Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”

Evidence

US being excluded from international maritime policy because it has failed to ratify UNCLOS

The US is therefore increasingly not being allowed in the game because it mistakenly believes that its punched ticket from the last game is good for this one. Were the US to ratify UNCLOS 1982 it would be in the current global maritime game with no protest or recalcitrance from any other state on those grounds. It follows that US policy positions unrelated to ratification, as argued by the author, would have more wins and fewer losses with commensurate better understanding of how world trade works. For it is the good order of law which facilitates trade. And trade not ideology is the engine that powers the modern, interdependent world. As we are sure the author would agree, trade is more efficient when regulatory uncertainty is reduced. UNCLOS 1982, whatever its minor flaws may be, provides muchneeded order in ocean governance and management and removes many of the uncertainties that have existed since the Grotius-Selden debate almost three centuries ago. Indeed, as the author undoubtedly recognizes, the vast majority of global trade moves on the oceans. This is, without question, one of the principal reasons underlying the existence of UNCLOS 1982 and its predecessors. We ask and not rhetorically that if trade is not the fundamental basis for national security, then what is? Global trade will continue in the rest of the world with or without US participation. It will prosper for all states including the US with a predictable, global regulatory system such as UNCLOS 1982. It will suffer, however, when regulatory fragmentation through unilateral action of a state takes place.

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Cartner, John A. C. and Edgar Gold, Q.C. "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”." Journal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ]

US contributions to maritime leadership increasingly seen as irrelevant because of its failure to ratify UNCLOS

The above propositions can easily be illustrated. In terms of realpolitik, in a case or controversy before the court, in which one files a brief as amicus curiae, one has no standing except at the grace of the court. Even if that court chooses to read the brief, it may not be persuaded by it, and in some cases such briefs become useful to a party opponent. So it is with the US and UNCLOS 1982. On any matter being considered, the effectiveness of US leadership depends to a great extent on the other members of the global community. The US and the United Kingdom (UK) have long taken the lead in the development of maritime law and safe navigation. Most other states active in the maritime sector have been followers of this leadership. Although historically the UK has better exploited its role for at least two centuries, the importance of the US as a global leader in establishing maritime law has not been fully grasped by the US government since the 19th century. Without ratification of UNCLOS 1982, the US has even less maritime standing in the community of nations, n61 and its contributions will rapidly be marginalized or seen as irrelevant.

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US failure to ratify treaty modifications it demanded has undercut credibility in international negotiations

During the UNCLOS negotiations, there was concern by the global community and the US for the greater good to avoid an oceanic tragedy of the commons.ⁿ⁵⁷ Thus a way had to be found to accommodate US interests even on seabed mineral extraction matters. As a result, negotiations continued for a number of years and resulted in a separate agreement responding fully to US objections.ⁿ⁵⁸ This agreement has now been accepted by 140 states but curiously and strangely not by the US for which it was designed!ⁿ⁵⁹ This yet again illustrates the difficulty US negotiators have at critical international meetings when they achieve what is required. This problem moreover undercuts US credibility internationally as a reliable negotiating partner. The world's impression is that the US propounds, urges, uses its bully pulpit, negotiates strongly, and then fails to follow through. A tragedy of the commons may be more difficult to avoid than otherwise without the strong US leadership made possible by its following through with advice, consent, and ratification.

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Seat on CLCS council valuable in that it allows US to take part in discussions and engage other participants

A seat on the Continental Shelf Commission (CSC) is not an exercise in veto power as the author correctly pointed out. It is far better than that. It is a way to understand intimately and firsthand what other states on the Commission are thinking, planning, and implementing.ⁿ⁵⁰ Without a seat the US has neither eyes nor ears. This means as a matter of practicality that informal networking, so essential in international law, is greatly restricted. Hence such a seat provides the government valuable strategic intelligence for little cost. The collective arguments the author puts forward against the seat are conservative and minimalist and perhaps even non-purposive and deconstructionist. His arguments provide no substantive basis for not being on the Commission. Membership would not harm the US. It would provide a good deal of potential advantage. We believe that it would be better to have a representative at the table who would understand and report on the dynamics of the CSC instead of being excluded and having the government read about the CSC's works in the newspapers. Some of the most important [*60] marine resources are being exploitedⁿ⁵¹ and will be found in the future on the world's continental shelves. US industry is and will continue to be in the capitalised forefront of these developments. A properly codified regulatory system contributed to by the US will be essential to protect US interests. Indeed, as interest and activities in the Arctic Ocean become more and more prevalent by the Russian Federation, Canada and others, the US risks losing valuable positions by not ratifying.

