Was selden right?: The expansion of closed seas and its consequences

Stanford Journal of International Law

Volumn 47, Issue 1, 2011, Pages 1-50

  Shackelford, Scott J ^a,b,c  

^a INDIANA UNIVERSITY   (United States)

^b STANFORD LAW SCHOOL   (United States)

^c UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79960185511     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (459)

1. Gulf Oil Spill Is Biggest Environmental Disaster, EPA Official Says, ASSOCIATED PRESS, May 30, 2010, available at http://www.nola.com/news/gulf- oilspill/index.ssf/2010/05/gulf-oil-spill-is-biggest-envi.htrnl.
2. Ed Anderson, Oil Spill Has Cost BP $6 Billion So Far, Claims Manager Says, NOLA. COM (Aug. 24, 2010, 3:05 PM), http://www.nola.com/politics/ index.ssf/2010/08/oil-spill-has-cost-bp-6-billio.htnil.
3. See Allen O. Breed & Adam Geller, Well Capping Brings Relief but Fear of Abandonment, ASSOCIATED PRESS, Aug. 7, 2010, available at http://www.msnbc.msn. com/id/38608033/.
4. See also Richard Camilli et al., Tracking Hydrocarbon Plume Transport and Biodegradation at Deepwater Horizon, 330 SCIENCE 201 (2001), http://www.sciencemag.org/content/330/6001/201.full (reporting that substantial sub-surface hydrocarbon plumes remain evident in the Gulf of Mexico).
5. Nathan Hultman, Beyond Petroleum: The Broader Effects of the Deepwater Horizon Oil Spill, BROOKINGS INSTITUTION (Aug. 24, 2010), http://www.brookings. edu/opinions/2010/0824-bp-oil-spill-hultman. aspx.
6. The Scramble for the Seabed: Suddenly, A Wider World Below the Waterline, THE ECONOMIST, May 14, 2009, http://www.economist.eom/node/l3649265?story-id= 13649265.
7. United Nations Convention on the Law of the Sea art. 76, Dec. 10, 1982, 1833 U. N. T. S. 397, available at http://www.un.org/Depts/los/convention- agreements/texts/unclos/closindx.htm [hereinafter UNCLOS]. For example, Article 76 submissions by Arctic States are not made readily available to other States, making it difficult to challenge assertions and undermining CLCS decisions. Other problems with Article 76 include political rather than technical decision-making, and diverse timetables making transparent coordination between affected States difficult.
8. See Charles K. Ebinger & Evie Zambetakis, The Geopolitics of Arctic Melt, 85 INT'L AFF. 1215, 1215-18 (2009);
9. see also Anna Cavnar, Accountability and the Commission on the Limits of the Continental Shelf: Deciding Who Owns the Ocean Floor, 42 CORNELL INT'L L. J. 387, 387-88 (2009);
10. Philip Allott, Power Sharing in the Law of the Sea, 77 AM. J. INT'L L. 1, 18-20 (1983) (noting that the parties knew of the ambiguities of Article 76 at the time of the drafting of UNCLOS III).
11. The "transnational commons" or "global commons" are regions to which all nations have legal access, such as the high seas, outer space, the atmosphere, and cyberspace. See generally WILLIAM D. NORDHAUS, MANAGING THE GLOBAL COMMONS: THE ECONOMICS OF CLIMATE CHANGE 4 (1994);
12. Thomas Bräuninger & Thomas König, Making Rules for Governing Global Commons: The Case of Deep-Sea Mining, 44 J. CONFLICT RESOL. 604, 610 (2000). A global commons then is "a resource that it is difficult or impossible to exclude others from enjoying but that is degraded by use."
13. ROBERT O. KEOHANE & DAVID G. VICTOR, THE REGIME COMPLEX FOR CLIMATE CHANGE 10 (Harvard Kennedy School ed., 2009), available at http://belfercenter. ksg.harvard.edu/files/Keohane-Victor-Final-2.pdf. For clarity's sake, I use the term "transnational commons" instead of "global commons" as this broader term includes regions outside the Earth's geographic constraints, namely outer space and cyberspace. It should be noted though that the term "transnational commons" has been used in the literature before.
14. See, e.g., THE ECONOMICS OF THE TRANSNATIONAL COMMONS (Partha Dasgupta et al. eds., 1997);
15. Robert Dorfman, Protecting the Transnational Commons, in THE ECONOMICS OF THE TRANSNATIONAL COMMONS 210 (Partha Dasgupta et al. eds., 1997).
16. See Submissions to the Commission on the Limits of the Continental Shelf (CLCS), U. N. OFFICE OF LEGAL AFFAIRS, DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, http://www.un.org/Depts/los/clcs-new/commission-submissions.htm (last updated Oct. 22, 2010) [hereinafter Submissions to CLCS].
17. UNCLOS, supra note 6, art. 76 (defining the continental shelf as: "seabed and subsoil of the submarine areas that extend beyond [a coastal state's] territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance").
18. The CLCS has twenty-one member nations, and was organized to facilitate delineation beyond a 322-kilometer (200-mile) economic zone that Russia, the United States, Canada, Norway, and Denmark have in the Arctic under UNCLOS III, demonstrating the importance of the Arctic continental shelf even at the birth of UNCLOS. See Commission on the Limits of the Continental Shelf (CLCS) Purpose, Functions and Sessions, U. N. OFFICE OF LEGAL AFFAIRS, DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, http://www.un.org/Depts/los/clcs-new/commission- purpose.htm#Purpose (last visited Nov. 21, 2010).
19. DEV. CONCEPTS AND DOCTRINE CTR., U. K. MINISTRY OF DEFENCE, STRATEGIC TRENDS PROGRAMME: GLOBAL STRATEGIC TRENDS-OUT TO 2040, at 63 (4th ed. 2010) [hereinafter DCDC].
20. Interview with Klaus Dodds, Professor of Geopolitics, Royal Holloway University, in London, U. K. (Apr. 7, 2010).
21. See generally E. W. CHRISTIE, THE ANTARCTIC PROBLEM (1951) (analyzing the dispute between Great Britain, Argentina, and Chile with respect to Antarctic claims).
22. As of January 2010, five of the seven claimants to the Antarctic (Australia, Argentina, New Zealand, Norway and the UK) have presented claims to the CLCS. Australia's was the first to be submitted, and the first to be acted on save for the portion dealing with the Antarctic outer continental shelf. James Crawford, The Antarctic Treaty After Fifty Years, in INTERNATIONAL LAW AND DISPUTE SETTLEMENT 271, 278 (Duncan French et al. eds., 2010). Argentina is asserting control over continental shelf delimitations extending all the way to the South Pole threatening the stability of the Antarctic Treaty System and potentially giving birth to a twenty-first century "Antarctic problem." Jorge Guzman, International Law and Antarctic Neoterritorialism: Enforcing UNCLOS Provisions on Continental Shelf and the Challenges for the Antarctic Treaty System and the "Modus Vivendi" in the South Cone of America, Lecture at the Centre for Latin American Studies, Univ. of Cambridge (Feb. 25, 2010);
23. E. W. CHRISTIE, THE ANTARCTIC PROBLEM 7 (1951). Article VI of the Antarctic Treaty states that: "nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area."
24. Antarctic Treaty art. 6, Dec. 1, 1959, 12 U. S. T. 794
25. U. N. T. S. 71. In effect, through State practice this allows the UNCLOS to be applicable within the ATS. According to Crawford, the current view is that "the Treaty does not affect existing rights of high seas navigation in the Southern Ocean but that subject to this proviso, it does apply there."
26. Crawford, supra note 14, at 273. This is in part because the doctrine on continental shelves was in existence prior to the ATS, even though it was significantly altered as a result of the 1982 UNCLOS III negotiations. See Convention on the Continental Shelf, April 29, 1958
27. U. S. T. 471
28. U. N. T. S. 311 (entry into force on June 10, 1964, after the Antarctic Treaty).
29. MALCOLM SHAW, INTERNATIONAL LAW 517 (5th ed. 2003). Under UNCLOS, territorial seas are measured from a defined baseline, normally the low-water line along the coast. UNCLOS, supra note 6, art. 13.
30. KEMAL BASLAR, THE CONCEPT OF THE COMMON HERITAGE OF MANKIND IN INTERNATIONAL LAW 225-26 (1998).
31. Hearings on the U. N. Convention on the Law of the Sea (Treaty Doc. 103-39): Hearing Before the S. Comm. on Foreign Relations, 108th Cong. 113, 114-15 (2004) (detailing the technological capability of drilling operators to depths of 9, 000 feet).
32. Wolfgang Friedmann, Selden Redivivus-Towards a Partition of the Seas?, 65 AM. J. INT'L L. 757, 758 (1971).
33. DCDC, supra note 11, at 24 (defining the global commons as: "those regions used jointly by the members of a community. They include, but are not limited to, those parts of the earth's surface beyond national jurisdictions such as the open ocean and the living resources found there, the atmosphere and orbital Space. The only landmass that may be regarded as part of the 'global commons' is Antarctica.").
34. Interview with Samuel McDonald, Office of the Legal Advisor, U. S. Dep't of State, in Wash., D. C. (Jan. 29, 2010).
35. See Richard Baird, Political and Commercial Interests as Influences in the Development of the Doctrine of the Freedom of the High Seas, 12 QUEENSLAND UNTV. TECH. L. J. 274, 286 (1996).
36. See Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?, 21 WIS. INT'L L. J. 409, 410 (2003). There remains no consensual definition of the CHM concept amongst legal scholars or policymakers. Developing and developed nations disagree over the extent of international regulation required to equitably manage common pool resources, and the degree of sovereignty nations may exercise over these resources.
37. See John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept, 97 AM. J. INT'L L. 782, 786 (2003). Although no universal definition exists, most conceptions of the CHM share five primary elements. First, there can be no private or public appropriation of the commons. Second, representatives from all nations must manage common resources. Third, all nations must actively share in the benefits acquired through exploitation of the common heritage region. Fourth, the region must be used for peaceful purposes. Fifth, the commons should be preserved for the benefit of future generations. Frakes, supra note 22, at 411-13. But disputes are rampant in the international community over the continued applicability of these principles, and indeed whether the concept of the transnational commons still resonates at a time in which the reason for its existence is being challenged due to technology opening up these areas to economic development and occupation.
