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In theory, the 1982 UNCLOS Treaty leveled the playing field and created an unambiguous set of rules for all countries to abide by. While the convention represents a major step forward in codifying many of the historical practices that had evolved into international law and crafted practical guidelines designed to promote equitable commerce, the contemporary practice does not yet mirror the theory.
China’s national defense policy declares, “China . . . defends and administers its land borders and seas under its jurisdiction, safeguards the country’s territorial sovereignty and maritime rights and interests, and secures both its lands and sea borders strictly in accordance with treaties and agreements it has signed with neighboring countries, and the United Nations Convention on Law of the Sea.”12 In reality, however, Chinese practice with regard to innocent passage, exclusive economic zones, and sovereignty claims over what China calls “Historic Waters” is largely inconsistent with UNCLOS.
However, as a non-Party to UNCLOS, the United States lacks standing to challenge other nations’ excessive claims in the Arctic citing the provisions of the Convention. The same is true in other regions of the world. China, for example, continues to pursue an aggressive posture in the South China Sea and routinely criticizes the United States for not being a Party to UNCLOS—“the U.S. insists that China must base its [South China Sea] claims solely on the 1982 UNCLOS although the U.S. itself has not ratified it.”60 Similarly, when Iran signed UNCLOS in 1982, it filed a declaration indicating, inter alia, that “only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein, [including] the right of Transit passage through straits used for internation- al navigation.”61 Thus, Iran argues that the United States does not enjoy a right of transit passage through the Strait of Hormuz because that right is contractual in nature. Joining the Convention would put the United States on solid legal ground to conclusively “put to bed” these assertions.
The United States has historically been the world leader in protecting the common interest in navigational freedom and the rule of the law in the oceans. However, America has temporarily lost that leadership by its continued non-adherence to UNCLOS. U.S. accession to the Convention will restore that role and advance U.S. leadership in Arctic Ocean issues.
Joining UNCLOS will put the United States on an even footing with the other Arctic nations, as America assumes the chairmanship of the Arctic Council from Canada in 2015. All of the Council’s member States (except the United States) and its 12 observer States are parties to the Convention. Moreover, in 2008, the five Arctic coastal States (Canada, Denmark, Russia, Norway and the United States) declared at Ilulissat that the law of the sea, as reflected in UNCLOS, is the legal framework that governs the Arctic Ocean, and there is no need for a new legal regime to govern the Arctic Ocean.53 Therefore, U.S. participation in the Arctic Council recognizes UNCLOS as the governing framework in the Arctic
U.S. freedom of navigation interests in the Arctic would be bolstered by joining UNCLOS. Both Russia and Canada have maritime claims in the Arctic that are inconsistent with the rules contained in the Convention. Russia37 and Canada38 draw excessive straight baselines in the Arctic and restrict the right of transit passage in various international straits in the Arctic, including the Northeast Passage, the Northwest Passage and vari- ous straits located within Russia’s Northern Sea Route (NSR)—the Demitri, Laptev and Sannikov Straits. Russia’s straight baselines closing the NSR straits and Canada’s straight baselines around its Arctic Islands do not meet the legal criteria contained in Article 7 of the Convention.39 According to UNCLOS Article 5, the correct baseline for these areas is the low-water line. UNCLOS Article 38 also provides that the right of transit pas- sage through international straits cannot be suspended or impeded by the bordering States. Use of straight baselines by Russia and Canada to close these international straits is therefore inconsistent with the Convention. Furthermore, under UNCLOS Article 8(2), all nations enjoy at least the right of innocent passage in areas within newly drawn straight baselines. The United States has diplomatically protested and operationally challenged these excessive straight baseline claims under the U.S. Freedom of Navigation Program, citing the provisions of UNCLOS and customary international law.40 However, the U.S. legal position would be on better footing if the United States was a party to the Convention.
In May 2013, five Asian nations—including China—were granted ob- server status in the Arctic Council, and China has stated it does not intend to be a “wallflower” in the forum.33 Beijing has expressed an interest in developing new shipping routes through the Arctic that will connect China with its largest export market—the European Union. To that end, in August 2013, a Chinese merchant vessel loaded with heavy equipment and steel set sail from Dalian en route to Rotterdam via the Arctic’s Northern Sea Route (NSR).34 China has also expressed an interest in developing Arc- tic resources. In March 2010, Rear Admiral Yin Zhou of the People’s Liberation Army Navy stated at the Eleventh Chinese People’s Political Consultative Conference that “under . . . UNCLOS, the Arctic does not belong to any particular nation and is rather the property of all the world’s people” and that “China must play an indispensable role in Arctic exploration as it has one-fifth of the world’s population.”35 Officials from the State Oceanic Administration have similarly indicated that China is a “near Arctic state” and that the Arctic is an “inherited wealth for all humankind.”36 As a party to UNCLOS, the United States could claim an ECS in the Arctic and forestall any encroachment of U.S. ocean resources by China or any other nation.
