54. b. Attached declaration of J. Ashley Roach
DECLARATION OF J. ASHLEY ROACH
1. My name is J. Ashley Roach. I am currently an attorney-adviser in the Office of the Assistant Legal Adviser for Oceans, International Environmental and Scientific Affairs, U.S. Department of State, where I have served since October 1988. I hold a Masters Degree in Public International Law and Comparative Law with highest honors from George Washington University Law School. I am also a retired Captain in the Judge Advocate General’s Corps of the United States Navy. I have written extensively on matters related to the law of the sea, including (with Robert W. Smith) the book “United States Responses to Excessive Maritime Claims”, second edition published by Martinus Nijhoff in 1996.
2. The Office of the Legal Adviser, among other duties, provides legal advice and opinions to the Department of State and other government agencies on the law of the sea, including the interpretation and application of relevant treaties and customary international law.
3. Among my responsibilities in the Office of Legal Adviser has been to provide legal advice on the United Nations Convention on the Law of the Sea, as well as interpretation of that Convention and international oceans law. I have assisted in the drafting of the official United States interpretations of the Convention.
4. I am familiar with the various arguments raised by the defendant in this case and have read the Defendant’s Motion to Dismiss for Lack of Subject Matter and In Rem Jurisdiction; the Memorandum of Points and Authorities in Support thereof; the undated Expert Report and Declaration dated October 26, 2007 of Professor Jon Van Dyke; the Declaration dated October 25, 2007 and Expert Report dated August 24, 2007 of Scott B. Edmonds; and the depositions of Professor Van Dyke taken on October 31, 2007 and Mr. Edmonds taken on November 1, 2007. I have also read the August 2007 report, the Expert Rebuttal Report dated September 24, 2007, and the deposition taken November 2, 2007 of Dr. Robert W. Smith.
5. Pursuant to the decision of President Reagan announced on July 9, 1982 (II Public Papers of the Presidents: Ronald Reagan, 1982 (1983), pages 911-912), the United States did not sign the United Nations Convention on the Law of the Sea (Law of the Sea Convention) during the period it was open for signature, i.e., from 10 December 1982 until 9 December 1984 (see article 305(2)). Although the Law of the Sea Convention (along with the 1994 Agreement Relating to the Implementation of Part XI of the Convention) was submitted to the United States Senate for its advice and consent on October 7, 1994 (Senate Treaty Document 103-39, http://lugar.senate.gov/sfrc/pdf/presidentialmessage.pdf ), the Senate has not yet given advice and consent, and the United States has not become a Party to the Convention. As such, the Convention is not a treaty for purposes of U.S. domestic law. Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, page 5, lines 5-7, and page 16, line 10, incorrectly state that the United States has signed the Convention.
6. As a threshold matter, it is my legal opinion that the Law of the Sea Convention is not invocable by the defendants in this case. With regard to the Law of the Sea Convention, the United States is not a Party. As such, the Convention is not a “treaty” under United States law and is therefore, by definition, not a self-executing treaty. Even if the United States were a Party to the Law of the Sea Convention, it would not be invocable by a defendant in a forfeiture case. As reflected in the December 19, 2007 report of the Senate Foreign Relations Committee, the Convention (with certain exceptions not applicable here) would not be self-executing and, in the view of both the Committee and the Executive Branch, the Convention would not “create private rights of action or other enforceable individual legal rights in U.S. courts.” Convention on the Law of the Sea, S. Exec. Rep. No. 110-9, at 18 and 23 (110th Cong. 1st Sess. 2007). This is the most recent and official Executive Branch interpretation of the Convention. (See also United Nations Convention on the Law of the Sea, S. Exec. Rep. No. 108-10, at 15 and 20 (108th Cong., 2nd Sess. 2004), http://lugar.senate.gov/sfrc/pdf/seareport.pdf.)
7. The Defendant and its experts assert that Howland and Baker Islands are “rocks” within the definition of article 121(3) of the Law of the Sea Convention (article 121(3)), and thus that the United States may not establish an Exclusive Economic Zone around them. It is my legal opinion that the Defendant and its experts are mistaken.
