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Unlikely that ITLOS will agree to U.S. interpretation of 'military activities' exemption

But it won't come to this, anyway, say defenders of the treaty. The treaty expressly provides for states to claim exemptions from compulsory arbitration where "military activities" are involved. And the United States will certainly claim this exemption. But are we engaging in "military activities" when we deploy a naval "cordon" to enforce a peacetime "quarantine"? Are we engaging in "military activities" when, in peacetime, we send warships into waters where their right of passage is contested by the host state? To answer such concerns, the Bush administration proposes that the Senate ratify the treaty with a statement of qualifications, including the "understanding" that the United States interprets this exemption to mean "military activities as defined by the United States." But the treaty expressly prohibits states from making "reservations" to its substantive provisions. For tribunal judges or international arbitrators to accept the American "understanding," they would have to accept the idea that any state can nullify its obligations under the treaty by characterizing all its contrary actions as "military activities" and therefore, if not permissible, at least immune to challenge from international authorities. How likely is it that the International Tribunal for the Law of the Sea or its designees will take such a self-effacing or self-denying view of their own authority?

Rabkin, Jeremy. "How Many Lawyers Does It Take to Sink the U.S. Navy? ." Weekly Standard. (September 10, 2007) [ More ]

US already accepts UNCLOS rules in Proliferation Security Initiative but doesn't have ability to guide its development as non-party

Moreover, current U.S. nonproliferation policy relies on the Convention. The Proliferation Security Initiative, an effort among more than 20 states, led by the United States, to share intelligence and stop weapons shipments, must conform to the Law of the Sea Convention. The other states in the PSI are party to the Convention.13 In their Statement of Interdiction Principles, the PSI parties agree to adhere to international law.14 In effect, this agreement means that when the United States works with allies as part of the PSI, it agrees to observe the rights of innocent passage and freedom of the seas. This agreement costs America nothing, because it already recognizes those rights. The United States could, of course, forcibly violate established rights of free passage in order to interdict weapons shipments. But this policy would be disastrous for two reasons. First, it would undermine the right of free passage, which is essential to U.S. trade and force projection. Second, it would destroy the Proliferation Security Initiative. The PSI cannot work without the cooperation of our allies, and their cooperation depends on the Initiative’s adherence to the Law of the Sea. Instead of fighting proliferation outside of international law, America can use international law to fight proliferation. One way to allow interdiction of weapons shipments is to alter the Convention to make proliferation grounds for interdiction on the high seas or in coastal waters. It would take a long negotiating effort, but the United States might succeed. By staying outside the Convention, the United States forgoes this opportunity but remains bound by the legal restrictions on interdiction.

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Friedman, Benjamin and Daniel Friedman. How the Law of the Sea Convention Benefits the United States . Bipartisan Security Group: Washington, D.C., November 2004 (7p). [ More (4 quotes) ]

UNCLOS treaty based on collectivist agenda to create global socialist entity

The Treaty is a weird mixture of the codification of some long established and widely accepted navigational rules for the oceans with an outdated and counter-productive collectivist scheme to make the oceans the funding source for an UN-organized wealth redistribution plan. The Treaty would create a socialist entity to develop the oceans viewed as “the common heritage of mankind.” The entity (the “Authority” and other bizarre language no longer heard even in North Korea) would gain its resources and knowledge by forcing private firms – likely US – to “share” with “all mankind.” That “what’s yours is mine” aspect of LOST will limit mankind’s ability ever to benefit from the potential resources of this vast area.

