Evidence: Recently Added
Other states have also recognized the Convention’s positive legal force—most recently Japan, India, and Mexico at the UN General Assembly’s Sixth Committee (Legal).135 Those nations credited the Convention with operating as a fundamental document for advancing the “rule of law” throughout the world. Most coastal states, in fact, have adjusted their maritime claims to be in conformity with the Convention. For example, 144 States claim a terri- torial sea of 12 nm or less, in accordance with Article 3 of the Convention.136 Throughout the globe, many countries have areas within their law or state practice that are noncompliant, but “state practice complies largely” with the Law of the Sea as reflected in the Convention.137 Even in these instances, however, diplomacy operates within the context of the rules reflected in the Convention.
At a recent meeting of the Non-Aligned States in Cuba, for example, member states reaffirmed their support for applying the principles set forth in the Convention to the maritime territorial disputes in the East China Seas. In a more specific example, in December 2003, Syria adopted a new maritime law that rescinded its previous 35-nautical mile (nm) territorial sea, establishing a 12- nm territorial sea in conformity with the Convention.126 At the same time, Syria rolled back a 41-nm contiguous zone claim to a 24-nm contiguous zone127 and adopted a 200-nm EEZ,128 with these changes placing Syria in compliance with Convention in most respects. These provisions mark an improvement over previous Syrian government positions in relation to maritime claims, although Syria still has some work to do to modify other excessive coastal state claims and enter into complete compliance with international law.
In light of a global climate crisis and the escalating battle over the valuable resources below the North Pole, Congress should make ratification of UNCLOS one of its top priorities. Until the United States is a treaty member, it cannot enjoy voting privileges on the influential ISA (on which it would be granted a permanent seat) nor submit claims to the CLCS to gain legal rights to the resources in the North Pole‘s seabed. The concerns that influenced President Reagan not to sign the treaty in 1982 have largely disappeared, and the remaining concerns are easily refuted. U.S. ratification of UNCLOS makes sense not just for economic, national security, and environmental reasons, but also to enhance the diplomatic standing of the United States. Accession to UNCLOS now would be a powerful and meaningful gesture on behalf of the United States, symbolizing a recommitment to global cooperation.
Though the United States lacks the ability to submit claims to enlarge its coastal territory until it ratifies UNCLOS, some commentators stress that because of the length of the ISA and CLCS review process, the United States might not be out of the running for these Arctic treasures quite yet.120 In the meantime, however, the UNCLOS member nations of Canada, Denmark, Finland, Iceland, Norway, Sweden, and Russia are all currently competing for these valuable overlapping rights.121 While these countries may begin evaluation by the ISA of their claims at any time, the United States continues to have its hands tied—unable to use the ISA procedure (the only treaty-sanctioned procedure) until it ratifies UNCLOS.
Though national security remains a top U.S. priority, opponents of UNCLOS have overstated the degree to which the treaty would endanger that security. First, major concerns appear to stem from a misreading of articles 19 and 20.81 Additionally, the provisions at issue were negotiated with the input and consent of the U.S. intelligence community (including the National Security Council) and were approved by the Central Intelligence Agency and the Department of Defense.82 In fact, some of the strongest supporters of the treaty come from the intelligence community and the highest ranks of the U.S. military.83 As for the reliance upon customary international law to ensure permission for navigation by U.S. vessels, some commentators see this as a risky and costly alternative to ratification.84
Fundamental differences on environmental policy have also been raised as objections to UNCLOS. Opponents see UNCLOS as a 'back door' for environmental activists to circumvent the U.S. Congress on international environmental law.70 Alternatively, accession might encourage foreign governments to bring action against the United States for environmental transgressions under the treaty‘s mandatory dispute resolution protocol.71
Use of the outlined dispute resolution process against the United States seems unlikely, though, since the United States already complies with or exceeds the environmental standards set out in UNCLOS.72 Further, provisions meant to protect the sustainability of the world‘s oceans are of global concern73 and benefit U.S. ocean-based industries.74 Even while it complies with the substance of the environmental provisions, the United States may be seen as a block to global environmental action until it actually ratifies UNCLOS.75
Opponents of UNCLOS claim that accession will also harm U.S. commercial interests in the world‘s oceans. The provisions on seabed mining, in particular, are seen as an attempt at international wealth redistribution.65 Additionally, there is a fear that the ISA would have the power to enforce an international tax on resources extracted from the seabed.66
