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CHAPTER EIGHT


Defining Trends

Oceans, Especially Coastal Waters, Are Being Used With Increasing Intensity
New U.S. Maritime Strategy Calls For Increased Near-Shore Operations
Coastal States Have Been Claiming More Control Over Near-Shore Areas
Changing International Attitudes Toward State Control of Economic Activity Have made Possible An Agreement on Seabed Mining



Oceans, Especially Coastal
Waters, Are Being Used With
Increasing Intensity

With the growth of human populations and the advance of technology, the oceans are used ever more intensively, and in new ways. In the twentieth century, problems of overuse and unsustainable exploitation have become more common, particularly in near-shore areas. Although ocean activities are gradually moving further out to sea with the advance of technology, they nonetheless remain concentrated in the littoral regions. Navigation routes lie primarily in coastal waters, and often pass through strategic waterways, including international straits that link one ocean area to another. Seaborne commerce accounts for over 80 percent of trade among nations, and today exceeds 3.5 billion tons per year. Whether for recreation, commercial transport, or military navigation, near-shore areas are heavily used. Newsworthy events such as collisions, tanker spills, or groundings are vivid reminders of the problems faced in coastal zones.

Another time-honored use of the oceans--fishing--is likewise concentrated in coastal waters. While tuna and salmon can be fished in the open ocean, most fisheries are found within 200 miles of the coast. World fish catches have grown as fishing gear has become more sophisticated and expanding populations search for new sources of protein. From 1950 to 1970, the total world catch tripled to roughly 70 million metric tons a year. It reached as high as 100 million metric tons in the early 1990s, but has since begun to drop. With careful management, the take from this renewable resource could be sustained. However, the creation of 200-mile exclusive economic zones has not been generally accompanied by restraint or attention to the long-term growth of stocks, and depletion of important fish stocks has increasingly occurred.

Another coastal activity that must be reconciled with other resource uses is reliance on the oceans for waste disposal. Of a world population of 5.6 billion, 3.5 billion live in coastal regions. These populations use adjacent waters to accommodate the disposal of waste from industry, river runoff, or direct disposal. Over 80 percent of ocean pollution today comes from land-based sources. The impact of intensive use of ocean resources and excessive dumping were first visible in enclosed seas such as the Mediterranean and the Baltic. Increasingly, there is concern with the overall health of the oceans as scientists better understand the oceans' critical role in moderating the world climate and weather systems.

Newer uses of the oceans have added to the prospects for crowding in the coastal waters. Recovery of offshore oil and gas from the continental margin (that part of the continent that extends underwater to the deep seabed) has proceeded with the march of technology. By the 1980s, as much as 30 percent of commercial oil and gas production came from offshore areas. As technology advances, more offshore areas will be susceptible to commercial recovery.

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New U.S. Maritime Strategy
Calls For Increased Near-
Shore Operations

Three important events or developments have driven today's naval strategy. First, the end of the Cold War marked a turning point for overall U.S. defense strategy. The absence of a single dominant threat called for a total rethinking of missions and objectives. Second, Operation Desert Storm provided a powerful example of the kind of regional warfare that the military should be prepared to handle in a post-Cold War world. It precipitated a full-scale review of naval strategy, tactics, and weapons systems. Third, the President's approval in 1990 of the Base Force concept indicated that the Navy would share in the budget reductions with the other services. Shrinking resources had to be factored in to updated naval doctrine.

The Maritime Strategy which had prevailed until 1990 focussed on a global war with the Soviet Union. It was a sea-control or blue-water strategy that envisioned naval engagement of Soviet forces at sea. It assumed that the central battle front in Europe would rely on rapid reinforcement from the United States, which would require securing sea lines of communication. Long-range air defense from anti-ship missiles was needed. Fleet defense was a fundamental aspect of this doctrine, as was a certain independence of naval action.

The new concept, detailed in the 1992 Navy and Marine Corps white paper, ...From the Sea, is based on power projection and crisis response in littoral regions. It recognizes that, for the foreseeable future, Navy control of the sea is not likely to be challenged. Rather, the threats that the Navy will be called upon to counter are expected to be regional, not global, and the potential opponents are diverse, potentially dispersed, and individually less powerful than the former Soviet Union. Rather than sea control, the new concept calls for control over littoral areas and support of land activities through integrated operations with the Marine Corps, Army, and Air Force. The strategy in ...From the Sea calls for the U.S. Navy to operate more actively in coastal zones, precisely the area that is being used most intensively and the area to which states are making increased claims.

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Coastal States Have Been
Claiming More Control Over
Near-Shore Areas

As ocean resources have become scarcer and crowding has occurred, governments have tried to regulate or lay claim to these resources. Where possible, "rules of the road" have been created to regulate the activities of multiple users. Navigation and safety codes and shipping lanes are examples of such coordination. In other cases, the value of ocean resources has prompted coastal states to seek to appropriate areas that were previously viewed as global commons, primarily through coastal states' extension of their national jurisdiction to ever-larger offshore areas. Ongoing efforts to establish rules to govern ocean uses have resulted in an evolving legal regime, or "law of the sea."

In the twentieth century, a succession of international conferences has tackled the issue of which offshore areas could be claimed by coastal states. At these conference, coastal states have claimed rights over larger offshore areas. In 1930, the debate focused on whether the territorial sea should be three or four miles. (The territorial sea is a zone of full national sovereignty, with the important exception of the right of innocent passage by foreign vessels.) In 1958 and 1960, the debate was on a six-mile territorial sea and an additional six-mile contiguous zone. Furthermore, the 1958 Convention on the Continental Shelf, granted coastal states "sovereign rights" to the resources of the seabed out to the depth of 200 meters or to the depth at which exploitation is possible.

