U.S. Maritime Claims and Establishment of Marine National Monuments in the Pacific Ocean

Home , Continental shelf, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Palmyra Atoll

Chapter 4 U.s. Maritime Claims and Establishment of Marine National Monuments in the Pacific Ocean A Preliminary Study of the Question Concerning Possible Encroachment of the Global Commons

Yann-huei Song

Introduction

By Presidential Proclamation No. 5030 made on 10 March 1983,1 the United States established an eez, the outer limit of which is a line drawn in such a manner that each point on it is 200 nautical miles (“nm”) from the baselines from which the breadth of the territorial sea is measured. In accordance with the Proclamation, the u.s. Department of State published Public Notice 2237 on 10 August 1995, setting forth the limits of the u.s. eez, which include Baker Island, Howland Island, Jarvis Island, Kingman Reef, Wake Island, Johnston Atoll, and Palmyra Atoll that are located in the Central and Western Pacific Ocean.2 In January 2009, President Bush issued Presidential Proclamation No. 8336 that established three Marine National Monuments in the Pacific Ocean, including the Pacific Remote Islands Marine National Monument (“primnm”).3 The primnm includes the waters and submerged and emer- gent lands of the Pacific remote islands to the lines of latitude and longi- tude, lying approximately 50 nm from the mean low water lines of Baker, Howland, Jarvis and Wake Islands, Kingman Reef, Johnston Atoll, and Palmyra Atoll.

1 Proclamation 5030 – Exclusive Economic Zone of the United States of America, 10 March 1983, 48 FR 10605, 3 CFR, 1983 Comp., p. 22, available at http://www.archives.gov/federal -register/codification/proclamations/05030.html. 2 Exclusive Economic Zone and Maritime Boundaries; Notice of Limits, Department of State, Public Notice 2237, dated August 10, David A. Colson, Deputy Assistant Secretary for Oceans, in Federal Register, Vol. 60, No. 163, 23 August 1995, 43825–43829. 3 Proclamation 8336 of January 6, 2009 Establishment of the Pacific Remote Islands Marine National Monument, Federal Register, Vol.74, No. 7, 12 January 2009.

In September 2014, President Obama issued Presidential Proclamation 9173, the “Pacific Remote Islands Marine National Monument Expansion” (“primnme”), which includes the waters and submerged lands of Jarvis Island, Wake Island, and Johnston Atoll, lying from the primnm boundary established by Proclamation 8336 to the seaward limit of the u.s. eez.4 The intent of the primnme was to provide expanded protection to objects of sci- entific interest, including seamounts, deep sea corals, sea turtles, seabirds, and other species. The action called for the prohibition on commercial fishing in the primnme and directed the Secretaries of the Interior and Commerce to ensure that recreational and non-commercial fishing continue to be man- aged as sustainable activities in the primnm and primnme. In March 2015, the u.s. National Marine Fisheries Service (“nmfs”), National Oceanic and Atmospheric Administration (“noaa”) under the Department of Commerce issued a final rule, establishing requirements for fishing in the primnme.5 This final rule implements fishery management measures required by Presidential Proclamation No. 9173 made on 25 September 2014. The cited u.s. maritime claims and actions taken to establish 200-nm eez s for the remote islands located in the Central and Western Pacific Ocean and the two marine national monuments raise a question concerning possible encroachment of the global commons, provided that if the islands included in the monuments are in fact rocks as referred to in Article 121, paragraph 3 of the United Nations Convention on the Law of the Sea (“unclos” or “the Convention”).6 The application of Article 121(3) of the Convention is related to the extent of the International Seabed Area as the common heritage of man- kind and is concerned about overall interests of the international community. If the islands in question indeed fall within disqualifying ambit of Article 121(3) of the Convention, the ocean areas 24 nm seaward from their baselines from which the breadth of the territorial sea is measured should be treated as high seas, because these Pacific remote islands can have territorial sea and contiguous zone, but cannot have eez or continental shelf. Thus, under Article 87 and Article 116, all States have the right for their nationals to engage in fishing on the areas 24 seaward from the baselines from which the breadth of the territorial sea of the u.s. Pacific remote islands are measured subject to their treaty obligations and the provisions contained in Section 2 (Conservation and

4 Proclamation 9173 of 25 September 2014, Pacific Remote Islands Marine National Monument Expansion, Federal Register, Vol. 79, No. 188, 29 September 2014, 58645–58653. 5 The Final Rule, effective on 24 April 2015, is available at Federal Register, Vol. 80, No. 57, 25 March 2015, Rules and Regulations, 15693–15695. 6 United Nations Convention on the Law of the Sea (unclos) of 10 December 1982 [in force: 16 November 1994], 1883 unts 397, reprinted in (1982) 21 ilm 1261.