38. See DCDC, supra note 11, at 11 (noting that since most of the remaining unexploited resources across the world are located within the transnational commons, technology could move these areas long at the frontiers of international relations to the core).
39. Id. at 15, 40 (arguing that the transnational commons is increasingly a resource domain vital to the world economy, and predicting that "[t]he economic prosperity of many states will depend on functioning globalised markets and access to the global commons...[and that] access to the 'global commons' will be a priority for virtually all states."). The economic potential of the commons renders global cooperation a primary imperative for policymakers, including the proactive development of appropriate legal frameworks. Yet the international community is reassessing commons management given the changing geopolitical context, rapid technological advances, and rising scarcity. As a result, the twenty-first century is so far reminiscent of the twentieth in that the commons remain an arena of both international cooperation and conflict.
40. Id. at 15 (predicting that the rise of multipolar politics in which emerging markets gain increased international power in an age of increasing resource scarcity will drive international conflict). Cf. Robert N. Haass, The Age of Nonpolarity: What Will Follow U. S. Dominance, 87 FOREIGN AFF. 44, 44 (2008).
41. See infra p. 9.
42. Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources, 58 INT'L ORG. 277, 277 (2004).
43. International spaces are analogous to the transnational commons, though they are typically limited geographically and do not include cyberspace or the atmosphere. See generally Paul A. Berkman, International Spaces Promote Peace, 462 NATURE 412, 412 (Nov. 2009) (noting that during the 1960 ratification debate in the U. S. Senate, the polar scientist and explorer Laurence Gould testified that the Antarctic Treaty was "a document unique in history that may take its place alongside the Magna Carta and other great symbols of man's quest for enlightenment and order.").
44. Elinor Ostrom, Foreword to SUSAN J. BUCK, THE GLOBAL COMMONS: AN INTRODUCTION xiii (1998).
45. Examples of how technology has influenced the management of the transnational commons abound. Technology used to measure greenhouse gas emissions has allowed for the widespread use of emission credits schemes, influencing atmospheric governance. Cf. NENAD SARUNAC, ARMSTRONG PROJECT FINAL REPORT (2007), available at http://www.epa.gov/airmarket/resource/docs/ armstrong.pdf. Developments in cybersecurity and data monitoring are allowing for increased national regulation and censorship of the Internet.
46. See Ronald J. Deibert & Nart Villeneuve, Firewalls and Power: An Overview of Global State Censorship of the Internet, in HUMAN RIGHTS IN THE DIGITAL AGE 111, 111 (2005). While private corporations are increasingly active in space, they will become even more so if the Obama Administration's new plan for NASA is implemented.
47. See Kenneth Chang, Obama Calls for End to NASA's Moon Program, N. Y. TIMES, Feb. 1, 2010, at A16, available at http://www.nytimes.com/2010/02/02/ science/02nasa.html.
48. Richard J. Payne, Mining the Deep Seabed: The Political, Economic and Legal Struggle, 40 J. POL. 933, 933 (1978).
49. Jane Qiu, China Outlines Deep-Sea Ambitions, NATURE NEWS, July 6, 2010, http://www.nature.com/news/2010/100706/full/466166a.html.
50. See Paul A. Berkman & Oran R. Young, Governance and Environmental Change in the Arctic Ocean, 324 SCIENCE 339, 339 (2009).
51. Technical change, notably increases in efficient harvesting, has been a critical factor threatening fish stocks around the world. Improvements in harvesting technology and the resultant pressures were major factors contributing to the emergence of modem rights-based fisheries management; as with fish, so too with property rights regimes in the commons. See ROGNVALDUR HANNESSON, THE PRIVATIZATION OF THE OCEANS 26 (2004);
52. Brian R. Copeland & M. Scott Taylor, Trade, Tragedy, and the Commons, 99 AM. ECON. REV. 725, 740 (2009).
53. Six neoclassical solutions exist to the open access problem analogous to a free-for-all: private property, input quotas, input rights, output quotas, output rights, and taxation. Quotas and rights are common property solutions. GLENN G. STEVENSON, COMMON PROPERTY ECONOMICS: A GENERAL THEORY AND LAND USE APPLICATIONS 63 (1991).
54. See infra pp. 30-34.
55. Gennady M. Danilenko, Outer Space and the Multilateral Treaty-Making Process, 4 HIGH TECH. L. J. 217, 218 (1989).
56. KEOHANE & VICTOR, supra note 7, at 2 (arguing that "the structural and interest diversity inherent in contemporary world politics tends to generate the formation of regime complexes rather than a comprehensive, integrated [climate] regime.").
57. Joyner, for example, uses five different terms in his article on the CHM, including: concept, notion, doctrine, regime, and ideal. Christopher C. Joyner, Legal Implications of the Concept of the Common Heritage of Mankind, 35 INT'L & COMP. L. Q. 190, 190-198 (1986).
58. BASLAR, supra note 16, at 4.
59. See Wolfgang Lutz, Warren C. Sanderson & Sergei Scherbov, The End of World Population Growth, in THE END OF WORLD POPULATION GROWTH IN THE 21ST CENTURY: NEW CHALLENGES FOR HUMAN CAPITAL FORMATION & SUSTAINABLE DEVELOPMENT 17, 17 (Wolfgang Lutz, Warren C. Sanderson & Sergei Scherbov eds., 2004).
60. Scot Aaron, Some Statistics on Limited Natural Resources, http://scotaaron. com/resources2.html (last visited Jan. 22, 2010).
61. U. S. ENERGY INFORMATION ADMINISTRATION, DOE/EIA-0484, INTERNATIONAL ENERGY OUTLOOK 2009 (2009), http://www.eia.doe.gov/oiaf/archive/ieo09/world. html.
62. Clifford Krauss, Commodity Prices Tumble, N. Y. TIMES, Oct. 13, 2008, at B1, http://www.nytimes.com/2008/10/14/business/economy/14commodities.html;
63. I. D. Ivanov, The Meaning of Interdependence and Its Implications for the Future of Global Cooperation, in THE FUTURE ROLE OF THE UNITED NATIONS IN AN INTERDEPENDENT WORLD 137, 139 (John P. Renninger ed., 1988) (noting that up to one-third of metals are now made from recycled materials, while new cars contain more than a quarter less steel and three times less copper now than they did in the 1950s.). For example, deep seabed exploitation was initially overvalued, owing to underestimated costs, low metal prices, excess land-based capacity, risk, environmental considerations, and the fact that many of these minerals were found in abundance in areas now under national jurisdiction.
64. See SAID MAHMOUDI, THE LAW OF DEEP SEA-BED MINING 335 (1987). As a result, it is unlikely that exploitation of the deep seabed will occur in the next two decades.
65. See Porter Hoagland, Manganese Nodule Price Trends: Dim Prospects for the Commercialization of Deep Seabed Mining, 19 RESOURCES POL'Y 287, 288 (1993).
66. Rising Cost of Crude Oil to Push up Petrol Price, BELFAST TELEGRAPH, Apr. 7, 2010, http://www.belfasttelegraph.co.uk/news/lcK:al-national/rising-cost-of- crude-oil-to-push-up-petrol-price-14757235.html.
67. Will Smale, Metal Prices Rising Strongly Again, BBC NEWS (Feb. 15, 2010, 11:28 PM), http://news.bbc.co. Uk/l/hi/business/8509199.stm.
68. BUCK, supra note 29, at 75.
69. Id. at 76. During this period, no State could extend its jurisdiction beyond its shore, defined as the high-water mark.
70. Robert J. Wiler, The Three-Mile Territorial Sea: Its Origins and Implications for Contemporary Offshore Federalism, 32 VA. J. INT'L L. 681, 689 (1992). Asian and Arab nations also followed the principles of freedom of navigation and trade.
71. See R. P. ANAND, ORIGIN AND DEVELOPMENT OF THE LAW OF THE SEA 83 (1982).
72. See NANDASIRI JASENTULIYANA, SPACE LAW: DEVELOPMENT AND SCOPE 3 (1992);
73. cf. J. E. S. Fawcett, How Free Are the Seas?, 49 INT'L AFF. 14, 14 (1973) (discussing the increase in maritime claims by sovereign nations).
74. See BUCK, supra note 29, at 75-76.
75. In the tenth century England claimed the North Sea and the English Channel as its exclusive "Britannic Ocean. " JASENTULIYANA, supra note 49, at 3. By 1269, the Venetians were charging tolls for all vessels entering the Adriatic Sea, a practice that continued until the seventeenth century.
76. SAYRE A. SWARZTRAUBER, THE THREE-MILE LIMIT OF TERRITORIAL SEAS 11 (1972);
77. BUCK, supra note 29, at 76. The Baltic Sea came under competing claims from Denmark, Sweden, and Poland.
78. THOMAS W. FULTON, THE SOVEREIGNTY OF THE SEA 4 (1911).
79. BUCK, supra note 29, at 76.
80. Id. at 77.
81. Id.
82. FULTON, supra note 50, at 6.
83. BUCK, supra note 29, at 78.
84. Id. at 75.
85. See MoAnica Vieira, Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden 's Debate on Dominion over the Seas, 64 J. HIST. IDEAS 361, 361 (2003) (noting that the freedom of the seas was not originally a norm, but a general value).
86. HUGO GROTIUS, FREEDOM OF THE SEAS 39 (1916);
87. see also Note, Meaning of "High Seas", 7 HARV. L. REV. 372-73 (1894).
88. JASENTULIYANA, supra note 49, at 4. For a general discussion on how the LOS regime has influenced Antarctic governance
89. see THE ANTARCTIC LEGAL REGIME (Christopher C. Joyner & Sudhir K. Chopra eds., 1988). Grotius also argued that the Pope could not exercise authority over the oceans for two reasons: (1) the oceans are uninhabited, meaning that he had no spiritual authority; and (2) Jesus renounced temporal authority, so the Pope cannot have power that God renounced.
90. See BUCK, supra note 29, at 79.
91. Fawcett, supra note 49, at 14;
92. see also infra p. 26, 40-42.
93. Baird, supra note 21, at 287.
94. Id.
95. See ANAND, supra note 48, at 129-31. This period of time may be compared to the Roman domination of the Mediterranean.
