The Not So Infinite Sea

Stephen DeAngelis

August 17, 2009

William Shakespeare once penned: “My bounty is as boundless as the sea, my love as deep. The more I give thee, the more I have, For both are infinite.” We are fast learning that Shakespeare might have been right about love but he was wrong about the ocean. Neither the sea nor its bounty is infinite. Since a portion of my business involves port and harbor security and international supply chains, I pay attention to events in the maritime realm as well as events on land. For example, in another post that drew from Shakespeare entitled A Rose by Any Other Name Might Smell as Sweet, but Would It Sell? Consider the Slimehead, I discussed the issue of collapsing fish stocks in the world’s oceans. Although the oceans are vast, the closer one gets to shore the more crowded they become [“Finding Space for All in Our Crowded Seas,” by Juliet Eilperin, Washington Post, 4 May 2009]. Tensions can rise when too many people are trying to conduct too many activities in too little space. Eilperin writes:

“The ocean is getting crowded: Fishermen are competing with offshore wind projects, oil rigs along with sand miners, recreational boaters, liquefied gas tankers and fish farmers. So a growing number of groups — including policymakers, academics, activists and industry officials — now say it’s time to divvy up space in the sea. … To resolve these conflicts, a handful of states — including Massachusetts, California and Rhode Island — have begun essentially zoning the ocean, drawing up rules and procedures to determine which activities can take place and where. The federal government is considering adopting a similar approach, though any coherent effort would involve sorting out the role of 20 agencies that administer roughly 140 ocean-related laws.”

The problem, Eilperin reports, is that stovepiped agencies have concentrated on various sectors of maritime activity without stepping back and taking a holistic view of the challenges. Few, if any, challenges can be addressed adequately unless one takes a systemic view of the issues involved.

“‘It’s really an idea whose time has come, and it’s one of my top priorities,’ said Jane Lubchenco, who chairs the National Oceanic and Atmospheric Administration. ‘By focusing on different sectors, nobody is paying attention to the whole — in particular, the health of the system.’ But conducting what experts call “marine spatial planning” presents scientific and political challenges, since so little of the ocean has been mapped in detail, and so many interest groups want to use it. The federal government has mapped only 20 percent of the ‘exclusive economic zone’ that stretches from the U.S. coast out 200 nautical miles, and that’s just its geophysical bottom, not the habitats and species that exist at varying levels.”

Although the U.S. is just beginning to consider how to divvy up maritime space, Eilperin observes that “Europeans and Australians have done this for years.” Years of experience, however, hasn’t made wrestling with underlying issues any easier.

“Even though they have a head start, policymakers overseas are struggling with many of the same questions Americans are contemplating, including how to reconcile new and traditional ocean uses, and how climate change will affect where marine species live. With the exception of Norway, few nations have been willing to subject fisheries to the same management regime as such activities as renewable energy and gravel mining.”

As noted in my post about fisheries mentioned above, the fishing industry has been and remains incredibly short-sighted about being regulated for the common good. Eilperin notes, for example, that “Massachusetts fishermen held up passage of the state’s Ocean Act until they were reassured they would be exempt.” These are the same fishermen who helped overfish the Atlantic cod in the Georges Bank off of New England to the point that the cod population there is now only 12 percent of healthy levels. The point is that each sector of the maritime economy wants to protect its niche and is willing to put up a fight to do so. The conflicts are especially keen in areas where there are a lot of borders (either state or national) in a relatively confined area.

The difficulties U.S. states are having trying to figure out how to regulate the waters off their coasts is only a microcosm of the challenges faced on the world stage. In addition to territorial waters (normally considered waters out to 12 nautical miles) and Exclusive Economic Zones (which extend out to 200 nautical miles), some countries “have now made their bids for vast new areas of continental shelf” [“Suddenly, a wider world below the waterline,” The Economist, 16 May 2009 print issue]. Claims for extended continental shelf exclusivity derive from the 1982 United Nations Convention on the Law of the Sea.

“These gave all countries that had ratified the treaty before May 13th 1999 ten years in which to claim any extension of their continental shelf beyond the normal 200 nautical miles (370km), so long as that extension was no more than 100 miles from the point at which the sea reached a depth of 2.5km, and no more than 350 miles from land. Any other country wishing to make a claim has ten years from the date on which it ratified the treaty. It must then, like all the states that have now made their claims, submit copious scientific evidence to show that the seabed in question is indeed continental shelf.”

The attached map, which accompanied The Economist‘s article, shows the extent of these new claims.

