Evidence: Recently Added
The Freedom of Navigation Program. The United States is not passive in protecting its navigational rights. It actively protects them by protesting excessive maritime claims made by other nations and by conducting operational assertions with U.S. naval forces to physically dispute such claims. The United States engaged in these activities well before the adoption of UNCLOS.18
These diplomatic and military protests were formally operationalized as the Freedom of Navigation (FON) Program in March 1979 during the Carter Administration.19 The FON Program was instituted to counter attempts by other nations to “extend their domain of the sea beyond that afforded them by international law.”20 every U.S. Administration since President Carter has adopted and pursued the FON Program.21 When President Reagan decided not to sign UNCLOS in 1983, he confirmed that the United States would nevertheless continue to protect its navigational rights:
[T]he United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.22
The FON Program is relatively unknown to the public due to the fact that the vast majority of FON operations are conducted in relative obscurity, with a few notable exceptions, such as the operations in the Gulf of Sidra in 1981 and 1989 (challenging Libya’s claim of “historic waters” in the Gulf) and the “Black Sea Bumping” incident in February 1988 (challenging an excessive claim made by the Soviet union regarding its territorial sea).
In the early 1990s, the Defense Department began to publish its operational assertions in annual reports. These reports indicate that from fiscal year (FY) 1993 to the present the U.S. Navy conducted hundreds of FON operations to dispute various types of excessive maritime claims made by 48 nations.23 The United States has issued a limited number of FON protests regarding excessive maritime claims in the Arctic Circle, including protests of Russian “historic waters” claims in the Laptev and Sannikov Straits and Canadian regulations on transit through the Northwest Passage.24
The U.S. has made clear that it will act in accordance with the customary international law of the sea, including the navigational provisions of UNCLOS, and will recognize the maritime rights of other nations in the Arctic Ocean and elsewhere. When other nations assert claims contrary to customary international law, the United States actively contests such claims through the FON Program. No evidence suggests that any Arctic nation plans to hinder U.S. military mobility in the Arctic Ocean by making excessive maritime claims. Nor is there evidence that any Arctic or non-Arctic nation intends to disregard U.S. sovereignty over its territorial sea off Alaska.
While the United States took a leading role in creating UNCLOS, it is not one of the 165 countries that have ratified the treaty. At the Economist World Oceans Summit in February, Secretary Kerry criticized the U.S. Senate for inaction—while adding that the United States is nonetheless “committed to living by the law of the sea even though it isn’t ratified.” But there is no substitute for ratification, which would benefit the United States for a host of reasons, both practical and symbolic. One of the most important is the signal it would send to the rest of the world. In his May speech at West Point, President Obama once again called for Senate action on UNCLOS. “American influence is always stronger when we lead by example,” he explained, “we can’t exempt ourselves from the rules that apply to everybody else.”
Preventing the continued destruction of three quarters of our planet will require inspired U.S. leadership of the sort that was on display last week in Washington. The health of the ocean is essential for the survival not only of sea life, but of human life. As oceanographer Jacques Cousteau warned in 1981, “[the ocean] is man’s only hope. …we are all in the same boat.”
In the past, the ice covering the Arctic Ocean has presented a significant barrier to human use. One commentator asserts that, if not for the ice, “the Arctic Ocean would undoubtedly be one of the busiest seas in the history of civilization, rivaling the . . . Mediterranean.”12 Currently, only coastal regions can be navigated, and even then only by ice-breaker ships during certain times of the year, which leaves the remainder of the ArcticOcean reachable only by submarine.13 However,as further advances are made in technology and in the development of ice-breaking equipment, these waterways may become accessible year-round.14 One result of an ice- free Arctic is the opening up of a new shipping route between Europe and Asia known historically as the Northwest Passage. Access to the Northwest Passage could cut five thousand miles—or up to a week of sailing time— off circumpolar sea voyages, as these ships must otherwise travel via the Panama Canal.15 It is important to consider, however, that though seasonal melting may make the region more accessible in some respects, such melting will also result in more icebergs, creating new hurdles to access.16
If the U.S. Senate ratifies the Convention on the Law of the Sea of 1982, Russia will not witness any significant changes in bilateral relations in the Arctic. It is obvious that the U.S. intends to apply the Convention only when it coincides with its national interests. Potential conflicts will be resolved through bilateral negotiations rather than UNCLOS provisions directly.
Since the Convention does not oblige all contentious issues to be decided within its rules and institutions, the United States can either appeal to precedent or refuse to discuss an inconvenient problem in terms of the Convention. Apparently, some Russian experts underestimate the fact that under international law, common law prevails over codified law. This allows the U.S. to bypass the Convention and is all the more reason to not consider it a universal source of law on Arctic issues.