96. Id. at 82-83.
97. BUCK, supra note 29, at 78.
98. Id. at 80;
99. see also Scott Allen, National Interest and Collective Security in the Ocean Regime, in OCEAN GOVERNANCE: STRATEGIES AND APPROACHES FOR THE 21ST CENTURY 20, 23 (Thomas A. Mensah ed., 1996).
100. See Anna Petherick, "Roving Bandits" Depleting Fisheries, Experts Say, NAT'L. GEO. NEWS (Mar. 16, 2006), http://news.nationalgeographic. com/news/2006/03/0316-060316-ocean-bandits.html.
101. Buck, supra note 29, at 79.
102. Id. at 80.
103. Id. at 80 (arguing that the cannon-shot rule was advocated first by the Dutch in 1610, and soon thereafter by the Belgians and the French to protest English naval supremacy).
104. FULTON, supra note 50, at 541-47 (noting that other ideas used the mid-channel principle, line of sight, and the notion that the territorial sea should be measured by the nation's dependence on fishing, none of which gained widespread acceptance).
105. Id. at 549;
106. BUCK, supra note 29, at 81.
107. BUCK, supra note 29, at 81 (stating that three miles was the distance used by the United States in 1793 when it defined its neutral coastal zone during the war between Britain and France).
108. Convention Respecting Fisheries, Boundary, and the Restoration of Slaves, U. S.-Gr. Brit., Oct. 20, 1818, in 8 RICHARD PETERS, PUBLIC STATUTES AT LARGE 248 (1848).
109. BUCK, supra note 29, at 81. The three-mile limit was confirmed in the five treaties that Great Britain signed with France between 1839 and 1882. These treaties are the Convention of 1839, the Convention of 1857, the Convention of 1859 (not ratified by France), the Convention of 1867 (terms similar to the 1859 convention), and the multilateral North Sea Fisheries Convention of 1882. By 1853, Britain passed laws establishing the three-mile limit for its possessions in North America, in 1877 for the Pacific, and in 1881 Cyprus, and Australia.
110. Id.
111. see also SWARZTRAUBER, supra note 50, at 70-71.
112. 'Twee Gebroeders", (1800) 165 Eng. Rep. 422 (Admlty) 423;
113. C. Robinson 162, 163. "
114. Id.
115. The "Anna", (1805) 165 Eng. Rep. 809 (Admlty) 814-15;
116. C. Robinson 373, 385c.
117. "The Ann", 1 F. Cas. 926 (C. C. D. Mass. 1812) (No. 397).
118. The chronology is as follows: Spain (1828), Belgium (1832), Greece (1869), the Netherlands (1882), Denmark (1882), Italy (1888), and the Ottoman Empire (1893). BUCK, supra note 29, at 82. Spain soon though changed its policy to a six-mile zone. Japan adopted the three-mile zone in 1879. 2 GREAT BRITAIN AND THE LAW OF NATIONS: A SELECTION OF DOCUMENTS ILLUSTRATING THE VIEWS OF THE GOVERNMENT IN THE UNITED KINGDOM UPON MATTERS OF INTERNATIONAL LAW, 183-84 (Herbert A. Smith ed., 1935). Russia proclaimed a limit 100-mile to protect its seal resources highlighting the importance of resource scarcity in national claims on the oceans, though it eventually relented through bilateral conventions to the three-mile rule. This occurred in separate treaties with the United States (1824), and Britain (1825).
119. Thomas Bay, The Three-Mile Limit, 22 AM. J. INT'L L. 503, 518-521 (July 1928).
120. Friedmann, supra note 18, at 768.
121. BUCK, supra note 29, at 82.
122. The chronology is: Ecuador (1857), El Salvador (1860), Argentina (1869), and Honduras (1880).
123. Id.
124. Id at 83.
125. Corfu Channel (U. K. v. Albania), 1949 I. C. J. 4 (April 9).
126. Id.
127. It would not be until Articles 34-45 of UNCLOS III that international straits would be regulated. See MICHAEL AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 172 (6th ed. 1987). These articles established a liberal regime for right of passage, making it so halting a ship in transit was only permitted if it had violated international regulations for the protection of the marine environment
128. See Bernard H. Oxman, Summary of the Law of the Sea Convention, in THE LAW OF THE SEA: U. S. POLICY DILEMMA 147, 151 (Bernard Oxman et al. eds., 1983).
129. See Penelope Warne, Arctic Scramble: International Law and the Continental Shelf, ABERDEEN PRESS & J., Oct. 1, 2007, at 24. EEZs were created as a response to the over exploitation of coastal fisheries by a handful of developed nations under the freedom of the seas-a classic application of the tragedy of the unmanaged commons. The notion was to suffocate the res communes regime and protect local fisheries, which garnered early support from developing nations. BUCK, supra note 29, at 82.
130. See MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES: INTERNATIONAL RELATIONS AND CUSTOMARY INTERNATIONAL LAW 91-92 (1999) (noting that the Truman proclamation was so successful due to three reasons: (1) the dominant political position of the United States in 1945; (2) there was no requirement of occupation, which was attractive to small developing States; and (3) many States stood to benefit due to the commonality of continental shelves);
131. see also R. R. CHURCHILL & A. V. LOWE, THE LAW OF THE SEA 144-46 (1983) (suggesting that before this time, any State could establish property rights over the high seas through occupation).
132. Proclamation No. 2667: Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 64 Fed. Reg. 48, 701 (Sep. 28, 1945) (reading in pertinent part "Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.").
133. Between 1946 and 1950, Argentina, Chile, Peru and Ecuador all extended their sovereign rights to a 200 nautical mile (370 km) distance. Other nations extended their territorial seas to 12 nautical miles. By 1967 only 25 nations still used the old 3 nautical miles limit, 66 nations had set a 12 nautical mile territorial limit, and eight had set a 200 nautical mile limit. See Div. for Ocean Affairs & the Law of the Sea, Office of Legal Affairs, U. N. Secretariat, Table of Claims to Maritime Jurisdiction, http://www.un. Org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table-summary-of-claims.p df (last updated July 31, 2010);
134. see also George V. Galdorisi & Alan G. Kaufman, Military Activities in the Exclusive Economic Zone, 32 CAL. W. INT'L L. J. 253, 258-67 (2002).
135. See SUZETTE V. SUAREZ, THE OUTER LIMITS OF THE CONTINENTAL SHELF 245 (2008).
136. See generally 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY (Satya N. Nadan et al. eds., 1995).
137. Fisheries (U. K. v. Norway), 1951 I. C. J. 116 (Dec. 18).
138. MARVIN SOROS, BEYOND SOVEREIGNTY 268 (1986).
139. Friedmann, supra note 18, at 763.
140. North Sea Continental Shelf (F. R. G./Den.; F. R. G./Netherlands), 1969 I. C. J. 3 (Feb. 20);
141. Wolfgang Friedmann, The North Sea Continental Shelf Cases-A Critique, 64 AM. J. INT'L L. 229, 229 (1970).
142. Friedmann, supra note 94, at 235.
143. In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I). UNCLOS I resulted in four treaties: Convention on the Territorial Sea and Contiguous Zone (Territorial Seas Convention), Convention on the Continental Shelf, Convention on the High Seas, and Convention on Fishing and Conservation of Living Resources of the High Seas. Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U. S. T. 1606
144. U. N. T. S. 205;
145. Convention on the High Seas, Apr. 29, 1958, 13 U. S. T. 2312, 450 U. N. T. S. 82;
146. Convention on the Continental Shelf, supra note 14;
147. and Convention on Fishing and Conservation of Living Resources of the High Seas, Apr. 29, 1958, 17 U. S. T. 138, 559 U. N. T. S. 285.
148. See BASLAR, supra note 16, at 43-45.
149. Sea Around Us Project, PEW CHARITABLE TRUSTS, http://www.seaaroundus.org/ eez/ (last visited Jan. 22, 2011).
150. See Convention on the Territorial Sea, supra note 96;
151. Convention on the Continental Shelf, supra note 14.
152. ROSS ECKERT, THE ENCLOSURE OF OCEAN RESOURCES: ECONOMICS AND THE LAW OF THE SEA 5 (1979).
153. BUCK, supra note 29, at 85. Well-defined property rights are of paramount importance in the success of natural resource governance.
154. See Tracy Yandle, Property Rights and Ocean Governance, 314 SCIENCE 593, 593 (2006) (noting that "Property rights are not a unitary concept, but rather a bundle of separable rights that can be split or shared in different ways... including access (right to enter), withdrawal (right to extract), management (right to regulate use), exclusion (right to deny access), and alienation (right to sell, lease, or transfer).").
155. Fisheries Jurisdiction (U. K. v. Ice.), 1974 I. C. J. 3, 23-29 (July 25).
156. See A. V. Lowe and Colin Warbrick, Current Legal Developments: Law of the Sea, 37 INT'L. & COMP. L. Q. 412, 412 (1988) (stating that it was not until the development of the Chunnel that Britain passed the Territorial Sea Act of 1987, arguing that it would be easier to work if jurisdiction was established);
157. see also Territorial Sea Act 1987 (Commencement) Order 1987, S. I. 1987/1270) (U. K.).
158. BUCK, supra note 29, at 86.
159. See BASLAR, supra note 16, at 49.
160. The HMS Challenger, a British survey ship, first discovered manganese nodules in the 1870s. The nodules look like brown or black potatoes, vary in size from five to ten centimeters in diameter, and are composed of 37 elements, four of which in particular are valuable: manganese, iron, copper, and cobalt. They generally only occur at a depth of 2-4 miles, and grow very slowly. It is estimated that there are roughly 70 pounds per square mile of manganese nodules, and that 1.5 trillion tons of manganese, nickel, copper, and cobalt in the form of nodules lie on the seabed, mainly in the Pacific Ocean.
161. See BUCK, supra note 29, at 90.
162. John Alton Duff, UNCLOS and the New Deep Seabed Mining Regime: The Risks of Refuting the Treaty, 19 SUFFOLK TRANSNAT'L L. REV. 1, 5-7 (1995).