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Ratification of UNCLOS would further US national security interests in multiple ways

Nonetheless, recognizing national security as important, it should be remembered that some clauses within the UNCLOS 1982 framework can assist in these goals for every state party including the US. We think, for example, that national security must surely encompass resource and energy security, environmental security, and maritime and navigational security, each addressed in UNCLOS 1982. We ask also, perhaps not rhetorically, when has the world not been dangerous? Each age and each state defines its own dangers and looks for cooperative ways to meet them. There is almost nothing in UNCLOS 1982 that is not of some favourable relevance to state sovereignty, state security, or many other matters of vital importance for every state. This must perforce include the US and its government’s current but historically deviate fixation on self-defined and perceived rather than objectively real threats. The UNCLOS 1982 basis of global ocean manage- ment encompasses five guiding principles that provide a comprehensive international system for ocean governance and rules for access to maritime resources; the protection and preservation of the marine environment; marine scientific research; the development and transfer of marine technology; and the settlement of disputes. Those principles would only assist the US or any other state in its proper national security goals. Ignoring them, by any mechanism, including excessively focusing on improper ones or choosing not to accept them as an organising principle along with most other states to help the world understand national security in similar terms, harms any state doing so. Hence, the US is harming itself by not ratifying.

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US sovereignty harmed more by remaining outside the convention as it will be subject to customary international law without ability to guide treaty

The author placed great emphasis on the Truman Proclamation 2667 (1945) and the Continental Shelf Convention 1958, to which the US is party, as being sufficient to meet all the current US needs. In so doing he uses two arguments which, to our minds, are merely legalistic. Thus he said, n44 as a parser of forms of words, that the difference in context between a coastal state and a state party among separate clauses in narrative usage determines whether or not the US should ratify. This position ignores the fact that UNCLOS 1982 was negotiated by the global community in order to provide a uniform, codified system for ocean management, including the Continental Shelves, for all states. This seems to be made clear by the exceptionally clear definitions contained in it. Thus, most of the world has agreed to go along with a clear Continental Shelf statement in UNCLOS 1982. n45 While the US may, of course, go it alone outside UNCLOS 1982, there is little doubt that a generally uniform global convention reduces uncertainty and confusion for all states parties as well as it would for the US if it were a party. Acceptance would not only further the rule of law but would also be a step closer to the goal of making maritime law uniform. This elusive goal, of course, has seen some progress in the past 150 years. n46 The US can have a [*59] great deal of influence on future developments within the UNCLOS 1982 regime if it has the prima facia credential of being a party. Unfortunately, isolation only diminishes its influence. Here, there seems to be the face of a neoisolationist and parochial sovereignty thematically buried in the author's arguments against UNCLOS 1982. However, every state large or small gives up some of its sovereignty in accepting any international convention, treaty, or agreement to which it is a party. n47 Every act under customary law may have the same effect albeit less precisely measurable and not as predictable by other states. The treaties of Munster n48 and Osnabruck, n49 further embodied in the instruments from the Congress of Vienna, are the cornerstones of modern state sovereignty and statehood. However, even such treaties were never pristine and precisely geometric in concept. There never has been an ideal sovereign within an ideal state having ideal laws. Like all law, international law is a living and sociallyrooted concept making survival of the world body politic more likely. Indeed, that is the impetus for its existence. That body of law, however, can be developed, revised, discarded, changed, and superseded by the wellknown mechanisms suggested supra. This has a clear implication not addressed by the author to which we wish he had given thoughtful detail.

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Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”

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