamental results of UNCLOS is the establishment of geospatial boundaries. As described above in the jurisdictional rules section, UNCLOS provides a standardization of property rights in the ocean. Based on the rules contained in physical boundary definition, signatory nations (and non-signatory coastal nations adhering to the UNCLOS rules), the respective rights and obligations of coastal nations are defined with some degree of precision. Of course, we can likely see where such rules have room for interpretation, or otherwise contain some ambiguity based on circumstances encountered. Under certain situations, the maritime boundaries are not always easy to determine; for example consider the situation where two coastal nations share boundaries that overlap with one another. Canada and the United States, due to their immediate adjacency, share a common maritime boundary that includes overlap between UNCLOS zones. For example, if one logically were to draw out Canadas exclusive economic zone (EEZ) under UNCLOS rules, its boundary would overlap significantly with the EEZ of the United States. This may not be an issue in areas where the overlap does not result in resource allocation conflicts (where neither side actually utilizes the area of overlap for any meaningful purpose). However, even in such situations (thinking proactively), we do know the relationship between technology and resource utilization: as technological advancements occur, the likelihood of finding uses for marine resource areas also increases. Thus, situations where jurisdictional overlap does not result in issues today does not mean issues will not arise in the future. There are situations where jurisdictional overlap does result in resource ownership disputes. One historical example between Canada and the United States is Georges Bank, a fishing ground in the North Atlantic that lies within the 200-mile boundary of both coastal nations. The area has historically been one where target commercial fish species congregate, and it thus represents a high direct economic value to both nations. Since it lies within the 200-mile EEZ of both countries, each can technically claim full rights under traditional UNCLOS zoning rules. The question for resolution between the coastal nations is how to resolve this potential conflict, and this is where policy options become an important as tools to help in the resolution of conflict, both potential and realized. The options between the countries to resolve the property rights to Georges Bank span from the absurd (at least by todays standards) to the reasonable. Certainly, each country can claim its right to the resource and then defend this claim by any means necessary, for example by declaring war on the other country. The very idea of Canada and The United States declaring war against one another to protect access to a commercial fishery hopefully seems absurd. Of course it may not seem so absurd if the resource at-stake between the countries was the dominant means by which the country prospered (consider Saudi Arabia defending its claims to oil reserves, the main economic means of wealth creation for the country). But luckily fish, as important as they are, are not sufficient to bring the countries to war. Rather, both countries in this instance allowed their resource claims to be decided by an international tribunal (a judicial body)

Page 8 of 11 established under UNCLOS to resolve disputes between countries that are based on jurisdictional claims under the UNCLOS regime. The international tribunal is a mechanism created under UNCLOS for signatory countries (and others willing to accept the jurisdiction, and thus judgment, of the tribunal) to resolve disputes as identified above. The factors used to resolve the U.S. / Canada dispute on Georges Bank were based on a mix of historical use and equitable considerations between the countries. Ultimately the tribunal was able to create a shared governance of the resource where each country was given access to a certain portion of the area thus resolving the issue by carefully demarking property rights. Once this was done, any additional shared use of the resource would be based on bilateral agreements between Canada and The United States. Creating Consensus in the International Field It is important to point out here that the United States is not a full member of UNCLOS; the U.S. has failed to ratify the treaty in the United States Congress. As such, the U.S. submits itself to the tenets of UNCLOS based on a mix of customary law and case-bycase analysis. For most of the issues related to boundaries, the U.S. follows UNCLOS; it is in other areas that the U.S. is hesitant to submit itself to the full set of provisions contained in the international treaty. For example, UNCLOS contains provisions that may impact military secrets and also the sharing of technological innovations with other countries. While not determinative for the purposes of our discussion here, it is worthwhile to consider the policy implications of a country that yields aspects of its sovereignty when signing an international agreement like UNCLOS. In yielding sovereignty the country gives up some of its freedoms through obligations, and the question from a policy standpoint may be what does the sovereign yield in rights (benefits) when accepting these obligations? The calculus used to determine the relative benefits and costs of yielding sovereignty often changes as circumstances change. For example, a militarily dominant coastal nation may be less willing to yield certain powers at sea because, on balance, the nation is giving up more than it is getting in return.3 Meanwhile, a less economically advantaged coastal nation may wish to adopt universal provisions that protect the assets of coastal nations. This is particularly true where the coastal nation is unable to defend its marine resources through a lack of finances or sophistication. In this simplified example we can see how international agreements often must serve multiple interests, and in doing so can marginalize those who sit at either ends of these interests. Understanding this point helps us identify another aspect of policy in the international arena. When creating a legal
3

This is particularly true if the coastal nation can pick and choose its rights and obligations under international law through the use of customary law, i.e., adopting the more palatable provisions of the international agreement through custom, but specifically rejecting provisions that are less palatable through overt actions like not signing the agreement and continually acting in violation of the provision.