163. Prominent during the UNCLOS negotiations was the "Group 77" (G77), composed of a large proportion of the ninety States that had gained independence since 1945. Most were coastal nations and had considerable voting strength as a whole. Together with the older developing countries, these newcomers were conscious of the need to redefine international law doctrines to better reflect their interests. Private entities and the two superpowers also held strong opinions regarding UNCLOS, though the U. S. and U. S. S. R. differed with respect to the CHM concept. The Soviet bloc feared monopolization of the resources of the deep seabed by the technologically advanced Western States. The U. S. insisted that seabed mining was lawful and could be carried out at any time. Such a bifurcation of approaches reflects a varying philosophical and cultural bent. BUCK, supra note 29, at 41-49;
164. see also Friedmann, supra note 18, at 768.
165. The NIEO was born in part from lack of development aid from the developed nations to the developing world, with assistance falling from.53% to.3% of total developed world GDP from the 1960s to the 1980s. See T. M. Franck, Lessons of the Failure of the NIEO, 15 CANADIAN COUNCIL ON INT'L. L. 82, 88-89 (1985) (noting that developing States were emboldened by the success of the OPEC oil embargo and tried to make up for this shortfall through the redistribution of the natural resources in the transnational commons).
166. G. A. Res. 3201 (S-VI), U. N. Doc. A/RES/3201 (S-VI), at 3 (May 1, 1974).
167. See generally Hans W. Arndt, The New National Economic Order: A Retrospect, 28 INT'L REV. EDUC. 431, 431 (1982).
168. R. H. Green, Introduction to LEGAL ASPECTS OF THE NEW INTERNATIONAL ECONOMIC ORDER 26 (Kamal Hossain ed., 1980).
169. LOTTA VIIKARI, FROM MANGANESE NODULES TO LUNAR REGOLITH: A COMPARATIVE LEGAL STUDY OF THE UTILIZATION OF NATURAL RESOURCES IN THE DEEP SEABED AND OUTER SPACE 42 (2002).
170. Concrete examples include Malta's UNCLOS proposal and Argentina's Moon Treaty proposal to make the deep seabed and outer space common heritage areas. See Edward Guntrip, The Common Heritage of Mankind: An Adequate Regime for Managing the Deep Seabed?, 4 MELB. J. INT'LL. 376, 395 (2003).
171. VIIKARI, supra note 112, at 33.
172. G. A. Res. 2749 (XXV), 17, U. N. Doc. A/RES/25/2749, at 24 (Dec. 17, 1970).
173. U. N. GAOR, 22nd Sess., 1st Com., 1525th mtg., U. N. Doc. A/C.1/PV.1525 (Nov. 10, 1967).
174. VIIKARI, supra note 112, at 44-47.
175. See also Friedmann, supra note 18, at 768;
176. Graham Nicholson, The Common Heritage of Mankind and Mining: An Analysis of the Law as to the High Seas, Outer Space, the Antarctic, and World Heritage, 6 N. Z. J. ENVTL. L. 177, 177 (2002).
177. BUCK, supra note 29, at 87. Arguably, that division is exactly what is happening now in the Arctic, which will be discussed further on p. 37.
178. Id at 88.
179. Id.at 84.
180. Marcel Berlins, A Sea of Troubles for International Law Makers, TIMES (LONDON), June 12, 1974, at 16. To accomplish its goals, the Conference was organized into three Committees. Committee I was for the seabed. Committee II for maritime law related to the territorial seas and EEZs, among other topics. And Committee III dealt with technology transfer, scientific research, and marine' pollution. BUCK
181. supra note 29, at 86-88.
182. BUCK, supra note 29, at 87-88.
183. Tullio Treves, United Nations Convention on the Law of the Sea Montego Bay, AUDIO LIBRARY OF INTERNATIONAL LAW, http://untreaty.un.org/cod/avl/ha/ uncls/uncls.html (last visited Dec. 7, 2010). These 340 Articles may be contrasted with the 14 Articles in the Antarctic Treaty.
184. Robert A. Goldwin, Common Sense vs. "The Common Heritage", in THE LAW OF THE SEA: U. S. POLICY DILEMMA, supra note 85, at 59-60.
185. BUCK, supra note 29, at 88.
186. Communist nations in particular were caught in the middle of developed and developing nations since they had the technical capabilities to mine the deep seabed, but often lacked the resources.
187. Id.
188. UNCLOS, supra note 6, art. 137, para. 2.
189. Friedmann, supra note 18, at 768.
190. BUCK, supra note 29, at 89.
191. Id.
192. Id.
193. Id. at 90 (noting that developed nations balked at Part XI of UNCLOS III in particular, which can be read as an instrument heralding a shift to socialism that had no place in a capitalist global economy).
194. Among other things, the United States objected to Article 103, the Supremacy of UNCLOS law, cf. Treaty Establishing the European Economic Community, arts. 81-82, Mar. 25, 1957, 298 U. N. T. S. 11;
195. Treaty on European Union, July 29, 1992, 1992 O. J. (C 191) 109, and the compulsory jurisdiction concept.
196. See NATALIE KLEIN, DISPUTE SETTLEMENT IN THE UN CONVENTION ON THE LAW OF THE SEA 41 (2005).
197. VIKARI, supra note 112, at 70-72. For a general discussion of America's approach to multilateral institutions, see INIS L. CLAUDE, JR., STATES AND THE GLOBAL SYSTEM: POLITICS, LAW AND ORGANIZATION 102-11 (1988). UNCLOS also underscored the political tension in the 1980s, illustrated by the Reagan Administration rhetoric, which privileged market capitalism and individual freedom above communal necessities.
198. See JAMES ARNT AUNE, SELLING THE FREE MARKET: THE RHETORIC OF ECONOMIC CORRECTNESS 121 (2002).
199. For example, the United States claimed that three billion acres of coastal seabed in its EEZ were open to drilling. Deep Seabed Hard Mineral Resources Act of 1980, Pub. L. No. 96-283, 94 Stat. 553; Act of Interim Regulation of Deep Seabed Mining, Aug. 22, 1980, BGBL. I at 1457 (Ger). West Germany (1980, amended 1982), the United Kingdom (1981), France (1981), the Soviet Union (1982), Japan (1982), and Italy (1985) followed suit, pursuing national legislation and other schemes to develop the deep seabed.
200. VIIKARI, supra note 112, at 70-72.
201. In international maritime law, an EEZ is an area over which a State has special rights over the exploration and use of marine resources. Generally an EEZ extends to a distance of two hundred nautical miles. A coastal State may set laws, regulate use, and exploit resources within its territorial waters. Moreover, "[s]hips and vessels from any State have the right of innocent passage through the territorial waters of any coastal State [except in wartime], meaning they may pass peacefully and expeditiously without stopping at any port of the coastal state."
202. Wame, supra note 86, at 24; UNCLOS, supra note 6, art. 17. A coastal State may also claim a zone extending to twenty-four nautical miles beyond its territorial waters, which is called the contiguous zone. Within its contiguous zone, a coastal State may exercise certain special rights, such as control over illegal immigration and smuggling.
203. Id. art. 33.
204. BASLAR, supra note 16, at 226-27.
205. DCDC, supra note 11, at 67 (predicting that the Arctic has a strong potential for frontier conflict under the current governance regime).
206. BUCK, supra note 29, at 94 (noting that EEZs are also important with regards to fishing since the majority of the ocean's fish are located within two hundred miles of shore in areas of shallow continental shelf).
207. Cf. Richard G. Darman, The Law of the Sea: Rethinking U. S. Interests, 56 FOREIGN AFF. 373, 395 (1978).
208. This section serves as a brief summary of the CHM concept in the law of the sea as it is applied to resource extraction in the deep seabed. A comprehensive analysis of the CHM concept's various provisions is beyond the scope of this Article. Special attention will be paid to how technology, politics, and resource scarcity have driven the evolution of the CHM concept.
209. UNCLOS, supra note 6, art. 136. Part XI is the longest section of UNCLOS III, and the CHM concept forms the backbone of that section. BASLAR, supra note 16, at 206.
210. UNCLOS, supra note 6, art. 136.
211. Id. art. 1 (1).
212. Id. art. 133 (a). As for finding an exact definition of the CHM concept in the context of UNCLOS, Article 311 (6) provides: "States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be a party to any agreement in derogation thereof."
213. Id. art. 311 (6). Yet the CHM concept was amended by the 1994 New York Amendments, thus some scholars have surmised that these altered principles must not be at the "core" of the CHM, including technology transfer and, critically, supranational management.
214. BASLAR, supra note 16, at 207.
215. Vienna Convention on the Law of Treaties arts. 31-32, May 23, 1969, 1155 U. N. T. S. 332. The preamble of UNCLOS provides that the States parties desire to "develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that "the area of the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States"
216. UNCLOS, supra note 6, preamble.
217. See, e.g., G. A. Res. 2340 (XXII), U. N. Doc. A/2340 (Dec. 18 1967);
218. G. A. Res. 2467A (XXIII) U. N. Doc. A/2467 (Dec. 21, 1968);
219. G. A. Res. 2574D (XXIV), U. N. Doc. A/2574 (Dec. 15, 1969);
220. G. A. Res. 2749 (XXV), U. N. Doc. A/2749 (Dec. 17, 1970).
221. G. A. Res. 2749 (XXV), supra note 115, 19.
222. BASLAR, supra note 16, at 209;
223. see also Bradley Larschan & Bonnie C. Brennan, The Common Heritage of Mankind Principle in International Law, 21 COLUM. J. TRANSNAT'L L. 305, 305 (1983).
224. YUWEN LI, TRANSFER OF TECHNOLOGY FOR DEEP SEA-BED MINING: THE 1982 LAW OF THE SEA CONVENTION AND BEYOND 89-90 (1994).
225. BUCK, supra note 29, at 91.
226. Id.
227. L. D. M. Nelson, Some Observations on the Agreement Implementing Part XI of the 1982 Convention on the Law of the Sea, in OCEAN GOVERNANCE: STRATEGIES AND APPROACHES FOR THE 21ST CENTURY 203, 204 (Thomas A. Mensah ed., 1996).
228. D. H. Anderson, LOS Convention: Status and Prospects, 18 MARINE POLICY 494, 496 (1994). The Agreement also uses the principle of lex posterior derogat prior, meaning that, in the event of contradictions, the latter Agreement controls.
