Revision of U.S. position as a leader has been damaged by non-participation from Sat, 11/11/2017 - 17:10
U.S. failure to ratify UNCLOS raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order.
Additionally, our partners lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don’t ultimately become party to them, especially as in the case of UNCLOS where the U.S. negotiated aggressively to win valuable concessions and won them.
Quicktabs: Arguments
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.
A final reason arguing for U.S. accession to the convention is the position of the United States as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world's leading oceanic state. Clearly, U.S. refusal to ultimately accede to a convention widely regarded as one of the most important agreements ever negotiated would raise fundamental questions regarding not only the future legal regime applicable to the world's oceans, but also the leadership of the United States with respect to the promotion of international law and order.37 The regime of the Law of the Sea Convention presents a superb opportunity for the United States to provide world leadership in an area of increasing importance to the community of nations.38
By actively promoting "leadership for peace" in the politically and economically important area of an orderly codification of maritime laws and regulations, the United States could assure itself a major role in shaping a post-hegemonic global order.39 Conversely, U.S. opposition to the convention would not only jeopardize significant national interests in the law of the sea without substantially offsetting benefits, but also could constitute an implicit rejection of the promotion of world order through international law as a foreign policy goal. Viewed less charitably, failure of the United States to fully support the convention could reflect a belief that unilateralism is a viable policy alternative when backed by military force.40 Conversely, full participation in the Law of the Sea Convention ultimately provides the United States with an opportunity to exercise world leadership within the context of far broader international activity and participation than was possible during the cold war.
The US is, of course, the world's sole superpower and its pre-eminent maritime power. Accordingly, the US clearly plays a leading role in global affairs. The US also perceives itself to be a world leader and is keen to project and promote this image and reality. The fact that the US is not a party to the Convention undermines that leadership role in the maritime sphere. Critically, when the United States comments on maritime issues of concern to it, such as regarding excessive maritime claims through the FON program or on the South China Sea disputes for instance, a frequently raised objection to Washington's interventions is that the US has not signed up to UNCLOS. This serves to compromise the credibility and authority of the US in global ocean affairs. US accession would therefore remove a somewhat irrelevant, but far from unimportant barrier to the United States playing a strong leadership role as the contemporary law of the sea. The counterpoint here is that by choosing not to participate the US is abdicating or at least undermining its credential to a leadership role in international ocean affairs. The rationale for ratification on this front alone is therefore, it is submitted, persuasive.
The United States strictly adheres to the provisions of the Law of the Sea Convention. We understand the value of upholding international law. By establishing universal standards for global issues, we give diplomacy a better chance of succeeding and help ensure that a large country like China won’t simply steamroll smaller neighbors when disagreements arise. Ordinarily, the United States would be in a good position to urge governments to stick to their obligations and abide by the Tribunal’s decision.
Except we’re not party to the Law of the Sea Convention. By our own choosing, we are shut out of the process. Despite the fact that the United States champions freedom of navigation and the international rule of law, our Navy carries out those policies around the world and has long supported joining the Convention, and the Convention has won broad bipartisan support, a handful of Republican Senators have undercut America’s ability to stand up for our own values and interests. This is particularly troubling at a time when one of the pivotal international concerns of the 21st century is coming to a head.
American leaders will continue to support the Tribunal and encourage governments to abide by its decision. But we can and should be doing more, to include ratifying the Convention itself. The stakes are simply too high for the United States to take itself out of the lineup. China is working to deepen divisions and consolidate its power in Asia. If China gets its way, it will derail efforts to establish a rules-based order in the Asia-Pacific, worsen a potentially dangerous situation in the South China Sea, and undermine America’s ability to ensure maritime stability around the world.
This is exactly the problem with the U.S. position on UNCLOS and the disconnect between stated intentions and the ultimate failure to ratify. As John B. Bellinger III points out, treaty partners “lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don’t ultimately become party to them.”48 Specifically what Mr. Bellinger is referring to is the loss of U.S. credibility, or in other words the rightness of actions. Furthermore, because the United States is so successful at negotiating treaties, when representatives push hard for and are in turn granted changes within the document (as is the case with the 1994 agreement on implementation), but then ultimately fail to accede, it is very frustrating for the other nations involved.49 Again, this erodes U.S credibility and in turn legitimacy of action. With this in mind, the U.S. Senate must take the earliest opportunity to harvest this “low hanging fruit” and free PACOM from a barrier that detracts from shaping operations in the South China Sea (SCS).50
During the UNCLOS negotiations, there was concern by the global community and the US for the greater good to avoid an oceanic tragedy of the commons.n57 Thus a way had to be found to accommodate US interests even on seabed mineral extraction matters. As a result, negotiations continued for a number of years and resulted in a separate agreement responding fully to US objections.n58 This agreement has now been accepted by 140 states but curiously and strangely not by the US for which it was designed!n59 This yet again illustrates the difficulty US negotiators have at critical international meetings when they achieve what is required. This problem moreover undercuts US credibility internationally as a reliable negotiating partner. The world's impression is that the US propounds, urges, uses its bully pulpit, negotiates strongly, and then fails to follow through. A tragedy of the commons may be more difficult to avoid than otherwise without the strong US leadership made possible by its following through with advice, consent, and ratification.
But this will change as these initiatives continue to reconfigure sea power itself. Consequently it is not surprising (but unfortunate) that the Cooperative Strategy failed to promote international law of the sea as the organizing principle and principal goal of U.S. maritime strategy. This glaring omission has been noted by numerous friends and allies, who time and again reminded the United States of the centrality of international law in their responses to the original thousand-ship-navy concept. Writing separately, naval commanders from France, Ghana, India, Portugal, and Spain all made reference to the importance of international maritime law in their comments on the thousand-ship navy published in 2006 by the Proceedings of the U.S. Naval Institute.41 A year later, many of the same chiefs of service were asked to respond to Admiral Michael G. Mullen’s plan for a new U.S. maritime strategy. Once again, international law was a prominent feature of their replies; the leaders of the naval forces of Brazil, Peru, Portugal, Colombia, Uruguay, Lebanon, and Spain urged the United States to ensure that maritime security is rooted in multilateral legal frameworks.42 It is especially important that the vigorous expansion of maritime partnership integration propelled by international law be maintained. The maritime domain awareness provisions of the SOLAS Convention, the counterproliferation and counterterrorism elements of the SUA 2005 protocols, and PSI, with its informal nature, and Security Council action against piracy, constitute the greatest package of multilateral maritime-security commitments since the interwar period of the 1930s. The United States led each of these efforts, but there is a widespread perception that the American “brand” has suffered since and that the diplomatic influence of its friends and allies in Europe has diminished.43 Meanwhile, that of China and Russia is expanding. The upshot is a degree of doubt about the ability of the West to shape the future direction of international maritime law toward a shared vision of the rule of law at sea. This means that we should be prepared to make even greater investments in cooperation, and the development of international maritime law and institutions, to realize the goals of the Cooperative Strategy.
By the continual erosion of our nation's oceans leadership, badly needed American jobs are lost. The consequences are also serious as to how we are viewed by other nations. When the United States achieves everything it requires in a Convention, including a tough revision meeting all of its objectives, not to adhere makes it more difficult for America to negotiate other agreements. Our friends are simply astounded that the nation which achieved more than any other through the Convention has still not joined. They conclude from the flimsy arguments they hear against the Convention that America has simply gone isolationist. As such, our non-adherence continues to harm United States credibility and leadership in oceans matters and, more broadly, in our foreign policy. It is past time for Senate Advice and Consent.