Revision of U.S. already abides by UNCLOS as a matter of customary international law and domestic policy from Fri, 07/19/2013 - 15:11
Quicktabs: Arguments
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
UNCLOS provides the overarching framework governing international ocean affairs. The Convention is one of the most wide-ranging, comprehensive international Conventions and, together with its associated agreements3, covers or touches on virtually all marine activities. UNCLOS has, moreover, achieved broad acceptance from the international community. At the time of writing the Convention boasted 164 parties, comprising 163 States plus the European Union. When it is recalled that there are 'only' 155 coastal States in the world, the near-comprehensive uptake of UNCLOS is underscored.
Indeed, despite being a non-party itself, the US nonetheless accepts that key aspects of UNCLOS, such as the maritime jurisdictional and boundary delimitation provisions, are declaratory of customary international law and conducts its policy accordingly.4 In terms of international law and international relations, US accession to the Convention would therefore consolidate and reinforce the oceans policy and practice pursued by successive administrations of both political persuasions in the US.
Promote International Law and Freedom of the Seas
Objective: The United States will continue to promote freedom of the seas and global mobility of maritime and aviation interests for all nations in accordance with international law. The United States will promote and conduct such activities in the Arctic region as appropriate.
Next Steps: The United States will exercise internationally recognized navigation and overflight rights, including transit passage through international straits, innocent passage through territorial seas, and the conduct of routine operations on, over, and under foreign exclusive economic zones, as reflected in the Law of the Sea Convention. Toward this end, the U.S. Government will, as appropriate:
- Conduct routine Arctic maritime exercises, operations, and transits consistent with international law.
- Inform the Arctic Council, International Maritime Organization, tribal organizations, and other interested governments of U.S. activities conducted.
- Engage the private commercial shipping and aviation sectors and involve stakeholders and experts in academia and non-governmental organizations to promote the rights and responsibilities of freedom of navigation and overflight in the Arctic region.
- Promote the global mobility of vessels and aircraft throughout the Arctic region by developing strong relationships and engaging in dialogue with international partners, especially Arctic states.
- Continue to document U.S. diplomatic communications in the Digest of U.S. Practice in International Law published by the Department of State.
- Continue to document the Department of Defense report on fiscal year freedom of navigation operations and other related activities conducted by U.S. Armed Forces
- Continue to deliver strategic communications at appropriate opportunities to reflect U.S. objections to unlawful restrictions in the Arctic on the rights, freedoms, and uses of the sea and airspace recognized under international law.
- Continue to encourage excessive maritime claims to be rescinded or otherwise reformed to comply with international law.
Measuring Progress: Progress will be measured through the continued preservation of the freedoms of navigation and overflight and other rights and uses of the seas consistent with customary international law as reflected in the Law of the Sea Convention throughout the Arctic region, including the Northwest Passage and Northern Sea Route.
Yet despite its problems, over the course of the years the Convention has gained support from the legislative, executive, and judicial branches of the U.S. Government. Indeed, UNCLOS has served as "the cornerstone of U.S. oceans policy since 1983."n314 In 1980, anticipating both the mass appeal of UNCLOS and the potential conflict with American interests, Congress passed the Deep Seabed Hard Mineral Resources Act n315 in order to establish a provisional regime that advanced the interests of the mining industry.n316 The Act is still in force, having been reauthorized by Congress in 1986, four years after UNCLOS was available for signing.n317
Even after refusing to sign the Convention, Reagan issued an Ocean Policy Statement in 1983 announcing that the United States "accepted, and would act in accordance with, the Convention's balance of interests relating to traditional uses of the oceans everything but deep seabed mining." n318 In an executive order several years later, Reagan further elaborated that the United States would maintain a territorial sea of twelve nautical miles in compliance with UNCLOS, and that negotiations would remain open to develop a deep seabed mining regime.n319 Faced with an obstinate Senate that refused UNCLOS in 1994, after the amended Convention was submitted for ratification, President Clinton issued a similar proclamation recognizing a contiguous zone consistent with UNCLOS in 1999.n320
Finally, U.S. domestic case law also reflects an intention to refrain from action that would be antithetical to the purposes of UNCLOS.n321 Indeed, many federal court cases consider and apply provisions of the Convention, considering it an expression of customary international law at minimum.
Delineate the Outer Limit of the U.S. Extended Continental Shelf
Objective: Develop the U.S. submission in support of delineating the outer limit of the U.S. Extended Continental Shelf in the Arctic.
Next Steps: Continue to conduct activities in support of the United States’ Extended Continental Shelf (ECS) in the Arctic, including:
- Process and interpret the seismic data, refine the base of slope, and develop a geologic framework for the U.S. ECS in the Arctic Ocean and Bering Sea through 2015.
- Complete the analyses and documentation necessary to delineate the outer limits of the U.S. ECS in the Arctic Ocean and Bering Sea through 2016.
Measuring Progress: Progress toward delineation of the outer limit of the U.S. continental shelf in the Arctic will be measured by the completion of the U.S. Extended Continental Shelf Task Force analysis, preparation of the necessary documentation, and submission of a well-supported delineation of the U.S. Extended Continental Shelf in the Arctic and elsewhere in accordance with the Convention on the Law of the Sea.
Lead Agency: Department of State
Supporting Agencies: Department of Commerce (National Oceanic and Atmospheric Administration), Department of Defense, Department of Homeland Security, Department of the Interior (United States Geological Survey)
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.