229. BASLAR, supra note 16, at 219.
230. President Bill Clinton remarked of the 1994 Amendments: "[B]y restructuring the seabed mining regime along with free market lines, [the Agreement] endorses the consistent view of the United States that the common heritage principle fully comports with private economic activity in accordance with market principles." William J. Clinton, Message from the President of the United States and Commentary Accompanying the United Nations Convention on the Law of the Sea and the Agreement relating to the Implementation of the Part XI Upon Their Transmittal to the United States Senate for its Advice and Consent, 7 GEO. INT'L ENVTL. L. REV. 77, 153 (1994). Other high-level U. S. government pronouncements on the CHM concept were issued by Ambassador James Roosevelt and President Lyndon Johnson. Ambassador Roosevelt stated: "Just as we believe that the assets which may accrue to man from his exploration of outer space should be shared universally, so we believe that what he finds beneath the sea may be used for international benefit-without infringing on the sovereign rights of nations."
231. N. S. REMBE, AFRICA AND THE INTERNATIONAL LAW OF THE SEA 37 (1980). In 1966, President Johnson said: "We must ensure that the deep seas and the ocean bottom are, and remain, the legacy of all human beings."
232. Lyndon B. Johnson, President's Remarks at the Commissioning of the new Research Ship, The "Oceanographer", 2 WEEKLY COMP. PRES. DOCS. 930, 931 (1966).
233. VIKARI, supra note 112, at 78. The U. K.-based Kennecott Consortium (KCON) and three U. S.-based consortia, including Ocean Management Incorporated (OMI), Ocean Minerals Company (OMCO), and Ocean Mining Associates (OMA), have engaged in preliminary deep seabed mining.
234. See FILLMORE C. F. EARNEY, MARINE MINERAL RESOURCES 58 (1990).
235. SHAW, supra note 15, at 454.
236. See Malcolm D. Evans, The Law of the Sea, in INTERNATIONAL LAW 623, 646 (Malcolm D. Evans ed., 2d ed. 2006).
237. See International Seabed Authority [ISA], Legal and Technical Comm'n, 14th Sess., May 26-June 6, 2008, Nauru Ocean Resources Inc. Application for Approval of a Plan of Work for Exploration, ISA Doc. ISBA/14/LTC/L.2 (Apr. 21, 2008), available at http://www.isa.org.jm/files/documents/EN/14Sess/LTCASBA- 14LTC-L2.pdf;
238. ISA, Legal and Technical Comm'n, 14th Sess., May 26-June 6, 2008, Tonga Offshore Mining Ltd. Application for Approval of a Plan of Work for Exploration, ISA Doc. ISBA/14/LTC/L.3 (Apr. 21, 2008) available at http://www.isa.org.jm/ files/documents/EN/14Sess/LTC/ISBA-14LTC-L3.pdf.
239. For a summary of the conservative opposition to UNCLOS in the U. S. Senate, see Doug Bandow, Faulty Repairs: The Law of the Sea Treaty is Still Unacceptable, CATO INSTITUTE FOREIGN POLICY BRIEFING NO. 32 (Sept. 12, 1994), http://www.cato.org/pub-display.php?pub-id=1557&full=1.
240. Even if the United States did ratify UNCLOS III, it is an open question whether implementing legislation would be required in order for the treaty to take domestic effect, a legal question on which the U. S. State Department Office of the Legal Adviser is working. This has opened up discussions of whether UNCLOS III, and indeed other treaties as well, should instead be implemented through Congressional-Executive Agreements. Passage of such agreements would only require a majority in both houses, versus a supermajority in the Senate. The line between treaties and executive agreements is blurry to say the least in the United States. But even if such an approach could pass legal muster, it would surely run across entrenched political opposition. This would come in the form of senators, particularly on the Foreign Relations Committee, who would not wish to see their treaty powers usurped. McDonald, supra note 20.
241. John Wilen, Oil Price Hits Another Record High, ASSOCIATED PRESS, Apr. 16, 2008, available at http://abcnews.go.com/Business/Economy/story?id= 4666874&page=1.
242. Rick Jervis, et al., Worth the Risk? Debate on Offshore Drilling Heats Up, USA TODAY, July 14, 2008, http://www.usatoday.com/money/industries/energy/ 2008-07-13-offshore-drilling-N.htm.
243. Recently President Obama proposed opening up more of the U. S. continental shelf to oil exploration and drilling. Barack Obama Eases Offshore Oil Drilling Ban, BBC NEWS (Mar. 31, 2010), http://news.bbc.co. Uk/l/hi/8596692.stm. But the late-April 2010 Deepwater Horizon accident has tempered political enthusiasm for offshore drilling, at least in the short-term. See Audra D. S. Burch, et al.
244. As Oil Blob Triples in Size, Florida Fears Nightmare, MIAMI HERALD, May 1, 2010, http://www.miammerald.corn/2010/05/01/v-mllstory/1608990/as-oil-blob- triples-rn-size-florida.hnnl.
245. Op-Ed., Marine Mammon Weakens U. S. Resistance to Sea Law, IRISH TIMES, July 21, 2008, at 12.
246. Newfoundland Cod Fishery, CBC NEWS ONLINE (May 9, 2004), http://www.cbc.ca/newsftackground/fisbing/cod.html.
247. BUCK, supra note 29, at 95.
248. BP in particular has come under harsh criticism for contracting with many leading scientists with specialized knowledge about the Gulf oil spill and including in the contract terms a three-year moratorium on publishing any fmdings from their investigations. Tovia Smith, By Hiring Gulf Scientists, BP May Be Buying Silence, KQED NEWS (July 30, 2010, 7:33 AM), http://www.kqed.org/ news/story jsp?id=31409&source=npr&category=science.
249. PENELOPE REVELLE AND CHARLES REVELLE, THE ENVIRONMENT: ISSUES AND CHOICES FOR SOCIETY 429 (1988).
250. The International Convention for the Prevention of Pollution from Ships (MARPOL) was first adopted in 1973 and amended in 1978. More than 85% of the world shipping fleet has ratified MARPOL. Many scholars agree though that MARPOL and the Dumping Convention have been incorporated into UNCLOS III. BUCK, supra note 29, at 97-98.
251. Laura Moss, The 13 Largest Oil Spills in History, MOTHER NATURE NETWORK (July 16, 2010, 11:00 AM), http://www.nuin. com/earth-matters/wildemess- resources/stories/the-13-largest-oilspills-in-history.
252. BASLAR, supra note 16, at 216 (arguing that the NIEO failed in large part because developing nations realized that it was not possible to create a new international order without the support of the developed nations).
253. Baslar argues that the CHM concept survived the 1994 Amendments for four reasons: First, no State claimed national jurisdiction over the seabed. BASLAR, supra note 16, at 214.
254. For example, the U. S. Deep Seabed Hard Mineral Resources Act of 1980 states that the aim of the Act is "to encourage the successful conclusion of a comprehensive Law of the Sea Treaty, which will give legal definition to the principle that the hard mineral resources of the deep seabed are the common heritage of mankind." U. S. Deep Seabed Hard Mineral Resources Act of 1980, Pub. L. No. 96-283, § 2 (b) (1), 94 Stat. 553, 554 (1980) [hereinafter U. S. Deep Seabed Act of 1980]. Second, the national acts were intended to only last until UNCLOS III entered into force. Third, most of the domestic legislation included a tax aimed to assist developing nations.
255. BASLAR, supra note 16, at 214.
256. In the U. S. context, the Act imposed a special tax on seabed miners of 3.75% of the processed value of the metals. U. S. Deep Seabed Act of 1980, supra note 172, § 402 (a). And fourth, much of this legislation explicitly endorsed the CHM concept, albeit in vague terms.
257. BASLAR, supra note 16, at 216. Yet Baslar also has stated that it is now "unlikely that the common heritage of mankind... will be a tool in the establishment of a just world order."
258. Id. at 220.
259. Some scholars argue that the refusal by States to accept the CHM does not defeat the applicability of the concept generally, since the current manifestation of the CHM is consistent with the original 1970 Declaration of Principles. See generally Franck, supra note 109. This view, however, would not characterize UNCLOS III, in which profits were intended vaguely for "all mankind" and were managed through a centralized global regulatory agency that was largely under the control of developing States. UNCLOS, supra note 6, arts. 156-85. The parties also foresaw that the Enterprise would regulate commodity prices due to its market power, particularly for cobalt, nickel, copper, and manganese.
260. Id. art. 151 (9). Transfer of technology was also required through the ISA, both under UNCLOS HI and the Moon Treaty, as a tool of wealth equalization.
261. Id. art. 144. In practice though, it became clear that the Enterprise would consume most of any gains through administrative expenses and the Compensation Fund for developing country land-based producers.
262. BASLAR, supra note 16, at 213;
263. see also Edward L. Miles, The Structure and Effects of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea, 31 INT'L. ORG. 159, 211 (1977). One study put the annual total benefit per capita of the CHM concept on the forty poorest nations at just $0.50 per capita.
264. R. R. CHURCHILL & A. V. LOWE, THE LAW OF THE SEA 171 (1983).
265. See Cavnar, supra note 6, at 403, 417.
266. The Future of Antarctica, Panel Discussion at the British Library (Apr. 7, 2010). Participants included: Robert Culshaw (Deputy Director British Antarctica Survey); Klaus Dodds (Professor of Geopolitics at Royal Holloway, University of London);
267. and Sara Wheeler (author).
268. BASLAR, supra note 16, at 223.
269. Elliot L. Richardson, The Politics of the Law of the Sea, 11 OCEAN DEV. & INT'L L. J. 9, 14 (1982).
270. BASLAR, supra note 16, at 224.
271. J. R. Stevenson, Spec. Rep. of the President, Statement to the Caracas Conference (July 11, 1974)
272. in U. S. DEP'T OF STATE, PUB. NO. 8794, LAW OF THE SEA: THIRD UNITED NATIONS CONFERENCE 12 (1974).
