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Similarly, counter-proliferation efforts at sea are hindered by UNCLOS Article 92, which provides that “ships sail under the flag of one state only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.” That means that a warship must have the consent of the flag state or the master to board and search a foreign flag vessel encountered seaward of the territorial sea of another nation. The enforcement regime established in both UNSCRs 1718 (2006) and 1874 (2009), which ban most arms transfers to and from North Korea, is based on exclusive flag state jurisdiction. Although UNSCR 1874 contains an enhanced maritime cargo inspection regime, it is still dependent on flag state consent (Operative Paragraph 12). UNSCRs 1696 (2006), 1737 (2006), 1747 (2006) and 1803 (2008), which impose a similar ban on material related to Iran’s nuclear weapons program, are likewise based on flag state jurisdiction. Interdiction efforts on the high seas under other non-proliferation initiatives, like the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)19 adopted by the International Maritime Organization (IMO) and the Proliferation Security Initiative (PSI)20 announced by President Bush in March 2003 to combat the growing threat of WMD proliferation, also suffer from the same weakness – they are based on flag state consent. It is highly unlikely that Iran or North Korea will give consent to a foreign warship to board one of its vessels at sea. In short, in could be argued that UNCLOS allows North Korea and Iran to transport WMD-related materials with impunity, hiding behind the concept of exclu- sive flag state jurisdiction on the high seas.
With regard to freedom of movement: President Reagan’s 1983 Ocean Policy Statement stated that UNCLOS “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice . . ..”16 The International Court of Justice reached a similar conclusion in the 1984 Gulf of Maine case, albeit in the context of the continental shelf and EEZ articles, indicating that the Convention’s provisions were reflective of customary international law.17 In short, today, all of the important provisions of UNCLOS dealing with freedom of movement, such as the rights of innocent passage, transit passage, archipelagic sea lanes passage, and high seas freedoms seaward of the territorial sea, are considered by virtually all nations as a reflection of customary international law that is binding on all nations. Both our commercial shipping and military forces have exercised and enjoyed these rights for the past 25 years, during which time the United States has not been a party to UNCLOS. Clearly, the United States does not have to become a party to the Convention to exercise its navigational rights and freedoms worldwide. Iran is the only country that continues to maintain that the right of transit passage through the Strait of Hormuz applies only to State Parties to the Convention. What we need more than membership in another treaty is a coherent national policy that supports freedom of navigation and a strong Navy that can challenge excessive coastal state claims that purport to curtail our freedom of movement and restrict our access to the world’s oceans.
Is having a seat on the46 "U.S. Ratification of the U.N. Convention on the Law of the Sea: Passive Acceptance Is Not Enough to Protect U.S. Property Interests ." North Carolina Journal of International Law and Commercial Regulation. Vol. 31, No. 3 (2005-2006): 745-792. [ More (7 quotes) ] CLCS an important enough reason to join the Convention? Would having a seat on the CLCS really put the United States Government in a position to have a say in deliberations over other nations’ extended continental shelf claims? Again, the answer to both of those questions is, “no.” The CLCS was established to help facilitate the implementation of Article 76. As a body of scientific experts, however, the CLCS does not have veto power over coastal state submissions. It may only make rec- ommendations to the coastal state on matters related to the establishment of the outer limits of its continental shelf. Coastal states may accept or reject these recommendations. Annex II (Article 8) to the Convention and CLCS Rules of Procedure (Rule 53) simply require the coastal state to make a revised or new submission in the case of disagreement with the recommen- dations of the Commission. Additionally, Annex II (Article 2) limits the membership of the CLCS to 21 experts, so there is no guarantee that a U.S. representative would be elected to the Commission even if the United States was a party to the Convention. Moreover, even if elected, the U.S. repre- sentative would serve in a personal capacity (Annex II, Article 2(1); CLCS Rules of Procedure (Rule 11)) and would be precluded from voting on any submission tendered by the United States (Annex II, Article 5; CLCS Rules of Procedure (Rule 42)). Having a seat at the table on the CLCS would not put the U.S. Government in a position to have a say in deliberations over other nations’ claims and would therefore have minimal benefit for the United States.
That UNCLOS membership would promote international maritime collaboration should be obvious. Less obvious, however, is how UNCLOS membership might also facilitate unilateral action. Consider the U.S. Freedom of Navigation (FON) Program.104 Consistent with the need to shape the law through state practice, the U.S. has historically conducted operations designed to challenge excessive maritime claims. The FON program provides a framework for conducting such operations. Although states with excessive claims will never publicly welcome U.S. challenges, the U.S. – as an UNCLOS party – would have greater credibility and standing to conduct challenges, reaffirming as a fellow-member the crucial tenants of an internationally accepted legal regime. In this context, challenges might be made more frequently and in more meaningful areas, rendering them a more potent component of U.S. strategic communication on freedom of the seas and airspace. Moreover, as an UNCLOS party, the U.S. could augment the diplomatic and operational means to challenge excessive maritime claims with the Convention’s mandatory dispute procedures. The U.S. thus would have those procedures to use offensively against excessive maritime claims that are not in compliance with the Convention, including those that limit military mobility and high seas freedoms.
As an UNCLOS party, the U.S. would assume a natural leadership role, facilitating coalitions and eliciting support from nations inclined to support the legal prerequisites for military maritime mobility. The U.S. relies on this support in a variety of contexts, ranging from the International Maritime Organization and regular bilateral interactions with partners and allies, such as the Proliferation Security Initiative,100 where there is direct evidence that non-party status has inhibited U.S. counter-proliferation efforts.101"Statement of Admiral Patrick M. Walsh: 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, September 27, 2007. [ More (4 quotes) ] UNCLOS membership would also enhance the U.S.’ influence with other states as they continue to evaluate their own practices and legal positions.102
Although there may have been a time when the U.S. could simply declare its will and rely on the persuasive power of its global presence and naval gross tonnage to ensure cooperation, the guarantors of success in the modern maritime domain are more likely successfully coordinated coalitions and bilateral relationships.103 UNCLOS membership would provide a strong foundation for both.
Formal membership prerogatives aside, given the conflation of UNCLOS and current customary law, U.S. membership in UNCLOS will reinforce customary law and give the U.S. a stronger basis to affect its development in the future. Ironically, U.S. isolationism from UNCLOS serves as the leading example for others who would selectively choose among UNCLOS provisions or even abandon it altogether, thereby eroding customary law. The U.S.’ current posture undermines the very legal principles the U.S. professes to support.
Today, not surprisingly, some find inconsistency and even hypocrisy in the U.S. practice of referring others to the Convention’s obligations without incurring reciprocal treaty obligations.97 U.S. arguments on substantive issues are burdened with the stigma of unilateralism,98"Playing by or Playing with the Rules of UNCLOS? ." in Military Activities in the EEZ: A U.S.-China Dialogue on Security and International Law in the Maritime Commons, edited by Dutton, Peter A. U.S. Naval War College: Newport, Rhode Island, December 2010. [ More (4 quotes) ] making it more difficult for states committed to the Convention’s processes and multilateral framework to support underlying U.S. arguments even where there may be basis for substantive agreement.99"Statement of Gordon England: 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 (September 27, 2007) ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (2 quotes) ]