The Continental Shelf Convention made obvious what had been implicit until then--that technology-driven appropriation of coastal resources might continue indefinitely until the oceans were fully divided among littoral states. Concern with this prospect prompted the United States in the 1960s to initiate discussions seeking a firm legal regime delimiting offshore claims. As the preeminent maritime power, the U.S. interest in preserving navigational freedom was predictable. At the same time, the Soviet Union was developing an interest in a blue water navy, and began to have similar concerns.

Neither the U.S. nor the Soviet Union was comfortable with the concept of a twelve-mile territorial sea, considering that universal application of such a concept would overlap more than 135 international straits. The definition of "innocent passage" in a 1958 convention did not allow for overflight, and submarines were required to navigate on the surface. Thus, Washington and Moscow agreed that a worldwide twelve-mile territorial sea would be acceptable only if freedom of navigation through and over all international straits were guaranteed.

The Third UN Conference on the Law of the Sea, from 1973 through 1982, addressed both this issue and a wide variety of additional issues related to the oceans. It produced the December 10, 1982, U.N. Convention on the Law of the Sea (LOS Convention), which sought to provide a comprehensive legal framework covering virtually all uses of the oceans, and the attendant rights and obligations of states. It achieved consensus on the extent of jurisdiction that states may exercise offshore: a territorial sea of 12 nautical miles (with a contiguous zone of an additional 12 miles for customs, fiscal, immigration and sanitary regulation); coastal state jurisdiction over resources in an Exclusive Economic Zone (EEZ) of 200 miles; and coastal state jurisdiction over the continental shelf in cases where it extends beyond the EEZ.

Within these offshore zones, the treaty sought to balance coastal state rights with provisions to preserve explicit rights of navigation and overflight. Passage through and over archipelagos and straits used for international navigation was guaranteed. Further, guidelines were provided for the conservation of fisheries, the protection of littoral waters from all sources of pollution (including ships, dumping, seabed mining, and land based sources), and the conduct of marine scientific research in coastal areas.

President Reagan announced in 1983 that the U.S. would act in accordance with the LOS Convention. The U.S. began to expand its offshore claims to those admitted by the treaty. President Reagan proclaimed an 200-mile EEZ in 1983 and a 12-mile territorial sea in 1988.

Additionally, the Reagan, Bush, and Clinton administrations all continued the Freedom of Navigation program underway since the Carter administration. The objective of the program has been to ensure that other states recognize the legal right to operate freely in international waters and respect the navigational provisions of the LOS Convention. Since 1979, U.S. military ships and aircraft have asserted navigational rights against excessive claims of more than thirty-five countries, at the rate of thirty to forty per year. The most well-known of these operations was the 1986 challenge to Libya's claims to the Gulf of Sidra. In 1989, the U.S. came to an understanding with the Soviets on a "Uniform Interpretation of Rules of International Law Governing Innocent Passage," consistent with the LOS Convention.

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Changing International
Attitudes Toward State
Control of Economic Activity
Have Made Possible An
Agreement on Seabed Mining

The LOS Convention did not, however, manage to balance all different interests. Specifically, Chapter XI, dealing with mining of the deep seabed beyond national jurisdiction, was unacceptable to the United States and most other industrialized countries. This part of the Convention was the casualty of two forces: the then-prevailing New International Economic Order debate that pitted North against South, and the interest of certain developing coastal states in protecting extreme offshore claims by staving off a consensus treaty.

Chapter XI provided for resource transfers from the North to the South, and created a cumbersome international bureaucracy to control access to deep sea mining through a licensing procedure that would require large fees up front, mandate transfer of technology to an operating entity called "the Enterprise," and limit production in order to protect land-based producers. Written over the objections of mining interests, this part of the Convention promised to deter investment in seabed mining even if it were to become economically viable. Relying on their numbers and support from some developed countries, the developing country text was imposed over the opposition of those countries most likely to have an interest in--and to be capable of--mining deep seabed nodules. Primarily because of deep objections to the provisions for seabed mining, the U.S. refused to sign the LOS Convention.

Throughout the 1980s, the U.S. continued to steadfastly oppose the seabed mining provisions of the LOS Convention, and urged its allies to do likewise. This consistent policy began to pay off in the wake of the large transformations that took place in the international political system in the late 1980s and early 1990s. The collapse of the Soviet system signalled the non-viability of the statist economic models that had inspired the seabed mining text. As Eastern Europe moved to adopt market economies, the provisions of the treaty on seabed mining were increasingly recognized as anachronistic and unworkable. It also became apparent to the developing countries that a law of the sea treaty without the major economic and maritime nations was of little value to them.

Consultations to review Part XI of the Convention were initiated in 1990. When the sixtieth state agreed to be bound by the treaty, the pressure grew to resolve outstanding issues before the treaty came into force one year later--on November 16, 1994. Consultations in May and June of 1994 completed work on the Agreement Relating to the Implementation of Part XI of the U.N. Convention on the Law of the Sea, which responds fully to the concerns of the U.S. and other industrial countries. It will be applied together with the 1982 Convention, and where there is an inconsistency, the Agreement is to prevail.


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