273. BASLAR, supra note 16, at 227.
274. Id. at 226.
275. BASLAR, supra note 16, at 226-27;
276. see also Mark W. Zacher & James G. McConnell, Down to the Sea with Stakes: The Evolving Law of the Sea and the Future of the Deep Seabed Regime, 21 OCEAN DEV. & INT'L L. J. 71, 79 (1990). In all, twenty-five States control seventy-six percent of the total EEZs, thirteen of which are developed States. Out of thirty-four million square miles covered by the EEZs, ten countries share thirteen million. BASLAR, supra note 16, at 226-27;
277. UNCLOS, supra note 6, art. 57. This process excludes most developing nations from the benefits of the seabed.
278. Friedmann, supra note 18, at 768.
279. Arvid Pardo, The Convention on the Law of the Sea: A Preliminary Appraisal, 20 SAN DIEGO L. REV. 489, 499 (1983).
280. Interview with Steve Narry, Legal Counsel, Dev. Concepts and Doctrine Ctr., U. K. Ministry of Defence, in Shrivenham, U. K. (Jan. 12, 2010).
281. Edward Wong, Chinese Military Seeks to Extend Its Naval Power, N. Y. TIMES, Apr. 24, 2010, at Al, available at http://www.nytimes.com/2010/04/24/ world/asia/24navy.html.
282. See UNCLOS, supra note 6, art. 234.
283. See, e.g., Arctic Waters Pollution Prevention Act, R. S. C. 1985, c. A-12 (Can.) [hereinafter AWPP].
284. BASLAR, supra note 16, at 229.
285. Other issues also remained unresolved. For example, developing nations with EEZs but insufficient technology to exploit the resources therein could franchise out their property rights in the seabed, like Equatorial African States have done with oil drilling. Narry, supra note 185. Furthermore, private military security companies might be needed to police such franchising operations, potentially driving the further growth of private armies like the now infamous Blackwater, recently renamed Xe Services LLC. Profile: Blackwater Worldwide, BBC NEWS (Aug. 20, 2009), http://news.bbc.co. Uk/l/hi/7000645.stm.
286. BASLAR, supra note 16, at 231.
287. UNCLOS, supra note 6, art. 62.
288. Nathanial Gronewold, A Peek Inside the U. N. 's Continental Shelf Commission, GREENWTRE, Sept. 14, 2009, http://www.eenews.net/Greenwire/print/ 2009/09/14/l.
289. UNCLOS, supra note 6, art. 76 (1).
290. Cavnar, supra note 6, at 396.
291. Crawford, supra note 14, at 277.
292. S. C. VASCIANNIE, LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES IN THE INTERNATIONAL LAW OF THE SEA 128 (1990).
293. Cavnar, supra note 6, at 389-90.
294. Id at 397-98 (noting that "according to article 76, a state's extended continental shelf hits its outer limit at any point where the thickness of the sedimentary rock is less than one percent of the distance between that point and the foot of the continental slope... The foot of the continental slope is the point of maximum change in the gradient of the slope's base. To mark these outer limits, states use either of the two formulas to measure a collection of outer points at intervals of sixty nautical miles or less, and then draw a straight line from point-to-point. This line is the official boundary-beyond it lies the deep seabed-and it can extend no further than 350 nautical miles from the territorial sea boundaries or '100 nautical miles from the 2500 meter isobath, which is a straight line connecting the depth of 2500 meters'... This is intended to allow wide-margin states to maximize their claims within the constraints of the outer limit requirements.").
295. Id at 400.
296. Gronewold, supra note 193.
297. The CHM concept is not explicitly applicable in the continental shelf, though under Article 82 (2) there is some development aid provisioned for the loss of potential common heritage resources. UNCLOS, supra note 6, art. 77;
298. cf. Convention on the Continental Shelf, supra note 14, arts. 1, 2 (1-2). No provision of UNCLOS III Part VI requires coastal States to share natural resources of the continental shelf within two hundred miles of shore.
299. UNCLOS, supra note 6, art. 77.
300. McDonald, supra note 20. The CLCS is not a U. N. body. It is constituted under the U. N., but paid for by States, though developing nations are often unable to pay for their share. Since administration is not centralized, quality also varies substantially across subcommittees within the CLCS. Additional funding for the CLCS will be difficult, both because the United States is not a member of UNCLOS, and due to the U. S.'s position on budgetary growth for the U. N.
301. Id.
302. See Submissions to CLCS, supra note 8.
303. McDonald, supra note 20.
304. Frances B. Michaelis, International Year of the Oceans-1998, Australia's Policies, Programs and Legislation (Austl. Parliamentary Library, Research Paper 6, 1998-1999), available at http://www.aph.gov. au/library/pubs/rp/1998-99/ 99rp06.htm.
305. This support is exemplified by the Deep Seabed Mining Act, which states that three conditions have to be met before the U. S. acquiesces to UNCLOS: (1) non-discriminatory access to mineral resources, (2) a legal definition to CHM, and (3) environmental protection. But now, with changing technological and political realities, these constraints appear likely to fall away.
306. See generally John A. Duff, The United States and the Law of the Sea Convention: Sliding Back from Accession and Ratification, 11 OCEAN & COASTAL L. J. 1, 1 (2005).
307. VIIKARI, supra note 112, at 78.
308. James Graff, Fight for the Top of the World, TIME, Sept. 19, 2007, http://ww.time.com/time/world/article/0, 8599, 1663445, 00.html.
309. Id.
310. See JOHN VOGLER, THE GLOBAL COMMONS: A REGIME ANALYSIS 71 (1995).
311. See Elinor Ostrom, A Polycentric Approach for Coping with Climate Change 40 (World Bank Policy Research Working Paper 5095, Oct. 2009) (noting that single policies adopted only at a global scale are unlikely to generate sufficient trust among citizens and firms so that collective action can take place in a comprehensive and transparent manner that will effectively reduce global warming).
312. Dodds, supra note 12. See generally T. KORVUROVA & E. J. MOLENAAR, INTERNATIONAL GOVERNANCE AND REGULATION OF THE MARINE ARCTIC: OVERVIEW AND GAP ANALYSIS 16 (2009).
313. McDonald, supra note 20.
314. The U. S. Congress enacted NEPA in order to require federal agencies to incorporate environmental concerns into the decision-making process. 42 U. S. C. § 4331 (a). The broad goal of NEPA is "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man. "
315. U. S. C. § 4321 (1988).
316. See also A WPP, supra note 188.
317. THE ARCTIC GOVERNANCE PROJECT, ARCTIC GOVERNANCE IN AN ERA OF TRANSFORMATIVE CHANGE: CRITICAL QUESTIONS, GOVERNANCE PRINCIPLES, WAYS FORWARD 4 (Apr. 14, 2010) (noting that the legal regime that created the 1920 Treaty of Spitsbergen, which is still in force, features an arrangement whereby all parties recognize Norway's sovereignty over the Svalbard Archipelago in return for assurance of demilitarization and equal rights to the archipelago's natural resources, as well as promoting scientific research and establishing an equitable administrative system).
318. See ARTHURH. WESTING, GLOBAL RESOURCES AND INTERNATIONAL CONFLICT 215 (1986);
319. NORTH ATLANTIC COAST GUARD FORUM, http://www.ccg-gcc.gc.ca/e0003559 (last visited Jan. 18, 2011);
320. CONFERENCE OF ARCTIC PARLIAMENTARIANS, http://www.arcticparl.org/ (last visited Jan. 18, 2011).
321. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, reprinted in 12 I. L. M. 1319 (1973);
322. Trond Bjorndal & Gordon Munro, The management of high seas fisheries and the implementation of the UN Fish Stocks Agreement of 1995, in THE INTERNATIONAL YEARBOOK OF ENVIRONMENTAL AND RESOURCES ECONOMICS 1 (Henk Folmer & Tom Tietenberg eds., 2004).
323. About Arctic Council, ARCTIC COUNCIL (Oct. 22, 2007), http://arctic-council.org/article/about (last visited Jan. 18, 2011).
324. THE ARCTIC GOVERNANCE PROJECT, supra note 216, at 13 (noting that other applicable legal systems in the Arctic include multilateral environmental and economic agreements, as well as administrative bodies, including many U. N. agencies and programs).
325. Interview with Paul Berkman, Head, Arctic Ocean Geopolitics Programme at the Scott Polar Research Institute and Research Professor at the Bren School of Environmental Science & Management at the University of California Santa Barbara, in Cambridge, U. K. (Apr. 27, 2010).
326. Berkman & Young, supra note 33, at 339;
327. see also M. M. Holland, CM. Bitz & B. Tremblay, Future Abrupt Reductions in the Summer Arctic Sea Ice, GEOPHYS. RES. LETT., Dec. 2006, at L23503;
328. and ARCTIC CLIMATE IMPACT ASSESSMENT, IMPACTS OF A WARMING ARCTIC: ARCTIC CLIMATE ASSESSMENT 10-13 (2004).
329. See, e.g., The Ilulissat Declaration from the Arctic Ocean Conference (Ilulissat, Greenland, May 28, 2008);
330. United States National Security Presidential Directive 66: Arctic Region Policy (Washington, D. C., Jan. 9, 2009);
331. Basics of the State Policy of the Russian Federation in the Arctic for the Period until 2020 and for a Further Perspective (Moscow; adopted Sept. 18, 2008, promulgated Mar. 30, 2009, published in Rossiyskaya Gazeta).
332. See generally European Parliament Resolution on Arctic Governance, EUROPEAN UNION, (Brussels, Oct. 9, 2008);
333. European Commission Communication on the European Union and the Arctic Region, EUROPEAN UNION, (Brussels, Nov. 20, 2008).
334. Berkman & Young, supra note 33, at 339.
335. Id. (arguing that successful science diplomacy requires "knowledge-sharing and the steady generation of scientific findings.").
336. For a general review of historic Arctic sector claims, see Susan J. Rolston and Ted. T. McDorman, Maritime Boundary Making in the Arctic Region, in OCEAN BOUNDARY MAKING: REGIONAL ISSUES AND DEVELOPMENTS 16-73 (Douglas M. Johnston & Phillip M. Saunders eds., 1988);
337. ORAN R. YOUNG, ARCTIC POLITICS 104-25 (1992).
338. See generally A. R. Clute, The Ownership of the North Pole, 5 CAN. BAR REV. 1, 19-26 (1927);
339. GUSTAV SMEDAL, ACQUISITION OF SOVEREIGNTY OVER POLAR AREAS (1931);
340. James Brown Scott, Arctic Exploration and International Law, 3 AM. J. INT'L L. 797, 797 (1909).
341. Lincoln P. Bloomfield, The Arctic: Last Unmanaged Frontier, 60 FOREIGN AFF. 87, 88 (1981);
342. Donald R. Rothwell, International Law and the Protection of the Arctic Environment, 44 INT'L & COMP. L. Q. 255, 280-85 (1995) (noting that, among other incidents, the 1989 Exxon Valdez oil spills highlighted the vulnerability of the Arctic to pollution).
