Evidence: Most Popular
Although some policy officials and scholars argue countries should abandon UNCLOS and implement a new legal regime,207 such action would undermine the effectiveness of the existing legal norms provided by UNCLOS. Abandoning UNCLOS would only weaken current international Arctic law, create economic uncertainty, and pose potential security issues.208 "Is it Time for the United States to Join the Law of the Sea Convention." Journal of Maritime Law and Commerce. Vol. 41, No. 2 (April 2010): 151-166. [ More (9 quotes) ] In addition, the formulation, adoption, and implementation of new international Arctic legislation would, at best, be a difficult, if not impossible, process.209 Considering the enormous economic wealth at stake, coupled with the political power of today's oil, abandoning UNCLOS might erroneously be interpreted by some as encouraging military solutions to Arctic territorial disputes.
- Preventing wars is as important as winning wars.
- U.S. maritime power comprises six core capabilities that emphasize preventing war and building partnerships: deterrence, sea control, power projection, maritime security, humanitarian assistance, and disaster response.
- Expanded cooperative relationships with other nations will contrib- ute to the security and stability of the maritime domain to the benefit of all.
- Trust and confidence cannot be surged; they must be built over time while mutual understanding and respect are promoted.
- Global maritime partnerships provide a cooperative approach to maritime security, promoting the rule of law by countering piracy, terrorism, weapons proliferation, drug trafficking, and other illicit activities.
To date, U.S. military forces have successfully protected American shipping and the homeland from sea-based attack without the benefits of the convention. Why is it imperative to join the convention now? What does the convention provide that distinguishes it from existing treaties and the customary international law upon which the United States has depended for the past five decades?
In short, the convention provides the protection of binding international law in four categories of essential navigation and overflight rights. Together, these rights ensure the strategic and operational mobility of U.S. military forces and the free flow of international commerce at sea. Joining the convention guarantees that 156 states recognize the following basic rights of U.S. military forces, commercial ships, civilian aircraft, and the foreign-flagged vessels that carry commerce vital to U.S. economic security:
- Right of Innocent Passage. The surface transit of any ship or submarine through the territorial seas of foreign nations without prior notification or permission.
- Right of Transit Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over straits used for international navigation, and the approaches to those straits.
- Right of Archipelagic Sealanes Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over all normal passage routes used for international navigation of “archipelagic waters,” such as those claimed by the Philippines and Indonesia.
- Freedom of the High Seas. The freedoms of navigation, overflight, and use of the seabed for laying undersea cables or pipes on the high seas and within the exclusive economic zone of a coastal state.
For most U.S. observers, however, U.S. participation in Convention institutions and meetings of States Parties can help shape the future direction of the law of the sea in ways favorable to U.S. commercial, fishing, environmental, and military interests. The law of the sea will inevitably change through a wide variety of mechanisms. Some proposals for change could be made from "within" the Convention system-perhaps by formal amendments,63 or even potentially at meetings of States Parties.64 America's taking its place as a State Party to the Convention can help promote U.S. views. For example, its participation in the work of the ISA can help assure that the Authority does not attempt to stretch its mandate to impinge on what many assert to be the freedom to harvest deep-sea-vent living organisms, which are important resources in biotechnology.65 As a State Party, the U.S. would also have more leverage with respect to the Article 311 obligation that subsequent agreements between States Parties be compatible with the66 Convention.
The ISA, the institutional component that led the Reagan administration not to support the Convention in 1982, has remained a obstacle for a few vocal critics of the Convention in America. Although the ISA is the only new body created by the Convention that is explicitly authorized to make policy, its mandate is narrow, related to steps furthering security of tenure for those seeking to explore for minerals or mine on the seabed beyond the limits of national jurisdiction. The Part XI Implementation Agreement, which is now read together with the Convention to govern the ISA's operations, rectified all of the Reagan administration's objections to the original Part XI (the administration's only objections to the Convention). The objectionable provisions related to an asserted lack of guaranteed access for qualified private miners, the possibility of payments to national liberation movements, mandatory technology transfers, production limita- tions, and a review conference that could amend Part XI over the objection of the U.S. or other states. The George W. Bush administration has emphasized the 1994 changes with respect to these provisions. It has also emphasized 1994 changes concerning the U.S. role in how the ISA makes its decisions, changes that give the U.S. an effective veto over ISA decisions. Since its inception, the ISA has operated on a low budget and has confined its activities to its specified mandate, behavior that should reassure skeptics who fear an expensive, bloated international bureaucracy.
Several more forceful responses to the critics of the Convention's obligatory dispute settlement provisions are in order. First, the U.S. has already accepted the Convention's dispute settlement system with respect to certain significant categories of disputes (by ratifying the 1995 Fish Stocks Agreement, which incorporates the Convention's dispute settlement provisions).54 Second, one can make a strong case that third-party dispute settlement has led to decisions that strengthen the Convention's rules and will lead to many more. For example, in its merits decision in the Saiga case, the ITLOS reinforced the concept of the EEZ as a zone of limited coastal state jurisdiction, which extends neither to customs matters nor generally to all matters affecting a coastal state's "public interest."55 Third, the U.S. itself might find the Convention's dispute settlement system useful. For instance, arbitration could be threatened or pursued in order to oppose and publicly expose other states' illegal straight baseline claims.56 The Convention's dispute settlement provisions can help prevent the compromises embodied in the Convention from unraveling.
Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.36 This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.37 Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Commit- tee, "some coastal states contend that the navigational and over- flight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it."38 if it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program39 or negotiating new bilateral agreements.40 The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.
Freedom of navigation is the main reason why the George W. Bush administration announced its support for U.S. accession shortly after the 9/11 attacks in 2001.30 The administration likely finds that the Convention's navigational and national security benefits far outweigh any costs to the U.S. joining the Convention. Military security relates to self-defense, which the Convention pre- serves,31 and to port security, which the Convention facilitates by incorporating security requirements developed through the Inter- national Maritime Organization.32 The Convention also assures rights of navigation and overflight, including transit passage through strategic straits and archipelagic sea lanes passage,33 as well as the immunity of warships.34 The U.S. insisted on strengthening rights of navigation and overflight during the Third United Nations Conference on the Law of the Sea Conference (UNCLOS III), and in making them more objective with what appears in the 1958 Territorial Sea Convention.