Continental shelf claims

The reason that countries have laid claims to new territory, according to the article, is that “you never know what may come in handy.” Countries hope that the “seafloor that may one day yield huge riches.”

“If it passes all the tests, it can exploit the minerals on or under the seabed in this margin, so long as any revenue is shared with poorer and landlocked states. No new rights are given over fish or other creatures in the water column, but living creatures on or below the seafloor that are immobile ‘at the harvestable stage’ are treated like minerals. Harvesting here is not entirely fanciful. Pharmaceutical companies are already mincing up marine creatures known as sea cucumbers that may yet provide drugs for treating cancer. Sea cucumbers can move, but other useful plants or animals may be stuck in the mud. More beguiling perhaps are metal deposits and energy reserves. These include not just petroleum but also methane hydrates, white, sorbet-like compounds that exist in profusion under the sea, perhaps containing more energy in total than all known deposits of fossil fuels. They can often be found on the slopes of the continental shelf, though as yet they are impossibly awkward to extract. In the long run, however, they may prove valuable to countries like Japan and India with few energy sources on land. For many countries, though, the first booty from any newly acquired seabed will be either oil or gas, both of which can now be extracted fairly easily from deep water.”

There are already a number of areas that have been claimed by more than one country and it will be the task of the Commission on the Limits of the Continental Shelf, the body that considers the claims, to help sort them out.

“The commission will encourage states to settle squabbles by negotiation. If they fail, they can go to the International Court of Justice in The Hague, or to a special tribunal in Hamburg. But too much should not be made of the disputation. The most remarkable feature of the seabed scramble is that it gives the potential of huge economic gains to some of the world’s smallest and poorest countries—coastal states in Africa, island nations in the Pacific, poor places like Barbados, Suriname and Yemen, none of them usually seen as sophisticated maritime powers. If they are now lucky enough to gain new rights over oil or minerals, they may soon be able to exploit them. Neptune should be smiling.”

Noticeably absent from this rush to claim new territory is the United States, which, unlike 156 other countries, has failed to ratify the Law of the Sea Convention [“An awkward absence,” The Economist, 16 May 2009 print edition]. The article notes that America still has time to make its claims; but it first must ratify the convention.

“The Obama administration, like its two most recent predecessors, wants to do, as probably does most of the Senate, which must provide its advice and consent. A determined minority, however, wants to block it, and finding the time for the necessary procedure may prove difficult. America’s original objections to the treaty related to the requirement that its companies should share technical information with poor countries. The treaty was changed to meet those complaints. Now the objectors say it would lead to a loss of sovereignty. In fact it would do the opposite, since it would allow America to claim sovereign rights over both the exclusive economic zone that extends 200 nautical miles (370km) from its shores and also its share of the continental shelf beyond that, so long as certain geophysical criteria were satisfied. The treaty does other useful things. It provides the right of passage by sea for all countries’ armed forces, and for almost all shipping through other states’ territorial waters if the passage is innocent. An absolute right of passage is given in international straits and certain archipelagoes, such as Indonesia. Such provisions can only benefit American national security.”

The Economist argues that America needs the Convention and that the world needs America’s participation. It believes that America’s interests are better protected from the inside and that the world’s most powerful nation is needed to help ensure the future of the global maritime commons. It concludes:

“The sea is badly in need of better management. It is overfished, chiefly, it is true, in coastal waters, but also in the great expanses that belong to no state. The sea is increasingly used as a rubbish bin, filled with poisons, plastics and other pollutants. Parts of it are infested with pirates. All of it is growing alarmingly acidic, as the carbon dioxide spewed out by modern activities finds its way into the briny. And much of the CO2 that causes this problem derives from oil and gas made less scarce by the reserves now recoverable from below it. Nowhere is this last paradox more apparent than in the Arctic, where global warming means melting ice, which in turn means easier access to huge quantities of petroleum, most of it offshore. At the same time the once-icy Arctic may be opening up to shipping through the North West Passage, bringing the possibility of collisions, oil spills and other environmental horrors in a particularly vulnerable part of the world. For the people—and animals—who live in the polar region, even the law-of-the-sea treaty, fashioned in an era unconcerned about global warming, may provide inadequate safeguards. The treaty is certainly not going to solve all the troubles afflicting the oceans, nor settle all the world’s maritime disputes. But it can help. To be effective, though, it needs America.”

Accompanying The Economist‘s articles was a special report on the sea that contained a number of more detailed articles on the state of the world’s oceans. They are worth a read. The importance of the world’s oceans is not going to diminish; rather, it is going to increase. With that increased importance will come either increased tension or increased cooperation. The Law of the Sea provides a good starting point for cooperation.