Evidence: Most Popular
The United States should accede to UNCLOS. This would be difficult currently, because a small but obstreperous group of senators is holding up accession, a regrettable and un- fortunate situation since the United States can ill afford to be marginalized or hampered and hobbled in Arctic affairs while other A5 states busily prepare extended-continental- shelf territorial claims. These senators should rethink their positions in light of China’s recent and developing engagement in Arctic affairs and note that at least two Chinese commentators have concluded that continual American nonaccession will be detrimental to U.S. interests.115
As well, an American naval analyst has recently observed that “the failure of the United States to accede to UNCLOS gives China unchallenged diplomatic space to attempt to shape law of the sea in its favor.”
Ironically, the United States is currently preparing its own extended-continental-shelf claims in the Arctic even though it is not party to UNCLOS, which provides the mechanism for submitting such claims. American legal rationale and liabilities pertaining to this are published on the Extended Continental Shelf Project website of the U.S. government:
The United States is the only Arctic country, and indeed one of the few countries in the world, that has not yet ratified the LOS Convention. A non-party country has the same rights in its extended continental shelf as a country that has ratified the Convention, but without ratifying, the U.S. cannot submit its scientific findings to the CLCS, which means the U.S. will not have the opportunity to receive their recommendations and set ECS [extended continental shelf] limits based on them. There is an [sic] benefit to considering these recommendations: according to the LOS Convention, if a coastal country establishes its ECS limits “on the basis of” CLCS recommendations, those limits are “final and binding.”117
Accession to UNCLOS is the common recommendation of both the former George W. Bush and current Barack Obama administrations and is supported by a strong alliance of American military, environmental, shipping, energy, and other interests. In its recently issued “U.S. Navy Arctic Roadmap,” the U.S. Navy itself urges UNCLOS accession.118 Nowhere is the rationale for accession better spelled out than in the most recent statement of American Arctic policy, issued during the final days of the Bush administration:
The Senate should act favorably on U.S. accession to the U.N. Convention on the Law of the Sea promptly, to protect and advance U.S. interests, including with respect to the Arctic. Joining will serve the national security interests of the United States, including the maritime mobility of our Armed Forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.119
Prudence and realism dictate that foreign policy plan and hope for the best but prepare for the worst. China is quite aware that its “size and rise to power status evoke jitters,” and according to Linda Jakobson, Beijing has decided, for the time being at least, to “advocate cautious Arctic policies for fear of causing alarm and provoking countermea- sures among the Arctic states.”132 But this reticence and restraint on China’s part will not likely last indefinitely. China is very heavily dependent on international shipping (energy imports and finished goods exports) for its economic, social, and political stability;133 if and when the Arctic proves to be truly valuable for its natural resources and sea routes, Beijing will likely become much more assertive. The United States should be prepared for the possibility that Beijing could someday conclude that developments or situations in the Arctic threaten China’s economic prosperity, and thus Chinese social stability and ultimately the political power of the Communist Party of China. At a minimum it is in the interest of the United States and the other A5 NATO democracies to maintain defen- sive capabilities for safeguarding the security of the Arctic region.
We will stabilize the outer permissible limit of the territorial sea of other nations at 12 nautical miles." We will gain the leverage to combat effectively excessive territorial sea claims and other excessive claims. At present, there are over a hundred excessive claims throughout the world.' These are notjust rogue states making these claims. Many, including those pertaining to the continental shelf, are from friendly nations or nations with whom we need principled, cooperative relationships. Our status as a nonparty to the Law of the Sea Convention hobbles our efforts to address these claims in an effective manner.
Specifically, I point out the counternarcotics area. There are excessive territorial sea claims that cause significant operational impediments for us on a daily basis. Our status as a nonparty makes it difficult for us to achieve effective operational agreements with those nations that have claims of territorial seas of up to two hundred nautical miles.
As we come closer to the time when amendments to the Convention are contemplated, it is absolutely essential that we have a voice in that process. One of the basic principles I try to engrain in my officers is the idea that in any negotiation, the first person to get his ideas down in writing or, as we say, the first person to get the chalkboard, has a tremendous advantage. One forces others to work from one's own text and ideas. It is important to set the baseline and make others fight away from it. Well, I can say that I do not know how we can be first to the chalkboard if we do not even have a seat at the debate when these amendments come up, if they come up. In our current status as a nonparty, we will not be in the room. We will not have a seat, much less a voice. Even decades ago, I do not think that this would have been an acceptable position for the United States, given our historic reliance on global and maritime commerce. Today, it is completely unacceptable. Ostriches, as they say, may bury their heads in the sand, but they are on land; they are not dependent upon water in a global maritime regime. On the other hand, if we try to bury our head and go it alone in our modern global maritime climate, we will drown.
PSI is explicitly based on, and requires partner nations to act consistently with, national legal authorities and relevant international law frameworks."* That is the heart of PSI. It allows us to bring together a whole host of partners, authorities, and jurisdictions to work cooperatively. Virtually all of our partners in PSI are parties to the Law of the Sea Convention. Clearly, they see no conflict.
Far from impeding PSI, if we accede to the Law of the Sea Convention, it will help our PSI efforts. It will remove the invalid, incorrect, bogus argument that PSI is a renegade regime that flies in the face of international law." The result, if we accede, is that there will be more partners, more intelligence, and more preemptive actions that will help to protect us from serious and significant threats.
