U.S. participation in UNCLOS will not undermine national sovereignty
The sovereignty costs associated with the Convention are grossly overstated primarily because many of these costs have already been accepted by the United States. In addition, the U.S. stands to gain sovereignty over 4.1 million square miles of territory by acceeding to the treaty.
Quicktabs: Arguments
In contrast, quite to the contrary of arguments advanced against the Convention by some opponents, the Convention does not remove United States sovereignty or sovereign rights over the resources of the deep seabed. Neither the United States nor any other Nation has now, or has ever had, sovereignty over the mineral resources beyond the continental margins. In fact, it has been a consistent position of the United States and other developed nations to oppose any extension of national sovereignty into this area. Indeed, it is precisely because no nation in the world controls the mineral resources of the ocean basins that the Convention has created a narrowly limited international mechanism to permit mining of these resources. For without such a regime, industry simply cannot obtain the legal rights necessary for the over billion dollar cost of a deep seabed mining operation.
Today's opponents, including Ayotte, DeMint, and Portman, focus on two issues. First, they argue, the treaty is an unacceptable encroachment on U.S. sovereignty; it empowers an international organization -- the International Seabed Authority -- to regulate commercial activity and distribute revenue from that activity. Yet sovereignty is not a problem: During the 1994 renegotiation, the United States ensured that it would have a veto over how the ISA distributes funds if it ever ratified the treaty. As written, UNCLOS would actually increase the United States' economic and resource jurisdiction. In fact, Ayotte, DeMint, and Portman's worst fears are more likely to come to pass if the United States does not ratify the treaty. If the country abdicates its leadership role in the ISA, others will be able to shape it to their own liking and to the United States' disadvantage.
Protecting national sovereignty is a legitimate aim -- and one that some liberal internationalists may have been too cavalier about in the past. But for the goal to have any meaning, it must be framed so that it can be met. This is certainly what Reagan had in mind when he articulated a specific set of problems with the original UNCLOS that could be (and eventually were) dealt with. This time around, however, those who object to the treaty have defined sovereignty in such ideological terms that they will never be satisfied. By their reckoning, the United States can never be party to an international organization, even if it has veto status in it.
An international organization might very marginally limit U.S. freedom of action, but this is negligible in comparison to the harm that instability and conflict in the South China Sea could inflict on U.S. interests. Previous presidents from both parties understood the trade-off: In challenging times, and to exercise global leadership, Washington protected its interests by making enlightened commitments overseas, whether in the form of alliances, institutions, or foreign assistance.
Myth: The United States is giving up sovereignty to a new international authority that will control the oceans.
Nothing could be further from the truth. The United States does not give up an ounce of sovereignty in this convention. Rather, as noted, the convention solidifies a massive increase in resource and economic jurisdiction for the United States, not only to 200 nautical miles off our coasts, but to a broad continental margin in many areas even beyond that. The new International Seabed Authority (ISA) created by this convention, which, as noted, has existed for a decade and will continue to exist regardless of U.S. actions, deals solely with mineral resources of the deep seabed beyond national jurisdiction--it has nothing to do with the water column above the seabed. The deep seabed is not only an area in which the United States has no sovereignty; but one on which the United States and the entire world have consistently opposed extension of national sovereignty claims.
The sovereignty costs associated with the Convention are grossly overstated primarily because many of these costs have already been accepted by the United States. Provisions of the Convention that infringe upon sovereignty include limitations on unilaterally claiming territorial waters, limitations on economically exploitable areas on the seas, limitations on the continental shelf, revenue sharing provisions for exploitation of resources on the high seas, imposition of environmental obligations, and a mandatory dispute resolution mechanism.22 As will be discussed next, the United States has already agreed to most of these provisions through a variety of previously signed treaties.23
Ultimately, the Convention settled on an outer limit for the continental shelf of 200 miles,38 which satisfied many geographically disadvantaged states (those that do have a naturally wide shelf), but also allowed special considerations for states with naturally broad shelves by granting them a potentially deeper shelf of up to 350 miles instead of the standard 200.39 With the exception of the special considerations, Convention provisions limiting the continental shelf echoed those in the 1964 Convention on the Continental Shelf which set the limit as 200 miles and gave coastal states exclusive rights over its continental shelf.40 The United States is a party to the 1964 Convention on the Continental Shelf and thus bound by these limits.41 However, if the United States qualifies for the special considerations provided for in the Convention for states with naturally broader shelves, it has the potential to increase its continental shelf.42
Many of these arguments have been put into perspective, however, by the actual history and operation of UNCLOS. Instead of posing a threat to national sovereignty, U.S. ratification of UNCLOS would actually enlarge U.S. power by providing a permanent seat on the ISA,58 and would be ―the greatest expansion of U.S. resource jurisdiction in the history of the nation.59 A permanent seat on the ISA would give the United States a strategic advantage, namely a ―greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.60
Concerns about abuse of power by the ISA are similarly unfounded, as the ISA operates independently from the U.N.61 and is comparable to other specialized U.N. organizations, many of which the U.S. already endorses. Further, the navigational protections for American ships on the high seas would enhance, not diminish, U.S. sovereignty.62 Some UNCLOS proponents also argue that claims to U.S. sovereignty are overstated in the context of a shared resource like the world‘s oceans.63 Finally, due to the inevitability of international reliance on UNCLOS to form international maritime law and regulate maritime disputes, the United States will suffer a huge loss of power if it fails to accede to the treaty.64
Even more laughable is the charge of a conspiracy to create a world government. In reality, the convention expanded national sovereign rights more than any international agreement in history. Its central thrust entails an extension of coastal resource and economic rights in a vastly enlarged exclusive economic zones (EEZ) and continental shelf, while furthering sovereign rights and navigational freedom. On the contrary, the corridors of the law of the sea negotiations were predominantly filled with thoughts of nationalism rather than internationalism. And ironically, in their attack on the convention, the critics join extreme internationalists who have been key opponents of the treaty because it focuses on national sovereign rights.
Now let me also say that by those first principles, I am deeply disappointed at voices which continue to violate, it seems to me, those principles in this Law of the Sea negotiation. Allow me to present a few examples. Over and over again we hear voices urging that the Convention would give our sovereignty away. The Convention gives away not a single ounce of United States’ sovereignty. This is not only false, but it is absolutely upside down. What was the reality of these negotiations? The reality is the greatest expansion of national resource jurisdiction in the history of the world. This was a coastal state win, hugely, not some kind of internationalist win for the straw argument Elisabeth Mann Borgese socialists24 that are cited over and over again by opponents.25 They lost one hundred percent. Some of the academic community did support that.26 They did not get anywhere near this Convention. This convention was a victory for nationalism and state sovereignty. And that is why you see the massive extension of 200-mile economic zones and continental shelves in this Convention.27