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435 Takehome Exam

International Law of the Sea

In addition to its essential role in shepherding the Paris Agreement on combatting climate change, the Obama administration was active in promoting decisions by the U.S. Congress and, through diplomatic negotiations, at U.N. agencies, the U.N. General Assembly, and other bodies that by international treaty have responsibilities for governing uses of the marine environment. These include the International Whaling Commission (IWC), the International Maritime Organization (IMO), and the Commission for the Conservation of Marine Living Resources (CCAMLR).

Promotion of UNCLOS accession

At a series of hearings before the [Senate Foreign Relations Committee] in May 2012, prominent members of President Obama's administration, including Secretary of State Hillary Clinton and Secretary of Defense Leon Panetta, testified in favor of U.S. ratification of UNCLOS. The U.S. is the only major industrialized nation not to be a party to this global agreement which provides the basis for world public order of the oceans. In 1994, UNCLOS was effectively amended by an U.N. agreement on the implementation of Part XI, the provisions setting forth the regulatory regime for [deep seabed mining]. This agreement, whose negotiations were led by the U.N. Secretary General, removed President Reagan's grounds for voting against UNCLOS when it was opened for signature in 1982.  With respect to implementation of the [high seas] provisions of UNCLOS, in June 2015, the U.S. delegation to the U.N. joined the unanimous vote in favor of a [General Assembly resolution] calling for negotiations of an international treaty to provide protection of [marine biodiversity] in areas beyond national jurisdiction of any nation, including the high seas.

Seabed Mining

During the Obama Administration an attempt in 2012 to ratify the Law of the Sea Treaty was put forward to the US Senate by Secretary of State Hillary Clinton. A successful ratification would change the process in which seabed mining licenses are issued for mining sites outside the US Exclusive Economic Zones (EEZ). Under the treaty, license applications would be sent to the International Seabed Authority (ISA) for evaluation opposed to the National Oceanic & Atmospheric Administration (NOAA) as it was under the Deep Seabed Hard Mineral Resources Act of 1980. However, the ratification was unable to successfully pass in the senate as Republican senators banded together to gain majority vote.

In 2012, a subsidiary of the Lockheed Martin Corporation requested an extension of their exploratory licenses from NOAA for two areas of the Clarion-Clipperton Zone, a stretch of Pacific seafloor rich in polymetallic nodules, so that it may be further investigated for potential deep seabed mining sites, which was then approved by NOAA. However, in May 2015, a lawsuit was filed against NOAA and US Secretary of Commerce Penny Pritzker by the Center for Biological Diversity (CBD) for approving the extensions. The CBD claimed that NOAA failed to comply with federal laws regarding license extension by approving the extension request without having acquired the Environmental Impact Statements (EIS) from Lockheed Martin necessary to legally approve the extension. The court ruled in favor of the CBD, immediately nullifying the licenses extensions. In 2017, Lockheed Martin would once again request for a license extension for the same two sections of the zone, with NOAA again approving them, but having received the necessary EIS.

A map overview for the Papahānaumokuākea Marine National Monument protected area (NOAA 2010)

A Map depicting the Northeast Canyons and Seamounts Marine National Monument boundaries (NOAA)

In September 2014, President Obama expanded the Pacific Remote Islands Monument, initially created by President George W. Bush, via the Antiquities Act of 1906. By doing this, the area for prospective seabed mining exploration in the Pacific Ocean was significantly reduced due to the new protections. Obama would repeat this process on a larger scale two years later with both the creation of the Northeast Canyons and Seamounts Marine National Monument, and the expansion of the Papahānaumokuākea Marine National Monument, further decreasing the possible mining areas in both the Pacific and Atlantic Oceans. Following the election of Donald J. Trump as president in 2017, attempts were made to rollback these protections by presidential action, while New England and Mid-Atlantic fishermen challenged Obama's use of the Antiquities Act to create the Atlantic marine national monument off Massachusetts. The federal courts, however, rejected the fishermen's argument that since the U.S. EEZ is subject only to sovereign rights and not national ownership under international law the Antiquities Act cannot be used to protect marine ecosystems from extractive activity.

In March 2018, research was published that concluded that deep seabed mining cannot be attained without significant net biodiversity loss, even with the strictest of measurements being in place. Eight months later, the Trump Administration released an ocean science and technology report summarizing the goals for ocean research over the next decade, including goals for deep seabed mining research. A year later, the Trump administration released a fact sheet and an presidential memorandum placing a focus on ocean exploration and seafloor mapping of the EEZ off the Alaskan coasts in order to examine the bathymetry for resources within the EEZ, including critical minerals for future potential seabed mining operations.

Freedom of Navigation in the South China Sea

In marine-related foreign relations, President Obama authorized additional operations, known as FONOPs, under the U.S. Navy's [Freedom of Navigation Program]. The U.S. Navy carries out FONOPs in maritime spaces that are subject to claims of jurisdiction or sovereign rights by coastal States which the U.S. believes are excessive and infringe upon the freedom of navigation and overflight. These excessive claims have often been based on the application of [straight baselines] that depart appreciably from the general direction of the claiming nation's coastline or that do not enclose locally-used waters along a deeply indented or island-studded coastline. FONOPs during the Obama Administration focused on the semi-enclosed [South China Sea] and China's broad but ambiguous maritime claims asserted through a series of nine, dashed lines. In the decades-long [Spratly Islands dispute], the U.S. has avoided taking a position on the [territorial disputes in the South China Sea]. Following China's 2009 submission of a note verbale to the [U.N. Commission on the Limits of the Continental Shelf] opposing the joint submission of extended continental shelf claims filed by Malaysia and Vietnam and claiming "indisputable sovereignty" based upon historic rights within a [Nine-dashed line], the U.S. State Department published an analysis of this assertion in its [Limits in the Sea] series. The report concluded that China's claims were contrary to established principles of international law.