a. Article 121(3) provides: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” It is clear, based on my review of the materials in this case, that the Defendant and Professor Van Dyke think that if there is no present human habitation on an island, then it “cannot sustain human habitation” and is thus a rock under article 121(3). See, e.g. Van Dyke Deposition 71-74, 77-78, 84, 116-120. The Defendant and Professor Van Dyke take the view that even if there had been habitation on an island in the past, if there is no habitation on the island today, then it is necessarily a rock. Id. In my opinion this is not a correct interpretation of article 121(3) and is contrary to the plain language of article 121(3). Article 121(3) uses the formulation “cannot sustain human habitation,” not “do not support human habitation.” The question posed by article 121(3) is whether the feature at issue is habitable. Contrary to the Defendant’s view, there is no requirement that the feature actually be inhabited. A review of the history of Howland and Baker shows that both islands have been inhabited in the relatively recent past. Van Dyke Deposition 107-120 and Exhibits 8-15. Further, there is no evidence in the record that they will be uninhabited in the future. Accordingly, the Department of State does not view either island as a rock under article 121(3).
b. The Defendant and Professor Van Dyke rely heavily on what they assert is “state practice” showing that Howland and Baker are rocks under article 121(3). Professor Van Dyke incorrectly portrays the facts and the concept of “state practice”. State practice refers to the subsequent practice in the application of a treaty text which establishes the agreement of the parties regarding its application. It refers to the way a text is actually applied by the parties. If the practice is consistent and is common to, or accepted by, the parties, the subsequent practice is usually a good indication of what the parties understand the text to mean. Anthony Aust, Modern Treaty Law and Practice 194 (Cambridge University Press, 2000). Professor Van Dyke cites several cases involving disputes between countries as whether a particular feature is a rock under article 121(3). Van Dyke Declaration 15-19; Van Dyke Deposition 35-36, 51-54, citing Senkakus/Diaoyu Dao dispute; Okinotorishima dispute; Dokdo/Takeshima dispute, Spratly Islands dispute. The very fact that the proper characterization of these features is disputed completely undercuts Professor Van Dyke’s assertion that state practice shows that these features are “rocks” under article 121(3). It is entirely inappropriate to rely on disputed features as examples of state practice, for in each case there is a state taking exactly the opposite position. The one unambiguous example of state practice cited by Professor Van Dyke (Declaration 14-15, Deposition 29-34, 75-76), the UK’s determination that Rockall is a rock and not an island, if anything, supports the U.S. view that Howland and Baker are not rocks. Rockall is a tiny, sheer-walled uninhabitable feature, a fraction of the size of Howland and Baker. Van Dyke Deposition 184 and Exhibits 2, 5, 25; Smith Deposition 102, 104.
c. State practice supports the U.S. view that Howland and Baker are not rocks under article 121(3). There are many examples of relatively small, uninhabited features around or from which countries have established Exclusive Economic Zones. Of direct relevance to this case, Kiribati has claimed its EEZ measured in part from McKean Island, a feature quite similar to Baker Island. Edmonds Deposition 14-15 and Exhibits 1, 2 and 8; http://www.pacificislandtravel.com/Kiribati/about_destin/mckean.html. Other examples include France, which in the Pacific and Indian Oceans, has established EEZ’s around islands in French Polynesia, French Southern Ocean islands (Kerguelen Islands), Australia around Heard Island; islands of the Mozambique Channel, and Clipperton Island; Fiji has established an EEZ around Ceva-i-Ra (Thjeva-i-Ra); Mexico has established an EEZ around Clarion and Roca Portida islets in the Pacific; Venezuela established an EEZ around Aves Island. (Van Dyke Deposition 23, 39; Smith Deposition 100) The United States gave full effect to Aves Islands in the Maritime Boundary Treaty between the United States and Venezuela of March 28, 1978, 23 U.S.T. 3100; in doing so, the United States recognized Venezuela’s right to claim an EEZ from Aves Island. The United States has established an EEZ around Maro Reef in the Northwest Hawaiian Islands, Palmyra Atoll, Kingman Reef and around Howland and Baker. (60 Fed. Reg. 43825, 43828, 43829, Aug. 23, 1995; Department of Defense, Maritime Claims Reference Manual, page 664 and Table C1.T286, http://www.dtic.mil/whs/directives/corres/20051m_062305/United_States_America.doc; Van Dyke deposition 45) Professor Van Dyke admits in his deposition, pages 121-122, 126, that among Pacific Island nations there will be “winners and losers” under his interpretation of article 121(3), necessarily suggesting that they have established EEZ’s around uninhabited islands that he would consider “rocks.” The admission that several Pacific Island nations have established EEZ’s off of features that he would consider “rocks” undercuts his position that state practice supports his view.
