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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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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) ]

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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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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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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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 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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China views coming resource struggle in Arctic as possibly leading to military conflict

Popular glossy military magazines in China often beat the war drums about the likeli- hood of conflict breaking out in the Arctic. An article in the November 2010 issue of Dangdai haijun is a typical example:

According to the “United Nations Convention on the Law of the Sea” currently in effect, the Arctic does not belong to any country. In addition to the five circum-Arctic countries Russia, the United States, Canada, Denmark, and Norway, many [other] countries have proclaimed partial sovereignty over the Arctic. At present there is no Arctic country which has clearly proven that its continental shelf extends into the Arctic, and because of this the Arctic is regarded as an “international area” and is supervised and managed by the Inter- national Seabed Authority. Some countries are contending for Arctic sovereignty, and this is tantamount to infringing upon the interests of the other countries of the world. In facing this real and quite unpredictable “scramble and battle for the Arctic” and the probability of some countries dividing up the [Arctic] melon with the aid of geographical advantage and military might, if peaceful means cannot produce the anticipated effects, war becomes the only method for resolving the issue. Based on this, it is not difficult for us to imagine that the probability of the future outbreak of war in the Arctic is very high, and that as soon as war breaks out, the United States, Russia, and Canada will be its main principals.

In Canada, more benign and rational assessments of potential trouble in the Arctic usually (but not always) prevail; there may be tension and friction in the Arctic in the future, but by and large Canadian commentators on Arctic affairs do not usually see conflict as a distinct possibility. The conclusions of Kyle D. Christensen of Canada’s National Defence Headquarters are typical: “There exists in China a distinct group of academics and officials trying to influence leaders to adopt a much more assertive stance in the Arctic than has traditionally been the case. This could ultimately bring China into disagreement with circumpolar states in a variety of issue areas, and alter security an sovereignty relationships in the circumpolar region.”

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Curtis, David Wright. The Dragon Eyes the Top of the World: Arctic Policy Debate and Discussion in China . China Maritime Studies Institute, U.S. Naval War College: Newport, RI, August 2011 (45p). [ More (7 quotes) ]

China views US non signatory status to UNCLOS as a liability it can exploit to gain access to Arctic resources

The 2009 article that started the series on Arctic issues in the Journal of the Ocean Uni- versity of China, “Research on the Issue of Arctic Environmental Law from the Point of View of International Law,” by Liu Huirong and Yang Fan of Ocean University’s School of Law and Political Science, is from start to finish an examination of environmental and legal issues pertaining to the Arctic.26 It contains no substantial discussion of specifically Chinese interests in the Arctic and does not regard or treat Arctic environmental issues as representing a legal or diplomatic back door through which China could enter the Arctic and then throw its weight around geopolitically. Liu and Yang bemoan the present lack of a comprehensive international Arctic treaty, and consider extensively the reasons for the “fragmentation of international law” as it pertains to the Arctic environment. They also discuss at some length the contradictions among various treaties and instruments of environmental law, as well as between na- tional and international law. They then give suggestions for resolving these conflicts.27 In their conclusion they express optimism about UNCLOS as the best means for balancing international interests, characterizing the U.S. refusal to accede to the convention as an American liability:

Looking far and wide at the legal documents which can resolve disputes related to the Arctic and how each state implements them, [it is our opinion that] UNCLOS is the most effective path for balancing the rights and interests among each of the signatory Arctic states. In the present disputes, with the exception of the United States, all other countries have already ratified UNCLOS. As a nonsignatory state to UNCLOS, in the midst of the disputes over resources which are growing fiercer by the day, the United States is meet- ing up with risks and hazards [regarding access to] the rich resources of several thousand square kilometers of continental shelf. The position of the U.S. as a nonsignatory state in reality impedes its protection of its maritime interests. To protect their rights and interests in the Arctic region, every state has started paying serious attention to UNCLOS and hopes to find in it the legal basis for supporting its positions, this in order to win advantageous positions in international court decisions and obtain the recognition of international society.

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China has a substantial and committed effort to assert its influence over future of Arctic region

American policy makers should be aware that China’s recent interest in Arctic affairs is not an evanescent fancy or a passing political fad but a serious, new, incipient policy direction. China is taking concrete diplomatic steps to ensure that it becomes a player in the Arctic game and eventually will have what it regards as its fair share of access to Arctic resources and sea routes. China has already committed substantial human, institutional, and naval resources to its Arctic interests and will continue to do so, likely at an accelerated rate, in the future. The Polar Research Institute of China (Zhongguo Jidi Yanjiu Zhongxin), with a staff of 124 people headquartered in Shanghai, supervises three Chinese research stations in the Antarctic and one in the Arctic. It also manages the Chinese icebreaker Xuelong (Snow Dragon), a light, Ukraine-built, nonnuclear vessel with a displacement of twenty-one thousand tons, used in both Arctic and Antarctic scientific expeditions.96 Xuelong, the largest conventionally powered icebreaker in the world, reached eighty-eight degrees north latitude in August 2010, and its helicopter took Chinese Arctic researchers to the North Pole on 20 August 2010, a Chinese first. The Arctic and Antarctic Administration (Guojia Haiyangju Jidi Kaocha Bangongshi), under the State Oceanic Administration, also manages Chinese scientific research activity in the Arctic.97 China currently plans to build its own smaller (eight thousand tons displacement) sister icebreaker to Xuelong, at a cost of U.S.$300 million, and to have it operational by 2013. “Between the two ships,” the New York Times observed in May 2010, “China will have larger and more modern icebreakers than either the United States or Canada.”98 Russia, for its part, has over a dozen heavy icebreakers, seven of them nuclear powered.

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US policy makers should not underestimate Chinas potential interests or influence in the Arctic region

The United States should neither underestimate China’s burgeoning interests in the Arctic region nor allow itself to be outdone by China. The Chinese have become acute observers of the region. According Dr. Robert Huebert, an internationally renowned Canadian expert on the Arctic at the University of Calgary, China has shown itself to be a quick study in Arctic affairs and has been doing a lot of very good homework on the region.108 The government of the United States should pay close attention to China’s engagement in Arctic affairs and consider its possible security implications, especially since the U.S. Navy in late 2009 observed that increasing economic and scientific activi- ties in the Arctic are “potential sources of competition and conflict for access and natural resources.”

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