Adversaries using U.S. absence from UNCLOS to modify martime law in ways adverse to U.S. interests
As the pre-eminent global maritime power, the U.S. has significant interests in the global effect of the Convention’s rules and their interpretation with many issues that of greater concern to us than to most other countries (for example, preserving freedom of navigation rights). Our adversaries view this as a weakness they can exploit and are shaping the course of the convention in ways adverse to U.S. interests while the U.S. remains on the sidelines, unable to participate in the discussion as a non-party.
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The new institutions created by the Law of the Sea Conven- tion could at times decide matters affecting high seas freedoms, and the United States could contribute to such decisions if it participated as a member of these institutions. For example, could the International Seabed Authority promulgate mining-related environmental regulations restricting the scope of permitted activities at deep seabed vents where living organisms, as well as polymetallic sulfides, are found? U.S. participation in the work of the Authority could help to ensure that non-mining activities on the deep seabed, such as bioprospecting for living organisms at deep seabed vents (a part of the multi-billion dollar marine biotech business), continue to be regarded as high seas freedoms.65 U.S. interests in high seas freedoms also provide one impetus for U.S. participation in the work of the Conti- nental Shelf Commission, another institution created by the Convention. Overly expansive coastal state assertions of continental shelves beyond 200 miles from baselines would reduce the area of the oceans in which rights and freedoms are subject to the fewest restrictions.66 The United States could most effectively counter such assertions by participating as a member of this Commission. These participation or process concerns are illustrations of the general claim that accession to the Law of the Sea Convention is important to U.S. leadership on oceans issues.
Instead of reinforcing the existing international legal order, China is seeking to change the rules and norms that define international maritime rights. In the South China Sea, this results in friction, as China’s neighbors and the United States insist on preserving their maritime rights. Managing this friction will be challenging, but the United States and its regional friends and allies should continue to work together to encourage China to accept the existing norms and support the pillars of globalization rather than undermin- ing them. This perspective was reflected in the Department of Defense’s 2011 Annual Report to Congress on Military and Security Developments Involving the People’s Republic of China, which states, “The United States welcomes a strong, prosperous, and successful China that reinforces international rules and norms and enhances 29 security and peace both regionally and globally.” Unfortunately, that statement must still be taken as aspirational with regard to the laws, rules and norms that govern maritime security and provide order in the maritime global commons.
In truth, these norms have also been weakened by American neglect. Even as the Chinese have put pressure on the existing system, the United States has failed to exercise full, effective and active leadership. By its failure to ratify UNCLOS, the United States remains – along with such dubi- ous international companions as Iran and North Korea – fundamentally a spectator in a system that it largely created, that governs international relations and activities in the maritime domain and that has now been accepted by 161 states and the European Union.
Simply stated, accession to the Convention and adherence to its procedure based on a prolongation of Alaska's continental shelf would greatly facilitate American claims to Arctic resources, providing uniformity, predictability, and legal security. Accession also would demonstrate solidarity within the international community, bolstering a faltering reputation, and allow UNCLOS to "function as originally conceived."n369 Most important, ratification would give the U.S. a voice to assert its point of view and a recognized method to exercise jurisdiction within the Arctic.
Continuing to do nothing is an untenable position. It would be foolish and risky to assume that the U.S. can maintain ad infinitum the desultory and passive approach upon which it currently relies.n370 With the everincreasing pressure from coastal States to augment their authority in a manner that would alter the balance of interests struck in the Convention,n371 the United States "needs to be in the game, at the table."n372 Thus, unless UNCLOS is ratified, or a separate Arctic convention is negotiated, the United States will remain tenuously wedged between Scylla and Charybdis, unable to assert a recognized claim of sovereignty, influence international maritime policy, or make substantive changes to parts of the Convention it finds troubling.
One way to interpret the challenges emanating from the PRC is that Beijing resents a legal regime that appears to favor American security at the PRC’s expense. Unable to change the words of UNCLOS, the PRC argues—laboriously, at times—to persuade the United States that the spirit of the law clearly supports Beijing’s interpretation, even where the word of the law may be insufficiently precise.