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Smith, Fred. "Statement of Fred Smith: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention ." Testimony before the Senate Foreign Relations Committee, October 4, 2007. [ More (5 quotes) ]

Coast Guard relies on international cooperation with allies under UNCLOS framework and would be Bette served if US were also a party to the convention

For many of the laws the Coast Guard enforces, especially those involving drug trafficking, illegal immigration, and counterterrorism, we leverage international partnerships to monitor, interdict, and prosecute those who threaten our Nation’s security. Our international partners are overwhelmingly parties to the Law of the Sea Convention. Our status as a non-party presents an unnecessary obstacle to gaining their cooperation. Accession to the Convention would most effectively cement a common cooperative framework, language, and operating procedures used in securing expeditious boarding, search, enforcement, and disposition decisions, thereby enabling on-scene personnel, cutters, and maritime patrol aircraft to pursue further mission tasking. We also must cooperate and engage with our international partners to advance global and regional security priorities. Strengthening these relationships is crucial for sustaining our international leadership. Acceding to the Convention is an important step to achieving these goals. Frequently, the Coast Guard works internationally to train other nations’ navies. These navies more closely resemble the Coast Guard in authority and activity, uniquely positioning us to expand important maritime partnerships. The Convention serves as our guiding framework in helping these navies develop domestic law, protocols, and strategies. The Coast Guard needs the Convention to better promote United States security interests through capacity building. Building this capacity is an important force multiplier for the Coast Guard that further secures stability of the oceans, promotes efficient maritime commerce, and aids us in achieving strategic objectives regarding safety, security, and environmental protection.

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Papp, Robert. "Statement of Admiral Robert Papp: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, June 14, 2012. [ More (4 quotes) ]

Risk that tribunal would interfere with US military activities, already low, would be even lower if US was party to the convention

The role of the Law of the Sea Tribunal is to resolve disputes over the Convention. The Convention mandates that the Tribunal resolve all disputes, except those involving military activities. Opponents of the Convention argue that the tribunal could dispute U.S. designations of certain activities as military, forcing the U.S. to limit military operations. Some even claim American “citizens could be dragged before politically motivated foreign jurists.”¹⁸

Professor John Norton Moore, the leading U.S. expert on the law of the sea, told the Senate Foreign Relations Committee that the chances of the Tribunal undermining U.S. military operations was comparable to that of a meteorite striking the capitol building.¹⁹ Still, administration officials have taken precautions. Upon joining the Convention, the United States would submit a declaration stipulating that it is acceding on the condition that states themselves have the authority to decide whether activities are military.²⁰ Opponents think that even this precaution leaves a chance of the Tribunal harassing the U.S. military.

As a party to the Convention, however, the United States can nominate the judges to sit on the tribunal, rendering this wildly remote possibility even more unlikely. If the United States does not ratify the Convention, it has no control over the decisions the Tribunal reaches. The Tribunal will never have power over the U.S. military, but its decisions will form precedents that will help resolve future maritime disputes. Those precedents would affect U.S. interests.

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Friedman, Benjamin and Daniel Friedman. How the Law of the Sea Convention Benefits the United States . Bipartisan Security Group: Washington, D.C., November 2004 (7p). [ More (4 quotes) ]

UNCLOS is irrelevant to resolution of South China Sea dispute because China is basing its legal arguments on disputed historical claims

Commander of U.S. Pacific Command (PACOM) Admiral Robert F. Willard testified this week before the Senate Armed Services Committee that “…China does not make legal claims to this entire body of water…” (the several bodies of water that China calls its “near seas”). When it comes to at least one of these seas—the South China Sea—the statement is meaningless. Admiral Willard notes—and he would know—that China does “seek to restrict or exclude foreign, in particular, U.S., military maritime and air activities” in the South China Sea. A number of incidents over the last couple years point vividly to this problem. And China often uses legal arguments to explain its behavior. But China’s underlying sovereignty claims are not just “legal.” They are historical. In 2009, the Chinese circulated the famous nine-dash map that lays out its historical claim to virtually all of the South China Sea. That provoked a complaint from Indonesia. Indonesia is not generally considered one of the claimants in the South China Sea dispute. However, it objected because while it sees no threat in China’s legal claims, the historical claims represented by the nine-dash map include Indonesian waters. Now the Philippines has formally registered an objection to the Chinese sovereignty grab, to which the Chinese have responded by citing both the legal and historical bases for their claims. This brings us back to Admiral Willard’s statement. The legal basis of China’s claims to the South China Sea is meaningless as long as it maintains an alternative historical case. This also means that UNCLOS—which Admiral Willard gently urged the Senate to ratify—is irrelevant to settlement of the dispute. In fact, the treaty’s filing deadlines and apparent wiggle room on things like “Exclusive Economic Zones” (EEZ) and baseline determinations seem to have exacerbated the conflict.

