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While the Convention explicitly allows a state party to declare that certain conflicts will not be subject to the Treaty’s dispute resolution processes, those exceptions are narrow. Article 298(b) allows a state party to effectively insulate “military activities” from Convention jurisdiction. Concerned that an adverse party might seek to apply the Convention’s jurisdiction to a U.S. activity by characterizing it as nonmilitary, the Department of Defense recommended that accession to the Treaty be conditioned upon “the understanding that each Party [to the Convention] has the exclusive right to determine which of its activities are ‘military activities’ and that such determination are not subject to review.”57 This condition would protect a state party from becoming subject to a Convention-based dispute resolution tribunal if the military activity claim/exemption to such a tribunal were called into question.58
Speaking on behalf of the Joint Chiefs of Staff, Admiral Michael G. Mullen re- iterated the concerns raised by others in the defense community and agreed that the “military activities” exemption condition was of paramount importance in a U.S. move toward accession. The Admiral also agreed that accession was warranted. “Military operations since September 11 . . . have dramatically increased [U.S.] global military requirements.”59"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ] In particular, Mullen noted that U.S. military operations relied upon “[t]he right of transit passage through international straits and the related regime of archipelagic sea lanes passage.”60"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ] While maintaining that those rights were available to the United States under customary international law, “as a party to the Convention, the United States would . . . be in a stronger leadership position to assert its rights.”61"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ]
The Foreign Relations Committee heard testimony by Paul Kelly, on behalf of petroleum and other industrial associations, advocating Treaty accession as a means of facilitating energy development on the continental shelf beyond 200 nautical miles. While the Convention allows for continental shelf claims to 350 miles and in some cases even beyond this, as a non–state party, the United States has no treaty-based means of making such a claim. Kelly painted a picture of an energy industry ready, willing, and able to move oil and gas extraction production into deepwater areas beyond 200 nautical miles of the United States.85"Statement of Paul L. Kelly: On the United Nations Convention on the Law of the Sea ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (6 quotes) ] Citing technology that now allows for oil and gas development in water depths approaching two kilometers, Kelly pointed out that “U.S. companies are interested in setting international precedents by being the first to operate in areas beyond 200 miles and to continue demonstrating environmentally sound drilling and production technologies.”86"Statement of Paul L. Kelly: On the United Nations Convention on the Law of the Sea ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (6 quotes) ] While Kelly touted the ambitious and environmentally sound plans of industry, the environmental community had its own advocate citing the myriad reasons for Treaty accession.
Oil and natural gas are not the only resources likely to be found in the Arctic valuable minerals may also exist on the seabed. Scientists have long known about unconventional mineral ore deposits known as manganese nodules. These nodules are spherical accretions of manganese, cobalt, copper and nickel which precipitate out of sea water at depth. n48 They form when warm solutions of dissolved metals from the earth's crust leach into cold ocean waters, and they are found on roughly a quarter of the ocean floor.n49 Recovering the nodules can be technically difficult. The nodules are usually found under at least 2 miles of water and dredging them stirs large quantities of sediment which seriously disrupts marine habitat.n50 Thus, excitement surrounding the minerals has calmed significantly since the 1970's.n51 Not only must the technology become cheaper and more widely available, but industrial commodity prices must also remain high to make manganese nodules profitable.n52
China claims as their “historical waters” more than three-fourths of the South China Sea, delineated by the so-called nine–dash line, pictured below.
These claims are generally considered outrageous by everyone except the Chinese, who have kept the justification for them (and the nature of the claims themselves) ambiguous. The Obama administration has done an admirable job of standing with other Southeast Asian countries trying to resist China’s pressure in these territorial disputes. The administration has called for a multilateral process based on the rule of law, rather than the bilateral approach Beijing prefers.
But the U.S. position would be much stronger if the United States could simply say that, “The U.N. Law of the Sea Convention should govern this dispute.” As Secretary of State Hillary Clinton explained in her recent testimony before the Senate Foreign Relations Committee:
I’m sure you have followed the claims countries are making in the South China Sea. Although we do not have territory there, we have vital interests, particularly freedom of navigation. And I can report from the diplomatic trenches that as a party to the convention, we would have greater credibility in invoking the convention’s rules and a greater ability to enforce them.
The Chinese get a lot of mileage in conversations with Southeast Asian nations from the United States not being a party to the convention. (“How can the Americans tell us that Law of Sea Convention applies when they haven’t even ratified it?”) That’s why Secretary Clinton was joined by five Republican predecessors, who penned an op-ed in the Wall Street Journal this past month asking for Senate ratification.
Here is another critical point: The 163 parties to Law of the Sea Convention could choose to change the convention’s terms at any time. After all, the convention as it stands today is not the same as earlier versions. In fact, there is a marked trend now toward coastal states claiming more jurisdiction over their adjacent waters than the current convention recognizes.
Chances are that any new version of the convention called for by Brazil, China, and other emerging coastal powers would push in favor of a more “Chinese” definition of exclusive economic zone transit rights. They might call for a larger zone with more limited rights for noncoastal states.
