Revision of U.S. already abides by UNCLOS as a matter of customary international law and domestic policy from Thu, 11/02/2017 - 10:46
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
Paradoxically, the critics seem not to have noticed that the less protective 1958 Conventions already binding on the United States, unlike the 1982 Convention, contain no denunciation clause. Unless the United States adheres to the 1982 Convention, which would automatically supercede our obligations under the 1958 Conventions, we would be faced with substantial uncertainty about revision or withdrawal from the 1958 Conventions. Under the 1958 Conventions, a request for revision of the Conventions would simply be referred to the United Nations General Assembly, which would then “decide upon the steps, if any, to be taken in respect of such requests.” And, in the absence of a denunciation clause in the 1958 Conventions, it would be unclear under international law whether the United States would be able to lawfully withdraw at all from these Conventions. In sharp contrast, not only will adherence to the 1982 Convention automatically supercede outmoded United States obligations under the 1958 Conventions, but the 1982 Convention does contain a denunciation clause. Under Article 317 of the Convention the United States may leave the Convention after one year following a simple denunciation. Thus, if the horribles espoused by the critics were to occur, the United States could simply denounce the Convention and withdraw;
In spite of the fact that the United States has not formally adopted UNCLOS, the applicability of the Convention's Articles governing sovereignty over the continental shelf to the United States-namely Articles 76 through 85-is for several reasons not seriously in dispute. First, many writers contend that Article 76 has become a defacto part of customary international law because of its wide adoption-either via ratification of the Convention itself or via unilateral laws modeled after the Convention.47
Second, the United States has repeatedly demonstrated its intent to be bound by the provisions of UNCLOS not relating to Part XI, which prohibits mining on the deep-sea beds. For instance, after refusing to sign the treaty in 1983, President Reagan announced his intention that the United States nevertheless act in accordance with UNCLOS.48 Although it never reached a floor vote, President Clinton referred UNCLOS to the Senate Committee on Foreign Relations in 1994.49 The Bush administration similarly pushed for ratification of the Convention, likely because it found "that the Convention's navigational and national security benefits far outweigh any costs to the U.S."50 UNCLOS has found similar support in the decisions of the federal courts.51
Some critics seem also to act as though United States non-adherence would prevent the Convention from coming into effect, that we can engage in further renegotiation, or that we can simply ignore the Convention in our relations with other nations. None of these assumptions is true. The 1982 Convention is in force for 145 nations and is today the basic legal regime for the world’s oceans. For example, whether or not the United States adheres to the Convention, the Seabed Authority will remain in place. The only difference will be that the United States will gratuitously deprive itself of its deep seabed mining industry and our ability to control the rules and regulations, amendments and any distribution of revenues to states parties in the actions of the Authority. And following a major renegotiation at United States insistence before the Convention went into force (a renegotiation that met all United States conditions established by President Reagan for United States acceptance) there is zero possibility of further renegotiation. Any amendments from this point forward can only come from the participation of states parties using normal Convention provisions for amendment. Similarly, whether or not we are a party to the Convention, when the United States seeks to mobilize its allies around an important initiative such as the Proliferation Security Initiative, it will quickly find, as it has, that our allies will insist on compliance with the Convention provisions;
Military Operations. U.S. military forces are already legally bound to follow the provisions of convention by virtue of President Reagan’s 1983 Statement on Ocean Policy; therefore, joining the convention will impose no additional restrictions on U.S. military operations. Since the completion of the 1994 agreement, there has been unanimous support for joining the convention by uniformed and civilian national security leaders, including the chairman and Joint Chiefs of Staff, the combatant commanders, and the comman- dant of the Coast Guard. The public record documenting historical and current support by national security leaders is overwhelming.32 The most recent testimony of Deputy Secretary of Defense Gordon England succinctly captures this support:
“President Bush, Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, the Combatant Commanders, the Commandant of the Coast Guard and I urge the Committee to give its approval for U.S. accession to the Law of the Sea Convention and ratification of the 1994 Agreement. The United States needs to join the Law of the Sea Convention, and join it now, to take full advantage of the many benefits it offers, to mitigate the increasing costs of being on the outside, and to support the global mobility of our armed forces and the sus- tainment of our combat forces overseas.”33
The United States has long been party to the four 1958 Geneva Conventions on the Law of the Sea, many of whose provisions are copied and elaborated upon in the 1982 Law of the Sea Convention. It is puzzling that a few commentators maintain that dire consequences would flow from Senate acceptance of texts that are no different from those already contained in the Geneva Conventions and other treaties to which we are party.
It is also puzzling that a few commentators maintain that dire consequences would flow from Senate acceptance of texts that President Reagan publicly committed the United States to respect. President Reagan formally declared that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.” 2
As previously discussed, less than two weeks before President George W. Bush left the White House, the Bush Administration issued a Presidential Directive asserting that "[t]he United States is an Arctic nation."268 The Directive declares that "[t]he United States has broad and fundamental national security interests in the Arctic region and is prepared to operate either independently or in conjunction with other states to safeguard these interests."269 In addition to asserting "lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region,"270 the Directive encourages U.S. agencies to "[tlake all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law."
The terms of the Directive essentially instruct the United States to abide by UNCLOS and map the U.S. continental seabed in order to submit an extended continental shelf claim to the CLCS.272 In fact, when President Bush issued the Directive, he expressly called on the U.S. Senate to ratify UNCLOS, explaining that UNCLOS offers "[tihe most effective way to achieve international recognition and legal certainty for our extended continental shelf."273 Succeeding Vice President Biden as Senate Foreign Relations Committee Chairman, Senator John Kerry also said he would advocate for ratification of UNCLOS274 and would like to bring the Convention to a vote this year.275 As explained by Kerry, "'[i]n order to guarantee secure borders ... and protect our marine resources, we must become full partners with the other Arctic nations and ratify the U.N. Convention on the Law of the Sea."'276 Secretary of State Hillary Clinton also endorses the UNCLOS and stated during her confirmation hearings that ratifying the Convention would be a priority.
Ratified by 160 states, UNCLOS is accepted and followed around the world.168 Even though the United States is not a party to the treaty, U.S. case law adopts and acquiesces to the provisions of UNCLOS and treats them as customary international law.169 For example, in United States v. Alaska, the government noted that the United States “has not ratified [UNCLOS], but has recognized that its baseline provisions reflect customary international law.”170 Given this apparent acceptance of UNCLOS principles, perhaps over time the United States will lose the ability to claim it is not a party to UNCLOS because of the power of acquiescence.171