U.S. already abides by UNCLOS as a matter of customary international law and domestic policy

To further demonstrate its support for the Convention’s legal regime, a succession of US presidents over the past three decades have directed a multi-agency US Freedom of Navigation Program to preserve the nation’s rights, freedoms, and lawful uses of the sea and airspace throughout the world. Of note, this US interest in freedom of navigation has included maintaining that freedom in the waters of East Asia, as demonstrated by a combination of public statements, diplomatic correspondence, and operational activities. Through the 1980s, 1990s and 2000s, the US Department of State has diplomatically protested and the US Department of Defense has operationally challenged excessive maritime claims asserted by nations in East Asia that are inconsistent with the Convention. These US efforts to preserve the legal regime reflected in the Convention are transparently documented in the US Department of Defense’s Annual Freedom of Navigation Reports and its Maritime Claims Reference Manual, both of which are available to the public on the Internet.

At the same time, the United States has demonstrated support for the Convention’s legal regime through its actions as a coastal state, to include respecting all of the rights, freedom, and lawful uses of the sea and airspace exercised by other states. For example, when vessels and aircraft from foreign militaries, such as Russia20 and China,21 conduct military activities in and over the US exclusive economic zone, the United States has fully respected this “other internationally lawful use of the sea” by foreign militaries reflected in the Convention 
 

The United States will at some point fully adhere to the Convention. Every oceans industry interest in the United States supports the Convention, from the oil majors to the environmentalists. Indeed, the only opposition is ideologically based, rather than interest based, and even then is senseless un- less rooted in inaccuracies about the Convention. In the meantime, the United States accepts the normative provisions of the Convention as cus- tomary international law, and the United States Navy has one of the best records in the world in careful compliance.

As the nation with the world’s largest navy, an extensive coastline and a continental shelf with enormous oil and gas reserves, and substantial commercial shipping interests, the United States certainly has much more to gain than lose from joining the Law of the Sea Convention. In my view, it is most unfortunate that a small but vocal minority – armed with a series of flawed arguments – has imposed upon the United States a delay that is contrary to our interests. Nevertheless, I am convinced this will change and am confident that the United States Senate will approve the Convention in due course.

In the meantime, the United States will continue to abide by the Convention and work within its framework. Even as we remain outside the Convention, the Legal Adviser’s Office confronts law of the sea issues on a daily basis. For example, we work at the International Maritime Organization and in regional fora to protect the marine environment by elaborating rules for reducing vessel source pollution, ocean dumping, and other sources of marine pollution. We recently achieved U.S. ratification of a treaty – “MARPOL Annex VI” – aimed at limiting air pollution from ships and a protocol limiting land-based sources of marine pollution in the Caribbean Region. A global treaty on ocean dumping – the “London Protocol” -- awaits action by the full Senate. At home, we coordinate with the Department of Justice to ensure that prosecutions involving foreign flag vessels are consistent with the marine pollution chapter of the Convention, and we scrutinize legislative proposals from both the Executive Branch and the Congress to ensure that U.S. marine pollution jurisdiction is applied and enforced in accordance with law of the sea rules.

We also negotiate maritime boundary treaties with our neighbors in line with the provisions of the Convention. Most people think the United States has only two neighbors – Canada and Mexico – but by virtue of our island possessions, we actually have over thirty instances in which U.S. maritime claims overlap with those of another country. Less than half of them have been resolved. Some involve disagreements about how much effect to give to islands in determining a maritime boundary. In the case of the Beaufort Sea, Canada argues that the existing treaty establishing the land boundary between Alaska and Canada also determines the maritime boundary. Our office is also assisting a State Department-led Task Force to determine the outer limits of the U.S. continental shelf beyond 200 nautical miles. The U.S. Coast Guard icebreaker Healy has recently conducted several cruises in the Arctic Ocean, including one that mapped areas of the Chukchi Borderland where the U.S. shelf may extend more than 600 miles from shore.

U.S. and international efforts to combat terrorism and proliferation have also generated law-of-the-sea-related issues. Consistent with the Convention, we fashion shipboarding agreements to promote the maritime interdiction aspects of the Proliferation Security Initiative. And we bring law of the sea equities into the elaboration of treaties on suppression of criminal acts at sea. In fact, the U.S. Senate has just given its advice and consent to ratification of two protocols that supplement the convention that addresses suppression of unlawful acts at sea – the 2005 so-called “SUA Protocol” and the 2005 “Fixed Platforms” Protocol.

In August 2007, Russian scientists descended 4,261 meters (13,976 feet) beneath sea level at the North Pole, using two dual-manned submers- ibles, Mir-1 and Mir-2.18 The mission had two purposes: first, to collect samples of soil from the seabed directly beneath the North Pole, which is within the claims that Russia submitted to the commission and along the Lomonosov Ridge; and second, to place a one meter tall titanium Russian Federation flag, creating nationalist symbolism behind Russia’s claim and reinforcing its dedication to being a major power, both scientifically and economically, in the Arctic region.

Because of the suddenness of the claim by Russia, four other countries with a potential stake (Denmark, Norway, the United States, and Canada), and one without a stake (Japan), have submitted written responses to the Commission. Denmark and Canada have both refused to offer an opinion immediately after Russia’s submission, citing the necessity of additional and more specific data.¹⁹ The remaining countries, the United States, Norway, and Japan,²⁰ have offered negative responses. Norway, having submitted a claim in November 2006 (beyond their 200 nautical mile EEZ) that does not overlap with Russia’s claim, was most concerned with overlapping claims along mutual borders, a “maritime dispute” that has not yet been settled and which could be problematic for both countries.²¹ The United States submitted a detailed response, using scientific data to support a position that neither the Alpha-Mendeleev or the Lomonosov Ridges are part of any state’s continental shelf, but are rather independent features consisting of magma or freestanding formations. The official U.S. position advised:

The integrity of the Convention and the process for establishing the outer limit of the continental shelf beyond 200 nautical miles ultimately depends on adherence to legal criteria and whether the geological criteria and interpretations applied are accepted as valid by the weight of informed scientific opinion. A broad scientific consensus of the relevant experts... is critical to the credibility of the Commission and the Convention.²²

This statement suggests that the United States would like the convention and commission to look strongly and carefully at the evidence presented by Russia before determining any course of action. It also indicates that the United States is first deferring to the standards established in UNCLOS for dispute settlement, despite not being a signatory to the agreement.