Walter Lohman. "U.N. Doesn’t Give America Its “Seat at the Table” in Maritime Disputes ." Heritage Blog. (April 14, 2011) [ More ]

UNCLOS supports U.S. efforts in the global war on terrorism by preserving navigational freedom

The Convention was drafted before – and without regard to – the war on terror and what the United States must do to wage it successfully.

It is true that the Convention was drafted before the war on terror. However, the Convention enhances, rather than undermines, our ability to successfully wage the war on terror.
Maximum maritime naval and air mobility that is assured by the Convention is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for our forces, weapons, and materiel to get to the fight without hindrance – and ensures that our forces will not be hindered in the future.
Thus, the Convention supports our war on terrorism by providing important stability for navigational freedoms and overflight. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and not be contingent upon approval from nations along the routes. A stable legal regime for the world’s oceans will support global mobility for our Armed Forces.

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Taft, William H. "Statement of William H. Taft IV (April 8, 2004): Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ]

India is working to mine rare earth elements from seabed to counter China's monopoly

India has joined the race to explore and develop deep-sea mining for rare earth elements — further complicating the geopolitics surrounding untapped sources of valuable minerals beneath the oceans. The country is building a rare-earth mineral processing plant in the east coast state of Orissa and it is spending around US$135 million to buy a new exploration ship and to retool another for sophisticated deep-water exploration off its coast. The Central Indian Basin, for example, is rich in nickel, copper, cobalt and potentially rare-earth minerals, which are highly lucrative and used widely in manufacturing electronics such as mobile phone batteries. They are found in potato-shaped nodules on the deep-sea floor. "These nodules offer a good solution to meeting the nation's demand for metals," C. R. Deepak, head of the deep-sea mining division at the National Institute of Ocean Technology (NIOT), Chennai, told SciDev.Net.

Paula Park and T.V. Padma. "India joins deep sea mining race ." The Guardian. (August 30, 2012) [ More ]

U.S. efforts to address excessive claims outside of UNCLOS framework are unsustainable

U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).

It is not true that our navigational freedoms are not threatened. There are more than one hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms.
The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But these operations entail a certain amount of risk – e.g., the Black Sea bumping incident with the former Soviet Union in 1988.
Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict.

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UNCLOS will not interfere with PSI or interdiction efforts, all provisions are the same as 1958 convention

I would also like to address the relationship between the Convention and the President’s Proliferation Security Initiative, an activity involving the United States and several other countries (all of which are parties to the Convention). The Convention will not affect our efforts under the PSI to interdict vessels suspected of engaging in the proliferation of weapons of mass destruction. The PSI requires participating countries to act consistent with national legal authorities and “relevant international law and frameworks,” which includes the law reflected in the 1982 Law of the Sea Convention. The Convention’s navigation provisions derive from the 1958 law of the sea conventions, to which the United States is a party, and also reflect customary international law accepted by the United States. As such, the Convention will not affect applicable maritime law or policy regarding interdiction of weapons of mass destruction. Like the 1958 conventions, the Convention recognizes numerous legal bases for taking enforcement action against vessels and aircraft suspected of engaging in proliferation of weapons of mass destruction, for example, exclusive port and coastal State jurisdiction in internal waters and national airspace; coastal State jurisdiction in the territorial sea and contiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which the flag State may, either by general agreement in advance or approval in response to a specific request, waive in favor of other States); and universal jurisdiction over stateless vessels. Further, nothing in the Convention impairs the inherent right of individual or collective self-defense (a point which is reaffirmed in the proposed Resolution of Advice and Consent).

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