343. Donald R. Rothwell, Arctic Ocean Seabed Rights: The Last Great Land Grab?, JURIST (Mar. 1, 2008), http://jurist.law.pitt.edu/forurny/2008/03/arctic- ocean-seabed-rights-last-great.pnp.
344. GÉRARD MARAL ET AL., SATELLITE COMMUNICATIONS SYSTEMS: SYSTEMS, TECHNIQUES AND TECHNOLOGY 1 (2009).
345. BUCK, supra note 29, at 100.
346. Id, at 101.
347. Narry, supra note 185.
348. Russia: Northern Fleet, NTI. ORG, http://www.nti.org/db/nisprofs/russia/ naval/nucflt/norflt/norflovr.htm (last updated Feb. 2010). The United States also published an Arctic assessment in 2009, in which it stated that the U. S. had "broad and fundamental national security interests in the Arctic region. " See National Security Presidential Directive 66 (NSPD-66)/Homeland Security Presidential Directive 25 (HSPD-22, 25), Jan. 9, 2009.
349. See Ebinger & Zambetakis, supra note 6, at 1217-18.
350. Berkman & Young, supra note 33, at 340.
351. Declaration on the Establishment of the Arctic Council, art 1., Sept. 19, 2006, 35 I. L. M. 1387.
352. See generally Declaration on Arctic Military Environmental Cooperation between the United States, Russian Federation, and Norway (Bergen, Norway, Sept. 26, 1996).
353. McDonald, supra note 20.
354. See Scott J. Shackelford, The Tragedy of the Common Heritage of Mankind, 28 STAN. ENVTL. L. J. 109, 134-37 (2009).
355. Graff, supra note 209.
356. Sam Fletcher, Crude oil price rebounds above $72/bbl, OIL & GAS J., Aug. 26, 2010, http://www.ogj.eom/index/article-display/0175813216/ articles/oil-gas-joumal/general-interest-2/economics-markets/2010/08/ market-watch-crude9.html.
357. See generally Donat Pharand, Freedom of the Seas in the Arctic Ocean, 19 UNIV. OF TORONTO L. J. 210, passim (1969) (noting that the impetus to explore deep-sea resources dates back at least to the 1969 Prudoe Bay Alaska oil strike).
358. Feliks M. Persits, Maps Showing Geology, Oil, and Gas Fields and Geologic Provinces of the Arctic, U. S. GEOLOGICAL SURVEY OPEN FILE REPORT 97-470-j (2003).
359. Graff, supra note 209.
360. Conor Sweeney, Scientist Says Tests Back Russia Arctic Claim, REUTERS, Aug. 24, 2007, available at http://www.planetark.org/dailynewsstory.cfm/newsid/ 43920/newsDate/24-Aug-2007/story.htm.
361. Narry, supra note 185.
362. DCDC, supra note 11, at 63.
363. Holly Rosenkrantz, Bush Urges Congress to Expand Oil Drilling After August Recess, BLOOMBERG NEWS (Aug. 2, 2008, 10:06 AM), http://www.bloomberg. com/apps/news?pid=20601103&sid=aiRH.rMQskL0. Already many members of Congress want increased offshore oil and gas drilling. For example, the U. S. Department of the Interior, Minerals Management Service (MMS), has opened areas of the Chukchi Sea to petroleum exploration. The MMS coordinates the leasing of offshore lands for oil and gas development. The Chukchi Sea lease sale contained approximately 29.3 million acres of land. 72 Fed. Reg. 32, 860 (June 14, 2007). Shell Gulf of Mexico was the high bidder on many of the blocks; its winning bids totaled $2.1 billion.
364. Yereth Rosen, Shell Bullish on Chukchi Oil and Gas Potential, REUTERS U. K., Apr. 4, 2008, available at http://uk.reuters.com/article/UK-SMALLCAPSRPT/ idUKN0443205820080405. Of the total acreage offered, bids were only received on 498 blocks (about 2.7 million acres). Two more lease sales are planned in the Chukchi Sea under the MMS Outer Continental Shelf Oil and Gas Leasing Program 2007-2012, as are five other sales in nearby seas. 70 Fed. Reg. 54, 406-1 (Sept. 15, 2005). Recently, the Obama Administration gave its approval to continue scientific studies and exploration of the Chukchi Sea through 2017.
365. Alisa Opar, Obama Breaks His Word, Pursues Offshore Drilling in Alaska's Chukchi Sea, AUDOBON MAGAZINE (March 31, 2010), http://magblog.audubon.org/ obama-breaks-his-word-pursues-offshore-drilling-alaska's-chukchi-sea. But even if all U. S. coastal areas were opened to drilling, the Department of Energy estimates they would barely impact oil prices in the long term.
366. DEP'T ENERGY, IMPACTS OF INCREASED ACCESS TO OIL AND NATURAL GAS RESOURCES IN THE LOWER 48 FEDERAL OUTER CONTINENTAL SHELF (2007), http://www.eia.doe.gov/oiaf/aeo/otheranalysis/ongr.html.
367. Interview with Sophie Lane, U. K. Ministry of Defence, Dev. Concepts and Doctrine Ctr., in Shrevport, U. K. (Jan. 12, 2010).
368. Graff, supra note 209. In addition to providing increased opportunities to exploit natural resources, continued Arctic thawing has resulted in the opening of a seasonally ice-free Northwest Passage between Asia and Europe. This happened for the first time in recorded history in 2007. The ice cap, which floats atop much of the Arctic Ocean, is now fifteen percent below average. NASA EARTH OBSERVATORY, Record Low for June Sea Ice (July 26, 2005), http://earthobservatory.nasa.gov/IOTD/view.php?id=5690;
369. Brian Handwerk, Arctic Melting Fast; May Swamp US Coasts by 2099, NAT'L GEOGRAPHIC NEWS (Nov. 9, 2004), http://news.nationalgeographic.eom/news/2004/l 1/1109-041109-polar-ice.html. A commercially viable Northwest Passage would cut more than five thousand miles off the trip from Asia to Europe than the alternative through the Panama Canal, intensifying shipping traffic through the
370. Narry, supra note 185. Moreover, the route will remain ice-free for only a few months per year, thereby limiting its commercial viability.
371. Id.
372. Sweeney, supra note 246.
373. UNCLOS, supra note 6, arts. 55-57. UNCLOS has now been ratified by 161 States. Chronological lists of ratifications of, accessions and successions to the Convention [UNCLOS], UNITED NATIONS, http://www.un.org/Depts/los/reference- files/chronological-lists-of-ratifications.htm (last updated Oct. 5, 2010).
374. Graff, supra note 209.
375. Five nations agree to allow UN to settle Arctic claims, PETROLEUM NEWS, May 29, 2008, http://www.petroleumnews.com/newsbulletin/520483138.html. For a general discussion about the benefits and drawbacks of multilateral action in the Arctic
376. see Rob Huebert, Multilateral versus Unilateral Actions: Balancing the Needs for International Governance in the New Arctic (Position paper for the Fifth NRF Open Assembly, Sept. 24, 2008), http://old.mf.is/Open%20Meetmgs/ Anchorage/Position%20Papers/Huebert-5thNRF-position-paper-s essionl%20(2).pdf (discussing benefits and drawbacks of multilateral action in the Arctic).
377. Berkman, supra note 221.
378. UNCLOS, supra note 6, art. 76, para.l (providing that "continental shelf of a coastal State comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. ").
379. Warne, supra note 86.
380. The first limit is found in UNCLOS Article 76, paragraph 4, which provides two formulas for establishing the "Outer Limit Line." The second limit to the breadth of the continental shelf appears in UNCLOS Article 76, paragraph 5 and relates to the maximum distance seaward that this outer limit line can lie. Norway has developed sophisticated software that it has given away to other coastal States allowing them to use mathematical ambiguities in Article 76 to extend their continental shelf claims.
381. Guzman, supra note 14.
382. The ridge runs "under the Pole from north of Canada's Ellesmere Island and Denmark's Greenland to the New Siberian Islands of Russia."
383. Graff, supra note 209.
384. UN Commission Could Decide on Russian Arctic Bid in 3 Years, RUSSIAN NEWS AND INFORMATION AGENCY, Aug. 31, 2007, http://en. rian. ru/russia/20070831/ 75928564.html;
385. Russia Guided by International Law in its Polar Shelf Probe, RUSSIAN NEWS AND INFORMATION AGENCY, Aug. 3, 2007, http://en. rian. ru/world/20070803/ 70295919.html.
386. DCDC, supra note 11, at 63.
387. Greenland Takes Step Toward Independence from Denmark, TELEGRAPH, June 21, 2009, http://www.telegraph.co.uk/news/worldnews/europe/greenland/5594140/ Greenland-takes-step-towardindependence-from-Denmark.html;
388. see also Shackelford, supra note 241, at 134.
389. Narry, supra note 185.
390. Shackelford, supra note 241, at 134.
391. See Sen. Richard Lugar, U. S. Leadership in the World and the Law of the Sea (2007) (on file with author).
392. Shackelford, supra note 241, at 134.
393. Graff, supra note 209.
394. See DONALD R. ROTHWELL, THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW 1 (1996).
395. This underscores the extent to which science is the currency of public diplomacy in the transnational commons. Examples of the main scientific reports that the Arctic Council has put out include: the 1997 State of the Arctic Environment Report, the 2004 Arctic Climate Impact Assessment, the 2004 Arctic Human Development Report, and the 2008 Arctic Oil and Gas Assessment.
396. Berkman & Young, supra note 33, at 340.
397. Berkman & Young, supra note 33, at 340 (stating that the negotiating committee produced the 2001 Stockholm Convention on Persistent Organic Pollutants, partly as a result of action by the Arctic Council).