In line with this logic, experts from the Ministry of Defense and the Department of State submitted their official conclusions to the U.S. Senate in which they found that ratification would not impose any restrictions on the military.
Moreover if the Convention was ratified, the U.S. could appeal to the right of transit in territorial waters enshrined in the Convention as grounds for legal military presence not only in the Barents Sea, but also anywhere in the world. In case of complaints about the inadmissibility of covert presence or military activities in territorial waters, the United States could exercise the right of self-interpretation, challenging what is meant by military activities in the particular case (Article 298-1 of the Convention).
U.S. military activities cannot be a matter of contention within the framework of the Convention. Similarly, Russia will not receive any positive changes to the delimitation of the Bering Sea or defining the boundary line in the Chukchi Sea and beyond the exclusive economic zone towards the pole.
Thus, strategic environment and level of cooperation between Russia and the United States in the Arctic will be based on the state of their bilateral relations in general, and not on the U.S. decision of whether or not to ratify the UN Law of the Sea.
I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.
But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues? China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China. Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS. How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?
As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration. But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities). I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference. But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).
It would therefore be disturbing to see precautionary thinking permeate the operation and application of the Treaty, given the potential effects on trade, innovation, and the economy at large. Yet that is precisely what has happened. In the Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) on the over-fishing of Bluefin tuna, the Tribunal implicitly referred to the precautionary principle in its verdict, which generally instructed the parties to sort the matter out among themselves:
“Considering that, although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern Bluefin tuna stock.”53
As Alana Rubin of the Michigan State University’s Animal Legal and Historical Center points out, this paragraph, “...further supported by paragraphs 77 and 79, refers to the scientific uncertainty regarding the stock of southern Bluefin tuna, and due to this uncertainty, conservation measures must be taken to prevent serious harm to the stock. In making its decision, the Tribunal noted that all parties agreed that the stock was at its lowest levels historically and that, therefore, Japan, Australia and New Zealand must implement conservation measures. In effect, the scientific evidence, even if ‘uncertain’ triggered the ITLOS’ [Tribunal’s] application of the precautionary principle. Thus, in making its decision to stop Japan’s actions, the ITLOS [Tribunal] applied the precautionary principle.”54
The Treaty would also significantly reduce the United States’ discretion in applying laws. America’s constitutional system gives its courts significant powers of judicial review. In the area of international rules on environmental pollution, however, accession to LOST would delegate those powers to the Tribunal or a similar court. That is the missed meaning of Article 213, on enforcement with respect to pollution from land-based sources:
“States shall enforce their laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.”
As Christopher C. Horner, attorney and senior fellow with the Competitive Enterprise Institute, has noted, “That is a power grab not even the Kyoto Treaty dared attempt. The United States rejects Kyoto; why would we join Kyoto with a court?”46
Those who are concerned that the marine environment is being damaged by pollution could put their case before the Tribunal, but the obligations of Part XII would have a special effect on the United States, where citizens may sue to ensure the government follows its laws. Under the U.S. Constitution, international treaties have the force of law. Ratifying LOST would therefore enable environmental groups to sue to ensure the release of toxic substances is minimized “to the fullest possible extent” if there is a chance the material will enter the marine environment.
Consider: The nation’s coal-fired power plants release mercury into the atmosphere. Some of this mercury consolidates in rivers, and eventually reaches the ocean. As a result, fish that swim in the ocean have slightly higher levels of mercury in their systems. Sharks that eat these fish have even higher mercury concentrations. The concern that pregnant mothers who eat shark meat are damaging the cognitive development of their unborn children has led environmentalists to demand that the U.S. Environmental Protection Agency issue regulations to reduce the risk to unborn children.
However, consider what the Treaty text implies. There is no requirement to prove that the emissions actually cause significant harm. If the substance emitted is “harmful” to any degree, states are simply required to minimize emissions “to the fullest possible extent.” To all practical purposes, taking the Treaty at its word would require the closure of most if not all coal-fired electricity generation in the United States.
This kind of activism has not taken place in any of the other signatory states, likely because they offer fewer opportunities for concerned citizens to require their governments to follow the spirit and word of the Treaty. In the United States, however, environmental groups would probably sue the day after formal ratification, and the courts would be unlikely to throw out their challenges.
The problem of intellectual property protections was supposedly solved in the 1994 agreement, but it is vague, and the Authority’s latent powers remain to make it a continuing issue. Sponsoring states are still required to facilitate technology transfer “if the Enterprise or developing states are unable to obtain” the advanced equipment commercially. Thus, if a contractor develops a breakthrough mining technology, it will be compelled to sell it commercially to rivals or face the prospect of giving it away to the Enterprise (a direct competitor) and developing states. Neither of these options will be attractive to an entrepreneurial company, thereby further deterring investment in deep sea mining Research and Development. (Defense technology transfers are also a concern, but beyond the scope of this study.