U.S. ratification of UNCLOS treaty necessary to restore maritime leadership role
The United States has historically been the world leader in protecting the common interest in navigational freedom and the rule of the law in the oceans. However, America has temporarily lost that leadership by its continued non-adherence to UNCLOS. U.S. accession to the Convention will restore that role and advance U.S. leadership in Arctic Ocean issues.
Quicktabs: Arguments
The shipping standards negotiated at the IMO are the fabric of the port state control regime that is underpinned by the Convention. It is the Convention that sets forth the responsibilities of flag states, port states, and coastal states for shipping, and the Convention is the agreement that holds nations accountable for adhering to those responsibilities. Because of the currently anomalous situation where the United States is a party to the substantive IMO standards, but not the underlying legal framework of the Convention, our ability to ensure comprehensive global accountability demanded by the port state control framework is weakened. Acceding to the Convention would strengthen Coast Guard negotiation efforts at the IMO, where we lead in the continued development of these important international standards. Although other countries look to us for leadership, there is growing skepticism for certain U.S. negotiating positions because the United States is not a party to the Convention. Becoming party to the Convention would increase the Coast Guard’s credibility as a leader at IMO and result in greater effectiveness in ensuring that U.S. interests are reflected in the standards that are ultimately adopted. The Coast Guard needs the Convention to better promote United States safety, security, and environmental interests at the IMO.
UNCLOS would also greatly enhance the global leadership position ofthe United States in maritime affairs, an area in which the Coast Guard has long played a vital role. Many states have excessive claims with respect to baselines, historic bays, territorial seas, straits, and navigational restrictions which, in the opinion of many, are not permissible under the Convention. As a non-party, our ability to seek to roll back these excessive claims is severely inhibited. Failure to accede to UNCLOS will materially interfere with our ability to engage with other states to improve maritime governance, a maj or part of the Coast Guard's current strategy for maritime safety, security, and stewardship. Our non-party status is an obstacle that we must overcome in developing virtually any new multilateral maritime instrument. For example, several key states whom we want to join the Proliferation Security Initiative (PSI) often question our non-party status. Likewise, while the United States has long played a key role in the International Maritime Organization (IMO) to promote maritime safety and efficiency and to protect the marine environment, our leadership position is being undermined by our current outsider status. As a non-party, the United States has no "seat at the table" in virtually all matters concerning the Convention. The United States does not have a judge on the Law of the Sea Tribunal nor a decision-maker or staff experts on the Continental Shelf Committee. And despite the fact that the 1994 "Part XI Implementation Agreement" guarantees the United States a permanent seat on the International Seabed Authority (ISA) and a veto on all key decisions of that body, as a non-party, we cannot play that critical role. In article after article, UNCLOS reflects diplomatic victory after victory for the United States. However, as a non-party, we cannot take advantage of these benefits. One of the key reasons that the congressionally mandated U.S. Commission on Ocean Policy has consistently and unanimously called for the United States to accede to the Convention was to regain its ocean policy leadership position.
As a natural corollary, the accession to the LOS Convention will provide the US access to the Convention‘s procedural mechanisms and institutions. This access is necessary for the US to secure and advance its national interests in the ocean space and play a meaningful role in the implementation of the law of the sea in the contemporary world. Firstly, accession to the LOS Convention will provide US a seat in the Commission on the Limits of the Continental Shelf (CLCS Commission), which in turn will help US to secure and advance its claim for the extended continental shelf beyond 200 nautical miles. Secondly, the US will have access to the International Sea-bed Authority (ISBA Authority) decision-making process as the member of its Council. This will help the US to protect its interests in the deep sea-bed mining activities. Thirdly, the US will get a seat in the judicial body - International Tribunal for the law of the Sea (ITLOS). This will facilitate US active participation in the judicial dispute settlement concerning ocean matters related to the interpretation or/and application of the LOS Convention. Broadly, the access to the UNCLOS-related institutions will provide an opportunity to the US to play an active role in the implementation and development of the law of the sea in the contemporary world.
Assistant Secretary of State John F. Turner cited the urgency for accession at the outset of his testimony: “there are important reasons for the United States to become a party to this Convention and to do so now.”67 Not surprisingly, the State Department highlighted accession as a means of maintaining U.S. leadership in global matters; contributing to the ongoing evolution of international law-making; and supporting peaceful methods of international dispute resolution. In an effort to perhaps illustrate the dwindling opportunity to portray the United States as being at the forefront, Turner explained, “as of today, 143 parties, including most of our major allies, have joined the Convention. It is time for us to take the opportunity to demonstrate U.S. leadership on ocean issues by becoming a party to the Law of the Sea Convention.”68
The United States has historically been the world leader in protecting the common interest in navigational freedom and the rule of the law in the oceans. However, America has temporarily lost that leadership by its continued non-adherence to UNCLOS. U.S. accession to the Convention will restore that role and advance U.S. leadership in Arctic Ocean issues.