398. Id.
399. ØYSTEIN JENSEN, FRIDTJOF NANSEN INST., THE IMO GUIDELINES FOR SHIPS OPERATING IN ARCTIC ICE-COVERED WATERS 17 (2007);
400. ERIK J. MOLENAAR & ROBERT CORELL, ARCTIC TRANSFORM, BACKGROUND PAPER: ARCTIC FISHERIES 18 (2009).
401. Ellen Hey et al., The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis, 8 INT'L J. MARINE & COASTAL L. 1, 1-2 (1993).
402. See Kathy S. Law & Andreas Stohl, Arctic Air Pollution: Origins and Impacts, 315 SCI. 1537, 1537-39 (2007).
403. See Ebinger & Zambetakis, supra note 6, at 1215.
404. Berkman & Young, supra note 33, at 340.
405. See generally CHRISTOPHER C. JOYNER, GOVERNING THE FROZEN COMMONS: THE ANTARCTIC REGIME AND ENVIRONMENTAL PROTECTION (1998).
406. THE ARCTIC GOVERNANCE PROJECT, supra note 216, at 18.
407. The potential quantity of oil and gas in the region remains uncertain, but a 1974 report for the U. S. Geological Survey estimated 2.5 billion barrels of oil and 7.8 trillion cubic feet of natural gas. N. A. WRIGHT & P. L. WILLIAMS, U. S. GEOLOGICAL SURV., CIRCULAR NO. 705, MINERAL RESOURCES OF ANTARCTICA 16 (1974), available at http://pubs.er.usgs.gov/djvu/CIR/circ-705. djvu.
408. Berkman, supra note 28, at 412-13. For example, the World Wildlife Fund (WWF) is calling for a new international accord to regulate commercial activity in the Arctic.
409. Randy Boswell, WWF Wants Arctic Ocean Global Accord, MONTREAL GAZETTE, Apr. 26, 2010, http://www.charitycharities.org/news.php?artid=460832.
410. Dodds, supra note 12;
411. Berkman & Young, supra note 33, at 340.
412. Crawford, supra note 14, at 278.
413. Id.
414. Guzman, supra note 14.
415. Reaction of States to the Submission made by Australia to the Commission on the Limits of the Continental Shelf, Communication by Germany, Note No. 88/2005, at 1 (Apr. 5, 2005), available at http://www.un.org/Depts/los/clcs-new/ submissions-files/aus04/clcs-03-2004-los-deu.pdf.
416. Reaction of States to the Submission made by Australia to the Commission on the Limits of the Continental Shelf, Communication by India, Note No. NY/PM/443/1/98, at 1 (July 5, 2005), available at http://www.un.org/Depts/los/ clcs-new/subrmissions-files/aus04/clcs-03-2004-los-md.pdf.
417. Reaction of States to the Submission made by Australia to the Commission on the Limits of the Continental Shelf, Communication by Japan, Note No. SC/05/039, at 1 (Jan. 19, 2005), available at http://www.un.org/Depts/los/clcs- new/submissions-files/aus04/clcs-03-2004-losJap.pdf.
418. Reaction of States to the Submission made by Australia to the Commission on the Limits of the Continental Shelf, Communication by Russia, Note No. 739/n, at 1 (Dec. 9, 2004), available at http://www.un.org/Depts/los/clcs-new/subrm- sions-files/aus04/clcs-03-2004-los-russiantext.pdf.
419. Reaction of States to the Submission made by Australia to the Commission on the Limits of the Continental Shelf, Communication by the Netherlands, Note No. NYV/2005/690, at 1 (Mar. 31, 2005), available at http://www.un.org/Depts/ los/clcs-new/submissions-files/aus04/clcs-03-2004-los-nl.pdf.
420. Reaction of States to the Submission made by Australia to the Commission on the Limits of the Continental Shelf, Communication by the United States of America, at 1 (Dec. 3, 2004), available at http://www.un.org/Depts/los/clcs-new/ submissions-files/aus04/clcs-03-2004-los-usatext.pdf.
421. Guzman, supra note 14;
422. cf. Antarctic Treaty Consultative Parties: Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting and the Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 301. L. M. 1455.
423. See David VanderZwaag et al., The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters, in THE LAW OF THE SEA AND POLAR MARITIME DELIMITATION AND JURISDICTION 225, 233-34 (Alex G. Oude Elferink & Donald R. Rothwell eds., 2001).
424. Id. at 237.
425. Although a long history exists for unilateral State action in the Arctic, multilateral cooperation to deal with international environmental issues also has precedent. See, e.g., Convention between the United States, Great Britain, Russia and Japan for the Preservation and Protection of Fur Seals, July 7, 1911, 37 Stat. 1542;
426. Treaty between the United States and Other Powers Concerning Spitsbergen, art. 1, Feb. 9, 1920, 43 Stat. 1892, 2 L. N. T. S. 7.
427. Cf Clive Archer, General Features of Political Development and Possibilities for Cooperation in the Arctic, 11 CURRENT RESEARCH ON PEACE AND VIOLENCE 137, 143-44 (1988);
428. Olav Schram Stokke, The Northern Environment: Is Cooperation Coming?, 512 ANNALS AM. ACAD. POL. & SOC. SCI. 58, 67 (1998).
429. Berkman and Young also suggest the development of: a mandatory polar code covering all forms of shipping, an Arctic-wide agreement designed to control marine pollution, a region-wide system of RFMOs, a stronger International Arctic Science Committee to build off the success of the International Polar year 2007-09, and a regulatory regime for tourism along the lines of the International Association of Antarctic Tour Operators. Berkman & Young, supra note 33, at 340.
430. For example, a clarifying ICJ continental shelf decision could offer a comprehensive solution for all concerned parties, while ISA fees could finance a dedicated Arctic fund. Warne, supra note 86 ("[C]oastal states are required to contribute a percentage of the revenue derived from the exploitation of mineral resources beyond 200 miles to the International Seabed Authority. However, no contributions are required during the first five years of exploitation and not from developing countries that are net importers of the mineral in question. ").
431. L. B. Crowder et al., Resolving Mismatches in U. S. Ocean Governance, 313 SCI. 617, 617 (2006) (noting that "[i]n the United States, at least 20 federal agencies implement over 140 federal ocean-related statutes", and arguing for ecosystem-based management).
432. Berkman & Young, supra note 33, at 340.
433. Id.
434. Id.
435. Berkman, supra note28, at 413.
436. See Evans, supra note 158, at 645.
437. McDonald, supra note 20.
438. Interview with Jonathan Pershing, Spec. Advisor on Climate Change, U. S. Dep't of State, in Wash., D. C. (Jan. 29, 2010) (arguing that the CHM concept "mostly focused on inter-generational equity, and a sense of responsibility from developing to developed nations, and in this way is tied into broader development goals").
439. BUCK, supra note 29, at 100.
440. Preliminary data suggests that much of Antarctica's continental shelf may extend beyond two hundred nautical miles from the baseline, and that some sub-Antarctic islands have shelves that extend into the Antarctic Treaty Area (ATA).
441. Crawford, supra note 14, at 278.
442. See Sujata Gupta, Oil Spill Dispersant Could Damage Coral Populations, NEW SCIENTIST (Aug. 3, 2010, 5:45 PM), http://www.newscientist.com/article/ dnl9260-oil-spill-dispersant-coulddamage-coral-populations.html.
443. Oil Spill, Foreign Help and the Jones Act, FACTCHECK. ORG (June 23, 2010), http://www.factcheck.org/2010/06/oil-spill-foreign-help-and-the-jones- act/.
444. P. H. Pearse, From Open Access to Private Property: Recent Innovations in Fishing Rights as Instruments of Fisheries Policy, 23 OCEAN DEV. & INT'L L. 71, 71 (1992). But it should also be noted that regulations based on communal management also face problems, like the classic tragedy of the commons due to overexploitation of a shared resource.
445. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1244-45 (1968).
446. See Bishnu Hari Pandit & Gopal B. Thapa, Poverty and Resource Degradation Under Different Common Forest Resource Management Systems in the Mountains of Nepal, 17 SOC'Y & NAT. RESOURCES 1, 1-2 (2004).
447. See Jared A. Favole & Neil King Jr., Obama Faults 'Cozy' Oil Setup, WALL ST. J., May 15, 2010, at A4.
448. See supra, Figure 4.
449. See Canada and the Spill, THESTAR. COM (May 30, 2010), http://www.thestar.eom/opinion/editorials/article/816188-canada-and-the-spill.
450. See e.g., Sunlen Miller, Obama Taps New MMS Head to Oversee Reorganization, ABC NEWS (June 15, 2010, 5:57 PM), http://blogs.abcnews.corn/ politicalpunch/2010/06/obama-taps-newmms-head-to-oversee-reorganization-.html.
451. Allott, supra note 6, at 17-18.
452. Berkman, supra note 221.
453. BASLAR, supra note 16, at 235.
454. See Ebinger & Zambetakis, supra note 6, at 1215.
455. BASLAR, supra note 16, at 234 (arguing that had the CHM concept been applied to the territorial seas as well, the U. N. never would have accepted it).
456. Cf. Peter Prows, Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It), 42 TEX. INT'L L. J. 241, 297 n. 370 (2007) (arguing that Selden's mare clausum and res nullius view of the oceans "would have been at odds with all of Part XI and also Article 87 (2), which requires that States exercise high seas freedoms 'with due regard' to other States' freedoms and Part XI").
457. Wame, supra note 86 (stating that according to existing international law, the future of the Arctic may turn on the two methods of measuring the outer edge of the continental shelf: (1) "The point at which the thickness of sedimentary rocks becomes less than 1% of the distance to the foot of the continental slope (sediment thickness formula) "; (2) "[o]r up to 60 nautical miles from the foot of the continental slope (distance formula), up to a limit of 350 nautical miles from the baseline or 100 nautical miles from the 2, 500m isobath. The coastal state has the right to use whatever combination of constraint lines and formula lines is most advantageous in extending the outer edge of its continental shelf.").
458. See Noelle Straub, No Production From Obama 's Offshore Drilling Proposal Until at Least 2014, MMS Says, GREENWIRE, Apr. 2, 2010, http://www.eenews.net/ Greenwire/print/2010/04/02/2.
459. See Boutros Boutros-Ghali, A Grotian Moment, 18 FORDHAM INT'L L. J. 1609, 1609 (1995).