Although these commercial concerns resonate with many economic conservatives, they are among the easiest to debunk, primarily by examining the economic consequences the United States will face if it does not accede. Claims to mineral rights in the Arctic are governed by UNCLOS provisions on an extended continental shelf, and the United States may lose these claims without representation on the ISA or State Party status.67 Additionally, many economic concerns ring hollow in the face of favorable opinions of the treaty by U.S. industries affected by such regulations.68 For example, the oil and gas industries have agreed to pay any tax levied on deep seabed extractions.69
Not only does the Convention provide a clear definition of piracy and basis for capture and prosecution of pirates, it also imposes an affirmative obligation upon parties to make efforts to curtail piracy.144 Critics of the Convention argue that it actually impedes the United States’ ability to chase and capture pirates because a ship must cease pursuit if the ship it is chasing enters its own or a third state’s territorial waters.145 They assert that this provision provides pirates with a safe haven to retreat to undeterred, and that the Convention prevents non-territorial state ships from pursuing the pirates.146 This is troubling largely because of the strong presence of Somali pirates.147 For example, under this provision, Somali pirates can attack ships and if they risk getting captured, rush back into their own state’s territorial waters where they would be safe. Somalia, a nation plagued by its own problems of lawlessness and poverty, is in no position to apprehend these criminals.148 In such a circumstance, however, the United States can assert that Article 100 of Part VII of the Convention, which imposes upon member parties the duty to cooperate in the repression of piracy, gives it the authority to continue pursuit.149 Somalia is a party to the Convention and where it cannot assist in apprehending and trying pirates, it must cooperate with others who can. This includes permitting states that are working to repress piracy by pursuing pirates to do so within Somalia’s territorial waters.150 Furthermore, a December 2008 United Nations Security Council resolution called upon states to actively assist in combating piracy off of the coast of Somalia and gives them the authority to “undertake all necessary measures ‘appropriate in Somalia’ ” in furtherance of this end for a period of one year.151 In April of 2010, the United Nations Security Council adopted a resolution that calls upon states to criminalize piracy under their domestic law and consider prosecution of and imprisonment of apprehended Somali pirates.152 This resolution also seeks a report from the Secretary General of the United Nations to present options for purposes of “prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia.”153 Given this explicit guidance to counter piracy coupled with the Convention’s anti-piracy provisions, criticism that the Convention would preclude apprehending pirates does not hold up.
Additionally, the United States explicitly acknowledges the “common heritage of mankind” principle in its passage of the Deep Seabed Hard Mineral Resources Act.65 The Deep Seabed Hard Mineral Resources Act notes that deep seabed minerals are the “common heritage of mankind” and establishes a temporary framework for the responsible and respectful mining of the deep seabed taking into account the interests of other nations.66 That the Deep Seabed Hard Mineral Resources Act was intended as a temporary framework until the Convention could be agreed upon and ratified67 further supports the United States’ willingness to embrace the “common heritage of mankind,” and ultimately the Convention which incorporates this principle.
Further, this approach carries an immediate risk to U.S. national security. Allegedly to ensure that the benefits of deep sea mining are properly shared, UNCLOS requires all states to “cooperate in promoting the transfer of technology and scientific knowledge” relevant to exploration and recovery activities in the deep seas.17 The 1994 supplementary agreement endorses these provisions, qualifying them only with vague assurances that technology transfer should be conducted on “fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights.”18 It remains to be seen whether the Authority will assert claims to impose technology transfers in this field. It could do so by making such transfers a condition for approving permits for exploration or recovery by Western firms, since all such activity requires approval of the Authority.19 Yet even without direct demands from the Authority, the Chinese government, by invoking these provisions, managed to obtain microbathymetry equipment and advanced sonar technology from American companies in the late 1990s. China claimed to be interested in prospecting for minerals beneath the deep seas. Pentagon officials warned against sharing this technology with China, given its potential application to anti-submarine warfare. But other officials in the Clinton Administration insisted that the United States, having signed UNCLOS—even if not yet having ratified it—must honor UNCLOS obligations on technology sharing. Future administrations may be more vigilant, but the Authority may, in the future, be more insistent. That is the logic of a treaty that makes mining by firms in one country contingent on the approval of the governments in other countries.