The United States has considerable power to determine how accession to Convention would affect its national interests. This is primarily a function of the many years of negotiations getting the treaty to its 1994 form. More recent specific guidance provided by the U.S. Senate Foreign Relations Committee on conditions for U.S. accession to the treaty are laid out in a lengthy resolution identifying very specific declarations, understandings, and conditions that ensure protection of U.S. interests.10 The conditions address a wide array of issues including representation on treaty decision-making bodies, ability to enforce U.S. environmental law, and rights to free navigation, as well as harmonization of the treaty with specific aspects of U.S. law. A particular concern to many in the United States is the specter of foreign courts making decisions about navigation and resource protection activities that ultimately affect U.S. interests. This concern could be said to be overstated for three reasons. First, accession to the Convention will allow the U.S. to have a say in the election of members of the Tribunal and to select members of arbitration panels making decisions. Second, and more important, is the fact that the U.S., as part of its accession (or any time thereafter), has the legal right to request the type of body it wants decisions concerning U.S. interests to be made by. The choices the United States would have include:
- A hearing before the International Tribunal for the Law of the Sea (ITLOS), a standing tribunal of 21 judges, each from a different nation, that serve nine year terms. The earliest the U.S. could get a seated judge would be in late 2008, when seven seats open.
- A hearing before the International Court of Justice (ICJ), a UN court of 15 judges appointed by the General Assembly and Security Council. The U.S. currently has one sitting judge.
- A special arbitral tribunal under “Annex VIII” made up of environmental, marine science, navigation and fisheries experts of which the U.S. would pick two of the five arbitrators.
- A hearing before an “Annex VII” arbitration panel composed of five members of which the U.S. would be allowed to choose one and be involved in the appointment of at least three others.
The U.S. has already indicated its decision to adjudicate conflicts under the last two options, using the third option for fisheries, environmental and navigational disputes, and the fourth option for other disputes, meaning that all decisions concerning U.S. interests would go to a small arbitral body whose members are selected with U.S. input. Finally, nations may opt out of any of the above adjudication procedures when the issue debated concerns such issues as scientific research, boundary disputes, military activities and setting of limits in natural resource extraction within a nation’s EEZ.
The activity related to Arctic claims suggests an urgency for U.S. accession to the Convention. This urgency is driven both by what the United States can do and what it can undo as a party to the Convention. While we currently can comment on proposals by other Convention nations9, accession to the treaty would give the United States standing to substantially modify or block proposals that the U.S. found detrimental to its national interests. This could be done by preparing its own claim to the Continental Shelf Commission, or by working cooperatively with other Arctic nations to develop logical rules to govern exploitation of resources and other uses of the Arctic Sea. This latter strategy reflects one of the biggest benefits of U.S. accession to the Convention-namely that it would generate goodwill and a sense of cooperation over a shared mission to responsibly use the resources of the sea while protecting the oceanic environment for generations to come.
The Convention provides institutional methods through which the other Arctic States are able to protect their rights under UNCLOS, which may well come at the expense of American interests. Instrumental bodies such as the ISA's executive body, the Council, will assume a highly influential role in the Arctic. In particular, the Council is responsible for promulgating the policies that would apply to Arctic mining. n335 The ability of the U.S. to play a part in the Arctic and protect against potentially inimical mining policies require participation in the Authority, and in the decisionmaking Council in particular. n336 The CLCS presents a similar problem. The CLCS process is kept secret, and only Member States may appoint commissioners to [*241] take part in the decision and review the data submitted by other countries. n337 Acceptance or rejection of a shelf proposal is final, and such a crucial decision may well depend on a variety of subjective factors, such as "the knowledge, the experience, and occasionally the bias of the scientist involved." Without an American commissioner, the U.S. cannot evaluate the content or feasibility of continental shelf submissions set to be filed by the other Arctic States. The element of time also adds to the sense of urgency, since a State must wait ten years from the date of ratification before submitting a continental shelf claim to the CLCS.
Further, UNCLOS does not allow any reservations to the treaty other than those explicitly provided for when acceding to the Convention. n341 It is possible to amend the Convention, but only as a full Member State. n342 UNCLOS established a ten year prohibition on amending the Convention subsequent to its entry into force. n343 Since UNCLOS entered into force in 1994, a year after the date of the sixtieth ratification, n344 this moratorium expired on November 16, 2004. n345 Accordingly, only Canada, Denmark, Norway, and Russia currently are able to proffer amendments to UNCLOS regarding Arctic mining. But should any such amendment be ratified before America accedes to the Convention, the U.S. would not be able to avoid its application when signing. The Senate's recalcitrance is based largely on a fear that the U.S. would be unable to play a dominant role within the Convention. Yet by refusing to ratify UNCLOS, the U.S. stands as one voice against the force of the entire Convention within the Arctic. Should [*242] the United States persist in its refusal to ratify UNCLOS, it will find itself in the same or weaker position if and when the CLCS recognizes the sovereign claims of other Arctic States that permit the exploitation of the pole's wealth. Indeed, regardless of American involvement, UNCLOS has established "a de facto regime governing the deep seabed, and U.S. interests are better served by active participation in the UNCLOS regime than by sitting on the sidelines."