OCEAN LAW AND THE CONSTITUTION

Constitutional adjudication in the field of admiralty law has always taken account of rules and principles accepted as "customary law" in the jurisprudence of international law. Outside the admiralty field, however, the Supreme Court has seldom been inclined to engage in any systematic engrafting of substantive doctrines from international law into the fabric of American law. Hence, it is remarkable to find that in cases requiring the Court to rule on the physical boundaries of individual states of the Union—that is to say, in performing one of its most basic functions, as "umpire" of the federal system—the Court has relied on evolving international law as the basis for such important decisions.

The cases in question include United States v. California (1965), the Texas and Louisiana Boundary Cases of 1969 (United States v. Louisiana et al.), and United States v. Alaska (1997). In each of them, the Court decided disputes between the federal government and state governments concerning the outermost seaward boundaries of those states' jurisdiction. At issue was the ownership of submerged land, beyond the physical limits of the coastline; the economic stakes were high, because of the value of offshore oil deposits in the beds of the offshore waters. In each instance, the state sought to validate a claim as proprietor of the submerged lands, hoping to gain the advantage of substantial potential oil revenues that would otherwise go to the federal government.

Specifically at issue in all four cases was interpretation of two 1953 statutes, the Submerged Lands Act and the Outer Continental Shelf Lands Act, by which Congress had ceded to the coastal states title to submerged lands (together with their oil deposits and other resources) out to a limit of three miles beyond the coastline. Congress's intent, in these statutes, was to "correct" the decision of the Court in United States v. California (1947), in which the Court had ruled that the national government had "paramount rights" in all offshore waters and their resources, out to whatever limit the President and Congress declared to be the outer seaward boundary of the nation's jurisdiction. What remained at issue, once Congress had thus granted to the states title to submerged land out to three miles, was the question of exactly how to define "coastline" for purposes of measuring to the mandated offshore boundary.

In each of the four cases, the Court relied on an international agreement, the 1958 Convention on the Territorial Sea and the Contiguous Zone, which had been ratified by the United States in 1964, as providing "the best and most workable definitions available." Over Justice hugo l. black's objections in dissent that Congress had intended to leave this delicate and (in his view) purely domestic question in the hands of a federal executive agency, the Court's majority in the 1969 cases declared that Congress had deliberately left to the judiciary final authority in the matter of defining offshore boundaries.

With regard to eroded shorelines, dredged channels into the sea, and elevations that emerged only during low tide, among other questions regarding physical features of the coast and offshore waters, the Court relied for its definitions not only on language in the 1958 convention itself but also—most extraordinarily—upon the "legislative history" behind that agreement; specifically, the 1958 report of the International Law Commission. This commission had been charged by the United Nations to develop a draft for the convention, together with scholarly commentary on customary law and general principles applicable to the definition of coastlines. Thus, the Court relied on technical discussion in the commission's report and its draft convention text as determinative evidence of the meaning of otherwise ambiguous or perplexing language in the convention as to the coastline boundary definition. Deciding in favor of the federal government in all four cases, the Court also relied on the convention and general principles of international ocean law to reassert the authority of the national government, as ultimate sovereign responsible for foreign policy, to exercise discretion in selecting from among the options available to it under the terms of the convention.

In 1994, the codification of ocean law as a distinctive branch of international law advanced dramatically with the entering into force of the United Nations Convention on the Law of the Sea (UNCLOS), first opened for signature in 1982. This convention specifies duties and responsibilities of signatory states across the entire spectrum of ocean uses (fisheries, navigation, naval power, scientific research, environmental protection), and also establishes the legitimacy of a 200-mile "exclusive economic zone" offshore of coastal and island states.

president ronald reagan refused to sign the UNCLOS agreement, objecting to the convention's establishment of collective international management and revenue rights in high-seas ocean bed resources beyond the 200-mile limit; but he declared that the other terms of UNCLOS were already established as customary law and would be honored as such by the United States. Although President william j. clinton did sign UNCLOS in 1994, the Republican majority in the U.S. senate declined to debate it, or even to hold committee hearings, because of the intransigent opposition of some key senators to the convention's terms as a potential threat to American sovereignty in ocean affairs. Especially controversial was UNCLOS's establishment of a United Nations International Tribunal for theLaw of the Sea, with power to interpret the convention's terms and with jurisdiction in cases arising under the agreement. Hence, even after the convention was essentially amended by a new agreement in 1994, eliminating the collectivist terms that Reagan had found objectionable as to seabed resource exploitation, the United States remained in 1999 formally a nonparticipant standing outside the processes and framework of one of the most important and far-reaching innovations in international law in modern history.

Harry N. Scheiber
(2000)

Bibliography

Briscoe, John 1995 The Division of America's Offshore Zones as Between Nation and States. In Implications of Entry into Force of the Law of the Sea Convention for U.S. Ocean Governance. Newark, Del.: Ocean Governance Study Group and the University of Delaware.

Scheiber, Harry N. and Carr, Chris 1992 Constitutionalism and the Territorial Sea: An Historical Study. Territorial Sea Journal 2:67–90.