Access to our backyard reserves: a final resolution of the western Gulf of Mexico's maritime boundaries.

• Author: Welsh, Dabney

1. INTRODUCTION

   When we turn to foreign ]ands to supply our energy needs, then I can't help but feeling that somewhere along the way we have surrendered something of our freedom.(1) As the earth and humanity enter into a new millennium, many important questions arise concerning the continued support of the world's ever-growing population. New technology has been developed to help support and maintain our human race, although certain legal and internationally significant issues may impede its use. More specifically, one of the most pointed issues affecting the earth in this new millennium is the exploration, production, and conservation of the earth's natural resources and energy--a process necessary to sustain and provide for our population. Petroleum production, which helps produce much of the world's energy, is essential.(2) Without access to crucial mineral exploration and production, the world's economy and population are sure to face a major impediment.

   Not surprisingly, the Gulf of Mexico, which encompasses approximately 3.9 million square kilometers,(3) has been described as "one of the foremost petroleum provinces in the world."(4) Additionally, drilling in the Gulf of Mexico accounts for approximately 90% of U.S. offshore oil and gas production.(5) Therefore, it is easy to understand the economic importance of access to the Gulf of Mexico's mineral-rich reserves. Fortunately, the oil and gas industries of both the United States and Mexico are now able to gain access to the petroleum-rich reserves in the Western Gulf of Mexico, thanks to the recent ratification of the Treaty with Mexico on the Delimitation of the Continental Shelf ("TMDCS").(6)

   The TMDCS, an offshoot of the Treaty on Maritime Boundaries(7) ("TMB"), was ratified by both the United States and Mexico in an attempt to set each country's maritime jurisdictional boundaries in the Western Gulf of Mexico.(8) The TMB, the initial treaty dealing with the delimitation of the Gulf of Mexico's maritime boundaries, extended the maritime boundaries of each country as much as 200 nautical miles into the Gulf of Mexico.(9) The boundary lines extending off of each country's shorelines did not meet leaving approximately 4.5 million acres of unaddressed submarine area in the Gulf not subject to the jurisdictional rights of either the United States or Mexico.(10) Specifically, the TMB created both an Eastern and Western Gap,(11) two separate areas of unclaimed territory. Herein lied the issue that most directly affected the petroleum production of both the United States and Mexico--the division of the unaddressed submarine land in the Western Gap (the Eastern Gap being tied up in dispute with Cuba).(12)

   The relevant area under consideration, located in the Gulfs Western Shelf and frequently referred to as the `Doughnut Hole' or `Western Gap,' contains what geologists believe could be the world's fourth largest oilfield.(13) Fortunately, fruitful negotiations between the United States and Mexico led to the recent signing of the TMDCS, thus giving both nations access to the Western Gap."(14)

   The two countries, however, had to first overcome obstacles associated with the TMB in order to successfully ratify the TMDCS. Particularly, there were problems rooted in the premise that unclaimed submarine land, such as the Western Gap area, was subject to the international instrument known as the 1982 United Nations Convention on the Law of the Sea ("UNCLOS").(15) Under the UNCLOS, this area may have been considered as falling under the authority and exclusive jurisdiction of the International Sea-Bed Authority, instead of under the jurisdiction of individual countries.(16) The problematic nature of the delimitation negotiations stemmed from the fact that United States and Mexico interpreted the reach of the UNCLOS instrument differently with respect to the legal ability of an individual country to explore and mine in the Western Gap or `Doughnut Hole.'(17)

   The purpose of this Comment is to outline the development of the TMDCS and to explain its legal and international relevance. Part II will introduce the history and ratification procedures of the background instrument of the TMDCS--the TMB. Second, it will explain the significance of the previously unclaimed Western Shelf, highlighting its value to many worldwide industries such as those of oil and gas exploration and production.

   Part III of this Comment will discuss the relevance of the UNCLOS, and explain how the application of the UNCLOS affected the delimitation negotiations of the maritime boundaries in the Gulf of Mexico. It will also distinguish between the United States' and Mexico's differing interpretations on the application of the UNCLOS. Finally, Part III will explain the manner in which the UNCLOS issue was resolved.