d. Professor Van Dyke relies on maritime delimitation cases to support his view that Howland and Baker are rocks. (Declaration 19-20) None of these cases specifically addressed article 121(3). Rather, they were cases under article 74 of the Law of the Sea Convention, an entirely different body of law applying entirely different legal questions from those that have been raised in this case. Professor Van Dyke stated in his declaration, page 5, paragraph (d), that “the decisions made by both Nicaragua and Honduras that five small cays east of their coasts (Bobel Cay, Savanna Cay, Port Royal Cay, South Cay, and Edinburgh Cay) should generate only 12 nautical mile territorial seas, and should not generate EEZs” (emphasis added). The judgment of the International Court of Justice in this case, Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea, October 8, 2007, http://www.icj-cij.org/docket/files/120/14075.pdf?PHPSESSID=be185f20d250a4ace1f4068d9ad9963c, at paragraph 137 on page 40, states that these features “fall within the definition and regime of islands under Article 121” and “notes that the Parties do not claim for these islands any maritime areas beyond the territorial sea”. (This point is repeated in paragraph 262 on page 72 of the Court’s judgment.) However, in paragraph 303 on page 83 the Court observes that:
“As a 12-mile breadth of territorial sea has been accorded to these islands, it becomes apparent that the territorial sea attributed to the islands of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua) would lead to an overlap in the territorial sea of Nicaragua and Honduras in this area, both to the south and to the north of the 15th parallel.”
Where the territorial seas from these islands overlap, there can be no EEZ measured from these islands. Accordingly, it is incorrect to state that Nicaragua and Honduras decided that these islands “should not generate EEZs”.
e. Professor Van Dyke relies heavily on a separate opinion of Judge Budislav Vukas of the International Tribunal for the Law of the Sea. (The Volga Case (Russian Federation v. Australia), Case No. 11, Prompt Release, Judgment, Declaration of Judge Vukas, ITLOS Reports 2002; 42 International Legal Materials 178-181 (2003); http://www.itlos.org/start2_en.html (case no. 11).) (Van Dyke Declaration 5-6; Van Dyke Deposition 23-26) Professor Van Dyke did not mention that no other judge on the 21-judge Tribunal agreed with Judge Vukas’ view on the rock issue, which was not raised by Russia. The judgment of the Tribunal and the other three separate opinions each accept that Heard Island and the McDonald Islands generated an EEZ. In an earlier case before the Tribunal, Judge Vukas questioned whether the establishment of an EEZ off the shores of the uninhabitable and uninhabited Kerguelen Islands was in accordance with the Convention. The Tribunal’s judgment and the six separate opinions each did not question the validity of the EEZ around those islands. (The Monte Confurco Case (Seychelles v. France), Case No. 6, Prompt Release, Judgment, Declaration of Judge Vukas, http://www.itlos.org/start2_en.html (case no. 6).) Both of these cases involved prompt release of fishing vessels arrested for violation of the EEZ regulations of Australia and France, respectively. Most of the members of the Tribunal that heard both cases were, like Judge Vukas, government delegates to the Third UN Conference on the Law of the Sea.
f. The definition of a nation’s boundaries, including its EEZ, is a uniquely sovereign determination. This determination is not subject to challenge by a defendant in a forfeiture case. Only another sovereign may challenge such an establishment of an EEZ.
g. Not only has Kiribati has not challenged the establishment by the United States of its EEZ off of Baker and Howland Islands, but it has agreed in such establishment. Smith Expert Rebuttal Report page 3 paragraph 10. Kiribati has agreed that the vessel was not fishing in the Kiribati EEZ at the time alleged in the complaint (Van Dyke Deposition Exhibit 7; Attachment 1, the same telegram from the U.S. Embassy in Suva, prepared in the course of the Embassy’s diplomatic mission, to the Department of State, retrieved by the custodian of the telegram).
h. The Defendant and its experts assert that their interpretation of article 121(3) reflects customary international law. The United States has not said that their interpretation of article 121(3) is customary international law. It is a sovereign decision, not a decision of a defendant in a forfeiture case, as to whether a particular provision of the Law of the Sea Convention reflects customary international law. Whether article 121(3) is customary international law is beside the point, since the Defendant’s interpretation of article 121(3) is clearly not customary international law. It conflicts with the plain language of the Convention, the practice of other nations, and the Executive Branch’s declaration of its EEZ which was previously announced in the Federal Register (60 Fed. Reg. 43825, 43828, 43829, Aug. 23, 1995; reprinted in Department of Defense, Maritime Claims Reference Manual, page 664 and Table C1.T286, http://www.dtic.mil/whs/directives/corres/20051m_062305/United_States_America.doc.)
I hereby declare under penalty of perjury that the foregoing is true and correct.
Executed this 20th day of December 2007, Washington, D.C.
J. ASHLEY ROACH
Attachment as stated.