One commercial navigation voice raised during the committee hearings was that of the Chamber of Shipping of America (CSA), an association of U.S. vessel owners and op- erators of U.S. and foreign-flag ships. CSA president Joseph Cox made the case for accession based on environmental and freedom of navigation principles. Remaining outside the Convention, cautioned Cox, put U.S.-based shipping interests in jeopardy of being burdened by coastal state regulations that have been “stretching the interpretations of the law of the sea into unrecognizable forms.”69"Statement of Joseph C. Cox: Hearing on the Law of the Sea Convention (October 4, 2007) ." Testimony before the Senate Foreign Relations Committee, October 4, 2007. [ More (2 quotes) ] Cox referred specifically to recent actions taken off the coast of western Europe. He derided the forcible removal of the Prestige in 2002 from the exclusive economic zone of Spain when it developed a hull fracture and sought entry into safe waters.70"Statement of Joseph C. Cox: Hearing on the Law of the Sea Convention (October 4, 2007) ." Testimony before the Senate Foreign Relations Committee, October 4, 2007. [ More (2 quotes) ] Cox also criticized a recent designation of a large expanse of ocean stretching from the “upper reaches of the English Channel to the Straits of Gilbraltar [as] a particularly sensitive sea area [(PSSA)].”71"Statement of Joseph C. Cox: Hearing on the Law of the Sea Convention (October 4, 2007) ." Testimony before the Senate Foreign Relations Committee, October 4, 2007. [ More (2 quotes) ] While coastal states may designate PSSAs pursuant to International Maritime Organization principles, acknowledged Cox, he contended the designation in this instance was unsubstantiated.
Assistant Secretary of State John F. Turner cited the urgency for accession at the outset of his testimony: “there are important reasons for the United States to become a party to this Convention and to do so now.”67 Not surprisingly, the State Department highlighted accession as a means of maintaining U.S. leadership in global matters; contributing to the ongoing evolution of international law-making; and supporting peaceful methods of international dispute resolution. In an effort to perhaps illustrate the dwindling opportunity to portray the United States as being at the forefront, Turner explained, “as of today, 143 parties, including most of our major allies, have joined the Convention. It is time for us to take the opportunity to demonstrate U.S. leadership on ocean issues by becoming a party to the Law of the Sea Convention.”68
From the homeland security perspective, “public order of the oceans is best established and maintained by a stable, universally accepted law of the sea treaty reflective of U.S. national interest.”62 This testimony also alluded to the importance of being part of a global law-of-the-sea rule-making process. The Convention’s navigation freedoms and protections, noted the Department of Homeland Security’s representative, “allow the use of the world’s oceans to meet changing national security requirements,” suggesting that a non–state party would be at a disadvantage in fashioning what might be considered new ocean-borne security efforts.63
Another significant benefit in becoming a state party to the Treaty, noted the Homeland Security Department, would be the enhanced “ability to conduct interdiction operations and to refute excessive maritime claims.”64 Some U.S. efforts in the past had been questioned by states contending that certain treaty-based rights were not reflections of customary law. The Department also cited Convention Article 108 (requiring interna- tional cooperation in the suppression of illegal drugs) as a means by which the United States could hasten the implementation of the United Nations Convention against Illicit Traffic In Narcotic Drugs and Psychotic Substances.65 Finally, the Department support for accession highlighted the wide-ranging responsibilities charged to one of its core functional components, the United States Coast Guard. Accession, noted the statement, would augment the Coast Guard’s ability to prevent, reduce, and control maritime pollution; purge U.S. waters of substandard ships; and preserve high seas fisheries.66
As already noted, Donald Rumsfeld played a key role in stopping the United States and other nations’ treaty ratification efforts in the 1980s. It is a compelling point, therefore, to note that Secretary Rumsfeld’s Defense Department urged Treaty accession in 2003. On October 21, 2003, a deputy assistant secretary of defense testified that the Convention is “critical to the United States Armed Forces.”53 The basis for Defense Depart- ment accession support was based in part on navigation rights deemed “critical to mili- tary operations” and “essential to the formulation and implementation of [U.S.] national security strategy.”54 While some have contended that these and other law of the sea rights could be exercised employing the “reflection” approach, the Defense Department identified certain additional benefits that would come only with accession, includ- ing participation in international maritime fora and Convention-established entities.55 Participation, noted the Defense Department representative, would allow the United States to “prevent the erosion of navigational rights and freedoms . . . [and work toward] international consensus proscribing the maritime trafficking of weapons of mass destruc- tion.”56 While recommending Treaty accession, the Defense Department did identify a number of issues that it deemed worthy of Senate attention, and one of these will be noted here.
U.S. courts, too, rely upon the 1982 Convention, not as an applicable governing document itself, but rather as the mirror that reflects customary international law. As early as 1994, U.S. federal appeals courts began citing the Convention as a device that reflected international law of the sea principles even though the Convention itself did not apply to the United States. Less than three weeks after the Convention entered into force in 1994 (for signatory/ratifying nations, but not for the United States) the Ninth Circuit Court of Appeals relied, in part, upon the “continuous and expeditious” clause of the Convention’s innocent passage definition to resolve a dispute regarding mooring laws off the coast of Hawaii.40 Two years later the First Circuit cited several of the Convention’s exclusive economic zone principles as applicable insofar as those principles were alluded to in U.S. Presidential Proclamations.41
In 1999, the First Circuit Court of Appeals referred to the applicability of certain provisions of the 1982 Convention, noting that while “[t]he Convention has been signed by the President, . . . it has not yet been ratified by the Senate. Consequently, we refer to UNCLOS only to the extent that it incorporates customary international law.”42 That same year, the Fourth Circuit cited provisions of the 1982 Convention regarding salvage law and high seas freedoms as binding, not as treaty law but as well-established customary law.43