Hence, Chinese and American analysts of UNCLOS dicker about the meaning of article 58(3), which reads: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.”16 PRC analysts point to the “due regard” clause as evidence of the obligation of foreign states to abide the laws of coastal states and the right of coastal states to restrict military activities in the EEZs off their coasts. American analysts tend to view this conclusion as smuggling into the article a privilege that was explicitly rejected by the drafters of the convention.
It is conceivable, of course, that advocates writing on behalf of the PRC offer interpre- tations of UNCLOS that are in fact meant to reopen and extend negotiations about issues that have, apparently, been settled. By challenging the understanding of what is permissible in the EEZ, the Chinese analysts may be hoping that other states will follow suit, adjusting what would then be seen as customary international law and hoping that the legal justifications they offer will likewise become the new norm. This, indeed, is precisely why some American proponents of UNCLOS argue that the United States must ratify the convention. For example, Rear Adm. Arthur E. Brooks, commander of the Seventeenth Coast Guard District, has said, “While reliance upon customary interna- tional law has served us well for many years, it does not adequately protect our interests. Customary international law is based on the evolving practice of States; it can and does erode over time. The Law of the Sea Convention provides the legal certainty and stabil- ity” that the admiral believes would assure U.S. interests for the long term.17
Further, UNCLOS does not allow any reservations to the treaty other than those explicitly provided for when acceding to the Convention. n341 It is possible to amend the Convention, but only as a full Member State. n342 UNCLOS established a ten year prohibition on amending the Convention subsequent to its entry into force. n343 Since UNCLOS entered into force in 1994, a year after the date of the sixtieth ratification, n344 this moratorium expired on November 16, 2004. n345 Accordingly, only Canada, Denmark, Norway, and Russia currently are able to proffer amendments to UNCLOS regarding Arctic mining. But should any such amendment be ratified before America accedes to the Convention, the U.S. would not be able to avoid its application when signing. The Senate's recalcitrance is based largely on a fear that the U.S. would be unable to play a dominant role within the Convention. Yet by refusing to ratify UNCLOS, the U.S. stands as one voice against the force of the entire Convention within the Arctic. Should [*242] the United States persist in its refusal to ratify UNCLOS, it will find itself in the same or weaker position if and when the CLCS recognizes the sovereign claims of other Arctic States that permit the exploitation of the pole's wealth. Indeed, regardless of American involvement, UNCLOS has established "a de facto regime governing the deep seabed, and U.S. interests are better served by active participation in the UNCLOS regime than by sitting on the sidelines."
The South China Sea is another area of heated contestation where UNCLOS serves as the guidepost for clarity. Of notable importance is the ruling from the South China Sea arbitration that UNCLOS comprehensively allocates rights to maritime areas thereby precluding historic claims like China’s “Nine-Dash Line.” From this principle, the arbitral tribunal systematically refuted China’s extensive claims and actions in the South China Sea beyond the treaty’s carefully crafted limitations. In the view of Washington, these limitations include undue attempts to curtail the freedoms of navigation and overflight in exclusive economic zones (EEZs). Notably, China takes an opposing view and asserts the ability to prohibit foreign military operations in its claimed EEZs. Thus, although the United States remains neutral on competing claims in the South China Sea, Washington has a compelling national security interest in upholding the substance of the arbitral tribunal’s ruling.
Like U.S. claims in the Arctic, the United States’ legal rights in the South China Sea are not academic. As reported by Ronald O’Rourke, a U.S. naval affairs analyst, the EEZ legal dispute between Washington and Beijing has led to significant confrontations between Chinese and U.S. ships and aircraft in and above international waters. For example, in August 2014, a Chinese J-11 fighter dangerously intercepted a U.S. P-8A Poseidon, a naval reconnaissance aircraft, operating in the South China Sea approximately 117 nautical miles east of Hainan Island. Thanks to the arbitral tribunal’s artful debunking of the nature of Chinese-claimed maritime features and related entitlements, there is greater legal clarity on U.S. operational rights in the South China Sea. By formally joining UNCLOS, the United States will be in a stronger position to support the ruling of the arbitral tribunal in the face of Chinese opposition.