In 2016, the Permanent Court of Arbitration released the long-awaited decision of the special arbitral tribunal established under UNCLOS's Annex VII upon the application of the Philippines.

Territorial claims in the South China Sea - notably the overlap between countries claim borders

This case, [Philippines v. China], revolved around the actions by China to interfere with fishing activities in its EEZ in the area of submerged reefs and coral atolls that China built up into military bases through extensive land reclamation activities. The U.S. was not a party to the [South China Sea Arbitration], but the dispute concerned Chinese claims the U.S. has opposed through FONOPs by warships and overflight and through diplomatic protests. The Arbitral Tribunal found that the maritime features that China had reclaimed were not naturally formed islands entitled to an EEZ and continental shelf but had been "rocks" as that term is used in UNCLOS Article 121, paragraph 3, known as the [regime of islands]. In a much discussed decision, the tribunal concluded that there was no evidence that any of the features had supported a stable human community "without external additions."

Global Moratorium on Commercial Whaling

Number of whales caught per country from 2010 - 2014 with data from IWC catch summary

The Obama administration continued the diplomatic project of the George W. Bush administration to seek a compromise on the issue of commercial whaling and Japan's whaling in the Southern Ocean Sanctuary adopted by the International Whaling Commission (IWC). The goal was to keep Japan from renouncing the International Convention on the Regulation of Whaling (ICRW) it had been a party to for many decades. Japan's efforts at the meetings of the IWC had failed, sometimes only narrowly, to remove the zero quotas from the ICRW's Schedule and to apply revised management procedures adopted by the IWC to set sustainable use quotas for Antarctic minke whale populations. US proposals for a compromise, for a 'future role of the IWC' in cetacean conservation, were debated at IWC meetings in 2010 and 2012. Following the 2014 decision by the International Court of Justice (ICJ) in the case of Whaling in the Antarctic, Australia v. Japan: New Zealand Intervening [Japan whaling case] that Japan's program of granting special permits for lethal research, known as JARPA II, pursuant to article VIII of the ICRW, was not whaling for purposes of scientific research, the U.S. opposed efforts by Japan at the sixty-fifth meeting of the IWC in 2014 to limit the implications of the ICJ decision on the consideration of future research programs conducted by Japan. Late in 2018, Japan announced its withdrawal from the IWC and plan to recommence commercial whaling in Japan's EEZ and territorial waters, raising questions regarding the implications of [UNCLOS Article 65] on whaling in the EEZ. Articles 62 of UNCLOS provides clarity in the requirement for Japan to, "ensure that living resources are not endangered by over-exploitation using the best scientific evidence available to a coastal state."

It is not known if members of the U.S. Congress considered resolutions in 2019 and 2020 calling on the then-present administration to invoke provisions of the Pelly Amendment. This U.S. law allows the levying of trade sanctions in the form of import bans against nations that undermine international conservation agreements. In the past, violations of agreements that have triggered certification and possible trade sanctions have included violations of the ICRW, which establishes the IWC and its schedule of quotas and regulations, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which bans trade between parties in whale meat or other products. During the Obama administration, Iceland started a new program of commercial whaling with a view towards sales to Japan, triggering calls from conservation groups for the U.S. to levy trade sanctions under the Pelly Amendment. In 2011, in a message to Congress, President Obama concluded that further diplomatic efforts would be undertaken to end [Icelandic whaling] before trade sanctions would be imposed against that Atlantic nation.

Marine Protected Areas in the EEZ

The Obama administration set an important international precedent for ocean conservation and protection of sensitive marine environments in the expansion of the no-take MPAs in the U.S. EEZs around the Northwestern Hawaiian Islands archipelago and Line Islands in the Pacific Ocean. The U.S. was then involved indirectly in the U.K.'s establishment of a vast marine protected area in the EEZ around the Chagos Islands archipelago in the Indian Ocean. The U.K.'s protected area excluded from the MPA the waters around Diego Garcia, an atoll that the U.S. leases from the U.K. government for use as a naval base. An UNCLOS tribunal ruled in Mauritius v. U.K. that the protected area was wrongly established in light of Britain's commitment to return the Chagos islands and their surrounding waters to Mauritius once they were no longer needed. Consultations with Mauritius prior to the protected area's creation were perfunctory and in violation of UNCLOS duties to consult and behave in good faith with respect to the rights of other coastal states.

The U.S. actively supported the creation of MPAs in the waters surrounding Antarctica at meetings of CCAMLR, the commission created by agreement to manage and protect the living resources of the Southern Ocean. Pressures from increased quotas in krill fisheries in the Southern Ocean have expanded in recent years, as have fisheries for Antarctic toothfish.