Evidence: Most Popular
Finally, there are numerous incentives for the United States to join the Convention and discontinue its exclusive reliance on customary international law.382 By becoming a member, the United States would be more credible when it invokes treaty provisions-for instance, when it is in a property "bilateral disagreement."383 As a member of UNCLOS, the United States would be able to vote for individuals that would in fact sit on the Law of the Sea Tribunal to ensure that interpretation of the Convention is favorable to U.S. policy.384 As it relates to the freedom of the high seas, the United States would be able to curtail certain proposals that would adversely affect U.S. military or navigational interests.385
The international community is on a fast track and is continuously changing directions. To maintain its economic dominance in the international community, the United States must join the Convention on the Law of the Sea.386 It is in the best economic, military, and environmental interests for the United States to join the Convention, and adherence to its guidelines would encourage others to join, resulting in more stability in the laws governing the ocean.
As a military superpower, the United States could heavily rely on regulations such as the UNCLOS III to provide for military defense such as navigation and overflight, military presence, and commercial advantages.372 There is a direct correlation between the economic interests of the United States and the security provided by UNCLOS III. In order for the United States to maintain its political and economic influence, it depends on the stability of the global market.  The stability found in the Convention is also crucial to the exploitation of marine scientific research in drilling and fishing industries.
The Convention on the Law of the Sea creates an interdependence of nations with obligations affecting all marine areas and activities.359 The effectiveness of the legal framework of this Convention truly depends upon its universal acceptance.360 Although the language of the Convention appears to obligate both parties and non-parties to the Convention, according to the Vienna Convention on the Law of Treaties, the Convention does not automatically create rights or obligations for third parties.361 However, the codification of the customary international law found in UNCLOS is applicable to the entire international community. This is because the Vienna Convention allows for third states to accept the rights and obligations offered under UNCLOS in accordance of Articles 35 and 36 of the Vienna Convention.362 While most of the Convention will be applicable as customary international law, the lack of universal acceptance of the Convention will leave the legal order of UNCLOS without its full effect rendering the institutions set by the Convention powerless.
U.S. navigation on the high seas is affected by its non-ratification of UNCLOS III. For example, if a U.S. naval task force had to rush from the Persian Gulf to a crisis along the North Korean peninsula, it could be forced to detour 3,000 miles around Indonesia.234 Another example is the barring of U.S. tankers from the Strait of Hormuz-the strait in which most American foreign oil is shipped-by Iran.235 Finally, Russia could institute fishing trawlers off the coast of Alaska that would take millions of tons of salmon found in American waters.236 None of these things would be possible if the United States ratifies UNCLOS III. UNCLOS III may aid the United States in ensuring that the naval ships and submarines can navigate freely along the high seas, that cargo ships and tankers may navigate along the world's sea lanes, and that the United States retains control over the resources found in the deep sea.237 As long as the United States remains a nonparty, it will not be able to rely on the protections provided by UNCLOS III.
The issue of innocent passage is raised by the concept of the territorial sea.207 In interpreting Article 21 of UNCLOS, some countries have adopted the view that they may, with due notice, create regulations and laws that restrict innocent passage through their territorial sea.208 The greatest restriction in these liberal navigation rules on innocent passage for the United States is the demand for prior notification and permission for the passage of a U.S. war vessel.209 The Convention recognizes the right of passage through the territorial seas, allowing for overflight and navigational freedom of the high seas.210 Currently, the lenient navigation rules include the immutable legal right for ships and aircrafts to travel the international straits without coastal states' interference.211 However, some UNCLOS III members may propose to amend the concept of freedom of navigation to allow the exclusion of vessels.212 As a member of UNCLOS III, the United States would be able to block such negative amendments.213 Further, if it joined UNCLOS, the United States could potentially prevent or decrease "the backsliding" by states that have previously abandoned their excessive maritime claims, yet wish to reinstitute those claims given that the United States is currently not a member.
