Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law

by Robin Kundis Craig

November 13, 2018

This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog.

How much do presidents really matter to the United States' participation in international environmental law?

Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush's pursuit of Middle Eastern terrorists in the wake of 9/11, including wars in Iraq and Afghanistan, represents a far different engagement with the rest of the world regarding international terrorism than President Obama's reliance on drones and attempts to bring American troops back home. In turn, President Obama's engagement with the rest of the world on climate change, including committing the United States to the Paris Accord, represents a radically different path than the one President Trump has thus far chosen to walk with regard to the same issue. Indeed, President Trump's "America First" approach to international relations shows every sign of becoming one of the most presidentially driven idiosyncratic periods in the United States' relations with the rest of the world since at least the conclusion of World War II.

But how much does any of that matter to the United States' participation in international environmental law?

The issue, of course, is that the United States Constitution formulates treaty-making as a two-body problem: The president signs and the Senate advises and consents. Failure of the United States to participate can occur at either stage. For example, President Clinton signed but Congress refused to ratify the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (to which the United States remains, at least for now, a party). Indeed, as of late August 2018, according to the U.S. Department of State, presidents have sent 42 treaties to the U.S. Senate that still await the Senate's advice and consent to ratification.

One of those 42 treaties is the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). President Reagan refused to sign the treaty when it opened for signature while he was in office, but President Clinton signed it on July 29, 1994. It has been sitting with the Senate since October 7, 1994 — that is, through Presidents Clinton, Bush II, Obama, and, so far, Trump. Clearly, the identity of the Chief Executive has not mattered much to the United States' failure to ratify.

Perhaps perversely, however, the United States' non-ratification and the identity of the Chief Executive also don't seem to have mattered all that much to the treaty's operation — including in U.S. waters. Of the 193 United Nations member states, 168 (including the European Union) have ratified this "constitution for the ocean," which went into effect on November 16, 1994. The United States follows UNCLOS III's jurisdictional provisions on the grounds that they are customary international law. Indeed, after refusing to sign the treaty, President Reagan first proclaimed a 200-nautical-mile Exclusive Economic Zone for the United States in March 1983, then in December 1988 added a 12-nautical-mile territorial sea —both exactly as UNCLOS III allows. All subsequent presidents have accepted these proclamations. Finishing up, in September 1999, President Clinton proclaimed a contiguous zone for the United States out to 24 nautical miles — and, again, all subsequent presidents have accepted that declaration. In addition, the United States ratified the supplemental Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks in August 1996, and this treaty came into force on December 11, 2001.

The United States has perhaps been most out of step with the rest of the world with regard to rights in the seabed. In September 1945, more than a decade before the first Law of the Sea conventions opened for signature in 1958, President Harry Truman proclaimed the United States' assertion of control over the continental shelf, a post-World War II recognition of the importance of offshore oil and gas reserves. The United States' most prominent objection to ratifying UNCLOS III was its treatment of the deep seabed (denominated "The Area") and its minerals as "the common heritage of mankind." However, deep seabed mining is just now getting underway, and, so far, it is taking place only on the deeper parts of continental shelves controlled by coastal nations (gold and copper deposits off the coast of Papua New Guinea, and iron sands off the coast of New Zealand). As a result, the United States' objection might be regarded as 40 years premature.

Even with respect to the seabed, however, the United States is beginning to behave like the rest of the world. Specifically, the United States is mapping its extended continental shelf in the Arctic Ocean in conformance with UNCLOS III — even though our non-ratification of the treaty means that we cannot submit a claim to that extended shelf to the Commission on the Limits of the Continental Shelf. Moreover, U.S. companies like Lockheed Martin prefer the legal safety of UNCLOS III when pursuing deep seabed mining; Lockheed Martin formed a UK subsidiary, UK Seabed Resources, so that it could receive its mining licenses from the International Seabed Authority pursuant to the treaty. Such industry preferences and the United States' interest in the Arctic might finally induce the Senate to ratify the treaty.

Maybe. The larger point here, however, is that the United States' relationship to UNCLOS III has been more or less the same since President Reagan, despite the fact that he did not sign the treaty and President Clinton did. Part of the reason, no doubt, is that President Eisenhower signed, and the Senate under a new President Kennedy ratified, the four 1958 United Nations Conventions on the Law of the Sea, which set forth many of the same kinds of obligations and rights as UNCLOS III. Another part, no doubt, is that the new jurisdictional provisions in UNCLOS III, and many other of its provisions, work to the United States' advantage. But an important part of the reason is that Senate procedures and politics — not presidential inclination — have been an effective roadblock to ratification, underscoring the basic constitutional point that the United States' assent and strict adherence to international environmental law is only partially a matter of who the president is.

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Also from Robin Kundis Craig

Robin Kundis Craig is the James I. Farr Presidential Endowed Professor of Law at the University of Utah S.J. Quinney College of Law.

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