Joining UNCLOS will put the United States on an even footing with the other Arctic nations, as America assumes the chairmanship of the Arctic Council from Canada in 2015. All of the Council’s member States (except the United States) and its 12 observer States are parties to the Convention. Moreover, in 2008, the five Arctic coastal States (Canada, Denmark, Russia, Norway and the United States) declared at Ilulissat that the law of the sea, as reflected in UNCLOS, is the legal framework that governs the Arctic Ocean, and there is no need for a new legal regime to govern the Arctic Ocean.53 Therefore, U.S. participation in the Arctic Council recognizes UNCLOS as the governing framework in the Arctic
The last point I would like to address is that of a resumption of a clear leadership role for the United States in international oceans policy affairs—an area where we have so much at stake.
As the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role. The United States can lead the movement to the achievement of a widely accepted international order, regulating and safeguarding the diverse activities and interests regarding the world’s oceans. The Convention affords us the opportunity to lead in a way that protects and promotes U.S. national security interests. To ensure a leadership role in this important arena, the United States must become a party to the Convention.
By remaining outside the Convention, our long-standing leadership role in international ocean affairs, and in fora such as the International Maritime Organization, would be further eroded. Moreover, as an outsider looking in, we would not be in a position to influence the Convention’s further development and interpretation. In effect, as mentioned earlier, by refusing to become a Party to the Convention, the only way we could seek to influence changes in the LOS regime would be through unilateral action, and that could lead to further destabilization and increased international friction.
Until our prolonged non-adherence to the 1982 Convention, the United States has been the world leader in protecting the common interest in navigational freedom and the rule of the law in the oceans. We have at least temporarily forfeited that leadership by our continued non-adherence. United States ratification of the Convention will restore that leadership. Specifically, ratification will have the following effects, among others:
- The United States will be able to take its seat on the Council of the International Seabed Authority. The authority is currently considering a mining code with respect to polymetallic sulfides and cobalt crusts of the deep seabed. Council membership will also give us important veto rights over distribution of any future revenues from deep seabed exploitation to national liberation groups;
- The United States should, at the next election of judges for the International Tribunal for the Law of the Sea, see the election of a United States national to this important tribunal. Since this Tribunal frequently considers issues relating to navigational freedom and the character of the 200 mile economic zone it is a crucial forum for the development of oceans law;
- The United States should, at the next election of members of the Commission on the Limits of the Continental Shelf, see the election of a United States expert to the Commission. This Commission is currently considering the Russian claim in the Arctic that is of real importance for the United States (and Alaska) and for appropriate interpretation of the Convention respecting continental margin limits. Over the next few years the Commission will begin to consider many other shelf limit submissions, beginning next with Australian and Brazilian claims. This is also the Commission that ultimately must pass on a United States submission as to the outer limits of our continental shelf beyond 200 nautical miles. The early work of the Commission, as it begins to develop its rules and guidelines, could significantly affect the limits of the United States continental shelf. Not to actively participate in the work of this Commission could result in a loss of thousands of square kilometers of resource-rich United States continental shelf;
- The United States will be able to participate fully in the annual meeting of States Parties that has become an important forum for ongoing development of oceans law. Of particular concern, United States presence as a mere observer in this forum has in recent years led to efforts by some to roll back critical navigational freedoms hard won in the LOS negotiations where we were a leader in the negotiations and our presence was powerfully felt; and
- The United States will be far more effective in leading the continuing struggle against illegal oceans claims through our participation in specialized agencies such as the International Maritime Organization; in bilateral negotiations such as those with the archipelagic states; in acceptance by other states of our protest notes and our ability to coordinate such notes with others; and generally in organizing multilateral opposition to threats to our oceans interests and the rule of law in the oceans.
Advocates against U.S. accession believe it would disadvantage U.S. interests and place the U.S. under the thumb of the ISA.168 The assertion that U.S. interests will be lost in the sea of interests of the other 167 Member States is misplaced.169 U.S. interests have not been represented, in part, due to its 33-year absence.170 The deep seabed mining framework continued to develop and gain popularity despite the U.S.’s absence.171 Only by acceding to UNCLOS, will the U.S. regain its proper place as a world leader in shaping the law of the sea while representing its own interests in the proper international arena—before the ISA.172
When the treaty was still gaining its sea legs, the U.S.’s influential impact was evident through its ability to band seven industrialized nations173 into forming the Provisional Understanding, an agreement that operated outside the ISA’s purview.174 After the ISA declared the Provisional Understanding “wholly illegal” under UNCLOS, all seven members of the treaty essentially abandoned the U.S. and ratified the treaty in the 1990’s.175 The realization that the ISA’s deep seabed mining was becoming increasingly appealing became a significant factor in the U.S. diminishing influence over matters relating to the law of the sea.176
The fear that U.S. interests will be dominated by the interests of other Member States is overstated by critics of UNCLOS.196 U.S. accession will be a landmark event in UNCLOS’ history and will make waves throughout the international community.197 The reemergence of the U.S. will make a considerable impression and will only grow over time.198 Former U.S. Army General and the 18th Chairman of the Joint Chiefs of Staff, Martin Dempsey, stated the impact best when he said “We have the world’s largest and most capable Navy, the world’s largest economy and the largest Exclusive Economic Zone. We will become the leader within the Convention as soon as we enter it, and that’s never been more important” [emphasis added].199 To properly reassert itself as an influential player, relevant leader, and active participant in the affairs of the oceans, the U.S. must accede to UNCLOS.200