   Part IV will explain why the boundary lines were delimited as they were, and the method by which they will be implemented. Emphasis will be put on the use of the equidistance principle of demarcation. Additionally, Part IV will concentrate on other U.S. maritime boundary treaties as precedent and the methods used in implementing them.

   Part V of this Comment will discuss the post-TMB delimitation negotiations of the Western Gap, leading up to the recent signing and ratification of the TMDCS. This discussion will examine Mexico's primary concerns over the matter and its attempt to maintain its national sovereignty. Particular attention will also be directed towards an anti-dumping petition against Mexico by Save Domestic Oil, a private U.S.-based oil and gas organization, as well as Mexico's decision to retain its gas tariff against the United States in retaliation to the antidumping petition. Part V will further discuss ten suggestions that were proposed for the delimitation of the Western Gap and their applicability in future maritime negotiations. Lastly, it will show how the United States and Mexico finally came to an agreement that led to the current TMDCS.

   Part VI will outline the provisions and articles contained in the finalized TMDCS. This discussion will emphasize the manner in which the TMDCS directly addresses Mexico's main concern--that of potential transboundary hydrocarbon reserves. Particular attention will be paid to the procedures each party to the TMDCS will follow in the event that transboundary reserves in the Gulf of Mexico are discovered.

   Part VII of this Comment will discuss how the United States and the Minerals Management Service plan to use their newly-acquired submarine land to the world's benefit. Special emphasis will be put on the upcoming leases that the Minerals Management Service plans to implement.

   This Comment will conclude by illustrating the importance of the recent delimitation of these maritime boundaries, and explaining how the delimitation will help the world's economy, as technological advances have now made it possible to gain access to potentially large mineral reserves in the Western Gulf of Mexico.

2. HISTORY OF THE TREATY ON MARITIME BOUNDARIES

   1. Proposal

      With the signing of the Treaty of Guadalupe-Hidalgo, following the U.S.-Mexican War in 1848, boundary negotiations initially commenced between the United States and Mexico.(18) The Treaty of Guadalupe-Hidalgo demarcated the land boundaries between the two countries, giving the United States possession of the land from Texas to California.(19) Historically, negotiations of land boundary issues between the United States and Mexico have been sensitive and strained, foreshadowing the negotiations of the maritime boundary areas between these two countries.(20)

      It was not until the 1970s, over 120 years after the Treaty of Guadalupe-Hidalgo was passed, that both the United States and Mexico began legislative attempts to establish maritime jurisdictional boundaries in the Gulf of Mexico.(21) These negotiations eventually led to the TMB, as it was known before the TMDCS was signed and ratified.(22) During the Carter administration, "[t]he United States claim[ed] a territorial sea of 3 nautical miles in breadth, ... a fishery conservation zone of 200 nautical miles in breadth, and sovereign rights for the purpose of exploring and exploiting the resources of the continental shelf."(23) On the other hand, Mexico was one of the first countries to establish a 200 nautical mile exclusive economic zone ("EEZ") demarcating its territorial jurisdiction in 1976.(24) This was achieved by amending Article 27 of the Mexican Constitution during President Echeverria's administration.(25) Text inserted after paragraph seven provides:

      The Nation will exercise control over an area situated outside the territorial seas and adjacent to them, under the rights of sovereignty and the jurisdiction that the laws of the Congress determine. The exclusive economic zone will extend to two hundred nautical miles from where the territorial seas start. In those cases in which this extension produces conflict with the exclusive economic zones of other countries, the boundaries of these zones will be determined by means of agreements with those countries.(26) The creation of preliminary maritime zones between Mexico and the United States prompted further negotiations of boundaries between the two countries, leading to the Exchange of Notes on November 24, 1976.(27) Pursuant to the Exchange of Notes, the maritime boundaries were set at 200 nautical miles offshore of each respective coastline.(28) Because the boundaries established in the Exchange of Notes were merely "provisional," further agreement was necessary.(29) As a result, the United States and Mexico completed a formal agreement in 1978.(30) On May 4, 1978, then-U.S. Secretary of State, Cyrus Vance, signed the Treaty on Maritime Boundaries in Tlatelolco, Mexico.(31) The terms of the TMB, establishing the jurisdictional maritime boundaries of both the United States and Mexico, were identical to those provided in the Exchange of Notes.(32) Pursuant to Mexican...