Revision of U.S. already abides by UNCLOS as a matter of customary international law and domestic policy from Sat, 03/01/2014 - 16:26
Even though U.S. has not ratified UNCLOS, it still has committed itself to abiding by its principles in two ways: through numerous policy statements and laws drafted in accordance with UNCLOS and committing the U.S. to abiding by it; and due to the fact that the Law of the Sea has become customary international law.
Quicktabs: Arguments
Perhaps the most dangerous threat to American sovereignty in the Arctic is the enforceability of UNCLOS as part of American law, either as positive treaty based domestic law or customary international law. While the reach of the Convention may be debated under both headings to some extent, it cannot help but affect the United States' Arctic designs.
Although still pending ratification, at times UNCLOS may be assigned virtually the same legal status as if it were a properly ratified treaty, albeit in a roundabout and piecemeal fashion. If President Reagan's culling UNCLOS for acceptable provisions bound the United States to a majority of the Convention's provisions, then President Clinton committed the United States to the remainder, including the amended Part XI mining regime, by signing the Convention in 1994 in spite of an obstinate Senate.
The court in United States v. Royal Caribbean Cruises bore this out, holding that UNCLOS "carried the weight of law from the date of its submission by ... President [Clinton] to the Senate."n348 In finding that the Convention applied to an oil spill within U.S. waters, the court reasoned that the United States was obliged to honor the agreement to which the executive branch has tentatively made the United States a party, and that the submission of the treaty alone to the Senate was indicative of the America's "ultimate intention" to be bound by the Convention.n349 Following this line of reasoning, albeit to somewhat of an illogical extreme, the Supremacy Clause would place UNCLOS atop the hierarchy of domestic laws in spite of nonratification.
Even acknowledging the suspect reasoning of this theory, emphasis still will fall to customary practice to determine the extent of U.S. presence in the Arctic, which could well lead to unsatisfying results. Indeed, America's ambiguous relationship to UNCLOS has done little to affect the Convention's operation, its actions actually facilitating its application as binding customary law.
US accession to the Law of the Sea Convention in the immediate future might not be possible. Yet US presidents of both political parties have taken the maximum possible action within their legal authority to respect the law of the sea, by declaring that many of the rules contained in the Convention reflect customary international law, and by acting accordingly. Moreover, US military commanders and forces are instructed to adhere to customary international law, including that re ected in the Law of the Sea Convention. On a more practical level, this author always has a copy of the Convention on his office desk and routinely relies upon many of the rules of law contained therein as a reflection of customary international law when advising his military commander-clients and their staffs on law of the sea matters.
Ironically, the United States is currently preparing its own extended-continental-shelf claims in the Arctic even though it is not party to UNCLOS, which provides the mechanism for submitting such claims. American legal rationale and liabilities pertaining to this are published on the Extended Continental Shelf Project website of the U.S. government:
The United States is the only Arctic country, and indeed one of the few countries in the world, that has not yet ratified the LOS Convention. A non-party country has the same rights in its extended continental shelf as a country that has ratified the Convention, but without ratifying, the U.S. cannot submit its scientific findings to the CLCS, which means the U.S. will not have the opportunity to receive their recommendations and set ECS [extended continental shelf] limits based on them. There is an [sic] benefit to considering these recommendations: according to the LOS Convention, if a coastal country establishes its ECS limits “on the basis of” CLCS recommendations, those limits are “final and binding.”117
Accession to UNCLOS is the common recommendation of both the former George W. Bush and current Barack Obama administrations and is supported by a strong alliance of American military, environmental, shipping, energy, and other interests. In its recently issued “U.S. Navy Arctic Roadmap,” the U.S. Navy itself urges UNCLOS accession.118 Nowhere is the rationale for accession better spelled out than in the most recent statement of American Arctic policy, issued during the final days of the Bush administration:
The Senate should act favorably on U.S. accession to the U.N. Convention on the Law of the Sea promptly, to protect and advance U.S. interests, including with respect to the Arctic. Joining will serve the national security interests of the United States, including the maritime mobility of our Armed Forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.119
To further demonstrate its support for the Convention’s legal regime, a succession of US presidents over the past three decades have directed a multi-agency US Freedom of Navigation Program to preserve the nation’s rights, freedoms, and lawful uses of the sea and airspace throughout the world. Of note, this US interest in freedom of navigation has included maintaining that freedom in the waters of East Asia, as demonstrated by a combination of public statements, diplomatic correspondence, and operational activities. Through the 1980s, 1990s and 2000s, the US Department of State has diplomatically protested and the US Department of Defense has operationally challenged excessive maritime claims asserted by nations in East Asia that are inconsistent with the Convention. These US efforts to preserve the legal regime reflected in the Convention are transparently documented in the US Department of Defense’s Annual Freedom of Navigation Reports and its Maritime Claims Reference Manual, both of which are available to the public on the Internet.
At the same time, the United States has demonstrated support for the Convention’s legal regime through its actions as a coastal state, to include respecting all of the rights, freedom, and lawful uses of the sea and airspace exercised by other states. For example, when vessels and aircraft from foreign militaries, such as Russia20 and China,21 conduct military activities in and over the US exclusive economic zone, the United States has fully respected this “other internationally lawful use of the sea” by foreign militaries reflected in the Convention
The United States will at some point fully adhere to the Convention. Every oceans industry interest in the United States supports the Convention, from the oil majors to the environmentalists. Indeed, the only opposition is ideologically based, rather than interest based, and even then is senseless un- less rooted in inaccuracies about the Convention. In the meantime, the United States accepts the normative provisions of the Convention as cus- tomary international law, and the United States Navy has one of the best records in the world in careful compliance.