That would be a disaster for the United States. America, with the most powerful Navy in the world and trade links that span the globe, needs full freedom of navigation in the world’s oceans. If we do not ratify the Law of the Sea, we will have a very hard time stopping that kind of change, and the longer we wait, the weaker our position will be. We should lock in the beneficial rules—the ones that we helped draft—now.
As it is the United States follows customary maritime law. But customary law can also change over time in ways we cannot control. If the world’s other coastal states such as China start claiming that U.S. military assets can’t transit their exclusive economic zones without permission, that practice could enter customary maritime law. Then the United States would have a hard time arguing that it was going to ignore customary maritime law and instead follow the terms of a treaty that it had never ratified.
The United States is not a party to the Law of the Sea Convention, but, ironically, we follow it in every respect because we believe it reflects “customary international law”—the law that has built up over the years based on what states actually do in the ocean. So when it comes to exclusive economic zones, the United States interprets the convention (and customary international law) to mean exactly what it says, which is that foreign ships have freedom of navigation in other countries’ exclusive economic zones.
China has a different—and hard to justify—interpretation of the convention. It asserts that it has jurisdiction over all foreign military activity in its exclusive economic zone. Unfortunately, in debates with China and others, the United States is forced to advance our arguments about these issues from a position of weakness. Our encounters with the Chinese on this subject go something like this:
Chinese official: Your Navy ships have no right to be in our exclusive economic zone without our permission.
American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides that other states have freedom of navigation in exclusive economic zones.
Chinese official: You are not a party to convention, so it doesn’t matter what it says—you have no standing to make that argument.
As you can see, our discussions get sidetracked from the real issues into our inexplicable nonparty status. If America ratified the convention, we’d be in a much stronger position to assert our rights and contest China’s anomalous position—that America needs China’s permission for our military assets to travel in, above, and below China’s (substantial) exclusive economic zone, up to 200 miles from its shores.
America has been pressing Beijing to join international frameworks of rules and norms to create a level, predictable playing field for all; to bring China into the work of tackling shared threats across the world; and to ensure that China’s rise supports rather than disrupts the global system that America and our allies created after World War II. These rules and norms support international trade and economic integration across the world and helped enable China’s astronomical economic growth in recent decades.
It’s true the People’s Republic of China has come a long way since its early days when it totally shunned the international community—and vice versa. Today China is deeply engaged in the international system on a number of levels. In international venues such as the United Nations, the International Monetary Fund, and the G-20, the Chinese show up, they are serious, and they often contribute constructively to policy questions.
Yet China still falls far short of its international commitments when it comes to World Trade Organization rules, international intellectual property standards, International Monetary Fund guidelines on its currency, and the U.N. Declaration on Human Rights, to name a few important areas.
The tables are turned on the Law of the Sea: Because of our failure to ratify the convention, the United States stands outside the international system that we champion. China, 161 other nations, and the European Union have all ratified the convention. The United States remains a “nonparty” to the convention, along with a handful of other nations, including some political pariahs such as Syria, North Korea, and Iran.
It is difficult for America to be a credible champion of rules and norms in the international system when we have not signed on to the international law that governs what can happen in the oceans that cover nearly three-fourths of the planet.
In addition, some columnists and think tank analysts have argued that U.S. accession to the Convention would interfere with the Proliferation Security Initiative (PSI), under which the United States and more than a dozen allies have agreed to interdict some ships that may present a nonproliferation risk. In fact, the Convention expands the list of justifications for ship interdictions set forth in its predecessor, the 1958 Convention on the High Seas, to which the United States has been a party for more than forty years. Among the many legal bases that may be applicable to interdictions under the PSI are the jurisdiction of coastal states in their territorial seas, the right to board stateless vessels, an agreement concerning high-seas boarding with a flag state (the country of origin of an oceangoing vessel) and the inherent right of self-defense. Indeed several allies have recently expressed concern about the U.S. failure to ratify the Convention, asserting that this failure could weaken the PSI.
Some columnists and think tank analysts have argued that U.S. accession to the Convention is unnecessary because excessive maritime claims can be addressed by invoking customary international law and with “operational assertions’’ by the U.S. military. But such an approach is less certain, more risky, and more costly than taking advantage of the Convention. Customary law is by nature subject to varying interpretations and change over time. Operational assertions—sending military ship and aircraft into contested areas—involve risk to naval personnel as well as political costs. Such assertions should be conducted aggressively where needed, but avoided where possible.
For example, the Obama Administration’s January 2014 Arctic strategy implementation plan lists six major national security objectives for the Arctic region. Only one of these objectives—“Promote International Law and Freedom of the Seas”—intersects with UNCLOS.10 Implementation Plan for The National Strategy for the Arctic Region . The White House: Washington, D.C., January 31, 2014 (32p). [ More (3 quotes) ] The implementation plan details the “next steps” for freedom of the seas in the Arctic.
None of these “next steps” would be measurably advanced by U.S. membership in UNCLOS. For instance, the United States conducts maritime exercises and operations on a global scale and has done so ever since it launched a blue-water navy. Next steps such as information sharing, relationship building, and strategic communications are not contingent on UNCLOS membership and may be accomplished through any number of bilateral and multilateral means, including the Arctic Council. The next steps listed in the implementation plan are important and should be pursued by the responsible executive departments, but none of them require U.S. membership in UNCLOS.