There are many misconceptions as to what the signing of UNCLOS would mean for the United States and deep seabed mining. It is argued that by ratifying UNCLOS, including the Agreement, states will inevitably have to discontinue their unilateral attempts at deep seabed mining.133 However, this is unfounded as the law of the deep seabed was intentionally not settled in order to produce solid negotiations of the sort that resulted in UNCLOS.134 Most, if not all, of the potential deep seabed mining nations are dedicated to the adoption of UNCLOS and the Agreement.135 The potential deep seabed mining countries understand that there is a lack of economic viability in the present deep seabed mining industry, and "it is inconceivable that the necessary financial markets would support unilateral mining if it is contrary to the principles" of UNCLOS.
U.S. concerns about third-party dispute settlement were rarely voiced when the Convention was being negotiated. Indeed, the United States strongly supported third-party dispute settlement at the Third United Nations Conference on the Law of the Sea (UNCLOS III), the forum at which the Convention was negotiated during 1973-1982. U.S. negotiators regarded the dispute settlement provisions as important to achieving consensus at the negotiations and contributing to stability and predictability with respect to law of the sea disputes. According to Professor Louis B. Sohn, writing a third of a century ago during UNCLOS III, a
principal concern of the United States in the law of the sea negotiations is to provide procedures leading to a binding settlement of law of the sea disputes. Without such procedures it might be difficult to reach the final compromise needed to arrive at an overall solution of the issues before the Conference. The value of such a compromise would be greatly diminished if the parties to the treaty retained the right of unilateral interpretation, without any chance for an impartial adjudication. The purpose of the law of the sea negotiations is to achieve stability, certainty, and predictability, thus removing, or at least diminishing, the conflicts over law of the sea issues which otherwise might threaten the peace of the world. Only an effective method of dispute settlement can remove this danger.
Statements of U.S. officials and U.S. proposals at UNCLOS III emphasized the need for a comprehensive dispute settlement system that would apply with minimal exceptions to all parties and to all parts of the Convention.21 The binding third-party dispute settlement provisions should yield uniform interpretations of the Convention, with the United States favoring recourse to a permanent law of the sea tribunal to further that goal.22 Another U.S. objective was "to broaden the access to dispute settlement methods," opening some procedures to individuals and international organizations.23 The United States was one of the leading proponents of a comprehensive, binding third-party dispute settlement system at UNCLOS III that would lead to uniform interpretation and application of the Convention.
Furthermore, the United States has indicated that it may broadly construe the scope of the military activities exception. The U.S. State Department takes the position "that intelligence activities at sea are military activities for purposes of the U.S. dispute settlement exclusion under the Convention and thus the binding dispute settlement procedures would not apply to U.S. intelligence activities at sea."54 The Advice and Consent Resolution also includes an understanding providing that a U.S. military vessel's collection of "military survey data" is a "military activity."55 Hypothetical situations in which U.S. views concerning the scope of "military activities" might differ from the views of international judges or arbitrators are not difficult to imagine. For example, consider a case in which a coastal state challenged the collection in its EEZ of "military survey data" by a U.S. military vessel. Would an international tribunal accept the U.S. assertion that this data collection was a "military activity"? Or would the tribunal instead characterize a dispute over such data collection as one involving coastal state restrictions on the conduct of marine scientific research? Is military deployment of a listening or security device on a coastal state's continental shelf a "military activity" (likely the U.S. view), or would this deployment fall within the scope of the coastal state's control over installations on the continental shelf (under Article 60(1)(c) of the Convention)? The self- judging U.S. "military activities" condition in the Advice and Consent Resolution suggests that the United States desires to preserve its flexibility not to participate in certain third-party proceedings, and that the United States may well regard with great skepticism any attempt to proceed with a case that the United States deems to concern military activities. U.S. State Department and Department of Defense officials, along with military leaders, have stressed the importance ofthis "military activities" condition.