Page 9 of 11 instrument that requires complete voluntary adoption for enforcement purposes, and further when adoption only matters if the majority of sovereign nations agree, how does one balance the varying interests of potential adopters to create an instrument that is capable of being adopted by the majority of target nations? We may find that the end product is something that is necessarily imperfect when viewed from any one interest. Consider the International Whaling Commission (IWC) discussed earlier in the course. Whaling is an activity that is favored (or at least was) by most of the participants to the agreement. Thus, it should come with little surprise (once this is understood) that the organization is interesting in resuming whaling if and when population numbers increase to acceptable levels. It should also make some sense that certain signatory nations, like Japan, are engaged in the yearly take of whales for scientific purposes. Much controversy exists around Japans continued hunting of certain whale species for what it terms science. Many believe (and the evidence does seem to clearly support this view) that Japan is using the scientific research exception under this international agreement to sidestep the current moratorium on whaling. Of course, if we think about the purpose of the agreement itself, and the fact that Japan is a voluntary member to the agreement, then we might see Japans use of the exception as a necessary means of maintaining Japans acquiescence in the international agreement. Indeed, it may be that the current ban on whaling (with accepted exceptions) is the best that an international agreement can do at this time, particularly when whaling can occur in the high seas by countries, outside of any particular jurisdiction other than that of the flag state of the vessel. The point here is that consensus is a key ingredient to international agreements, and because sovereignty prevents forced consensus, it must be built through voluntary measures among and between nations. Some see this as a major limitation of international agreement. However, if we look at UNCLOS, we see an example of an international agreement that works quite well when it focuses on interests in such a way that agreement is seen as an advantage among signatory nations. One area of such agreement is that of boundaries. Because nations see advantage in claiming boundaries (as defined under UNCLOS) there is general agreement about those boundaries. Indeed, those boundary lines contain both restrictive characteristics (keeping nations out) and access characteristics (allowing nations to move in many areas of the ocean). Thus, when incentives align there is the greatest chance for agreement and success. Failures in Management Techniques Often the creation of boundaries can be seen as successful in helping to create better management of marine resources. However, there are examples of failure. Recalling our property rights characteristics from the early figure in this section, we can see that from a global perspective, the boundaries established under UNCLOS help to create the privatization of resource areas (for example, the territorial sea of each nation). However, the boundaries also help to create (or reinforce) open access areas, like the high seas, that can end up creating common pool resource characteristics as species move from the more defined property right areas to these less defined property right

Page 10 of 11 areas. This has happened in a number of instances, sometimes causing strong disputes between nations. Consider a scenario where a nation has a valuable resource habitat sitting just within its 200 mile EEZ. Assume that the resource is mobile, meaning it can move between the EEZ and the high seas. When the resource is in the EEZ it is the sole property of the coastal nation. However, when the resource swims past the 200-mile limit of the EEZ, its property right characteristics change from the property of the coastal nation to, well, no ones property (at least when in the high seas); the only factor effecting its property right status in the high seas will be if it is captured, as we recall that capture transmutes the ownership right of the fish to the person who captured it so long as that person has the legal right to do so. In the situation described above, essentially any person would have the legal right to capture the fish in the high seas because the fish is not owned by anyone while in that zone.4 The coastal nation decides to protect the resource habitat by shutting down the fishery; it worries that it has overfished the resource and wants the population numbers to rebound. Since the spawning and breeding habitat of the fish lies just inside the EEZ, new hatchings of fish as well as mature members of the species congregate in the area. In fact, many of them tend to move between the EEZ and the high seas. Other countries learn of this and move their fishing vessels to the border of the EEZ (just outside in international waters). These other countries begin fishing just outside the border, capturing the fish the coastal nation was intending of protecting. Now, does the coastal nation simply continue its prohibition of fishing the target species? Or does it begin fishing against its will because the other fishers are waiting just outside the EEZ property line to take the fish when they cross the border? The example highlight the conundrum created through different kinds of property rights. The high seas designation allows property characteristics to change from the private property of the coastal nation to the common pool resource of whoever ends up utilizing the high seas.5 Because the coastal nation cannot exclude the other nations from
4

It is possible that a person is restricted from capturing the fish while in the high seas. The reason for the restriction does not come from the high seas itself (there is no ownership), but rather from legal restrictions that might exist on the vessel based on the laws from its state of origin (its flag state). For example, a vessel located in the high seas that is berthed and registered in the United States would not be able to hunt marine mammals in the high seas (without a special permit) because although the U.S. does not own the marine mammal when it is in the high seas, the vessel must abide by all laws of its flag state, the U.S. in this case. Since the U.S. has a law against harming marine mammals (the MMPA), the vessel is restricted from taking the marine mammal due to its obligations to its home country under the law of that country (not the laws that exist on the high seas).
5

This suggests the property right characteristics are changing from high divisibility and high excludability (private) to high divisibility and low excludability (common pool).

Page 11 of 11 the resource when it moves into the high seas, there is little incentive created to conserve the resource. We can see how this same situation can play out in shared maritime boundaries, like in the Canada / United States example of Georges Bank discussed earlier. If the U.S. decides to protect a target species from fishing on Georges Bank and that species crosses over into Canadas territory, then the success of that protection will depend on Canadas willingness to also protect the species; if Canada chooses not to protect the species, then the U.S. may have little incentive to do so. From a policy standpoint the importance of international agreements becomes heightened. While UNCLOS provides a framework that allows for tragedy of the commons outcomes (by creating the commons on the high sea), other international frameworks can be established to deal with commons issues. Thus, while there certainly are limits on the ability to create effective international regimes, there are also opportunities for these kinds of agreements to help aid in policy development in the international arena. Understanding these dynamics is the starting point to a deeper appreciation of marine policy and law issues as they exist and develop at the international level. END OF SECTION.