As we come closer to the time when amendments to the Convention are contemplated, it is absolutely essential that we have a voice in that process. One of the basic principles I try to engrain in my officers is the idea that in any negotiation, the first person to get his ideas down in writing or, as we say, the first person to get the chalkboard, has a tremendous advantage. One forces others to work from one's own text and ideas. It is important to set the baseline and make others fight away from it. Well, I can say that I do not know how we can be first to the chalkboard if we do not even have a seat at the debate when these amendments come up, if they come up. In our current status as a nonparty, we will not be in the room. We will not have a seat, much less a voice. Even decades ago, I do not think that this would have been an acceptable position for the United States, given our historic reliance on global and maritime commerce. Today, it is completely unacceptable. Ostriches, as they say, may bury their heads in the sand, but they are on land; they are not dependent upon water in a global maritime regime. On the other hand, if we try to bury our head and go it alone in our modern global maritime climate, we will drown.
Additionally, while convention or treaty-based international law is less subject to change and interpretation, it is not immune from change. Parties can collectively agree to change the rule-set in a treaty or adopt particular interpretations of its provisions, in accordance with the terms of the treaty. Given that over 160 nations are currently parties to the Convention, if the rule-set were to change, we might no longer be able to argue that the existing, favorable set of rules under the Convention reflects customary international law. We would be forced to either accept the new rule-set or act as a persistent objector, either of which would come with its own risks. Moreover, our continued status as a non-party allows States an enhanced ability to co-opt the existing text of the Convention and attempt to re-interpret its rules contrary to the original intent that we and other maritime powers helped to negotiate. It would be much more beneficial for the United States to lead the international community in this crucial area of international law from within the Convention, rather than from the outside.
Currently, as a non-party, the United States is not bound by the various provisions of the UNCLOS. At the same time, it also constrains the US to take full advantage of the many benefits it offers and to avoid the increasing costs of being a non-party. In contemporary world, it is implausible and unwise to think that the US can rely on military power alone to enforce its rights, particularly economic rights. Further, US certainly cannot have much influence over development of the law of the sea, stimulated by recent Arctic climate changes, by remaining outside the Convention. The evolving ocean order may be detrimental to the US national interests. By not acceding to the UNCLOS, the US is forgoing an opportunity to extend its sovereign rights over adjoining continental shelf, while simultaneously abdicating an opportunity to play a significant role in formal deliberations in the UNCLOS institutions. These shortcomings are further excerabated by the observed and potentail impacts of climate change in the Arctic region.
In this context, if we consider securing national interests as an outcome of the diplomatic bargain through inter-governmental negotiations concerning a particular ocean issue, then formal participation in the Convention processes is necessary for the US to remain at the helm of the ocean diplomacy in the contemporary world. Hence, it is imperative for the US to accede to the LOS convention, as it is a critical step toward advancing its national interests to ensure economic and strategic interests in ocean space. Imperatives of contemporary developments have given fresh impetus in the US in the direction of ratification of the LOS Convention. This section examines the factors and contemporary developments which have triggered the efforts to get consent of the US Senate to ratify LOS Convention.
The Convention recognizes that various UN subsidiary bodies may serve as competent international organizations for the further Conventional development of the law of the sea. IMO has always been the recognized competent international organization for maritime safety and marine environmental protection. It has now assumed a similar role in port facility and vessel security. Acceding to the Convention will enhance Coast Guard efforts to work in the international community through the International Maritime Organization, the International Labor Organization and other UN subsidiary bodies to improve our security measures and to project our maritime domain awareness, consistent with the Convention’s balance of states’ rights to the uses of the oceans. Specifically, we are working now at IMO to build upon the successes achieved by the United States in that body at the December 2002 diplomatic conference. As you know, that diplomatic conference resulted in the landmark amendments to the SOLAS Convention for vessel and port facility security contained in Chapter XI and the International Ship and Port Facility Security Code. We have on-going efforts in respect of Conference Resolution 10 to enhance our maritime domain awareness through Long Range Tracking of vessels bound for our ports and waters. These negotiations are taking place in the context of the overwhelming number of nations at IMO being parties to the Law of the Sea Convention. Because of this fact, the Law of the Sea Convention provides the framework for the discussions and agreements. Although we have enjoyed success in the international security agreements so far, those negotiations have not always been easy. Further progress will not be as easy to achieve as our past successes. Frankly, the fact that the United States is not a party to the Law of the Sea Convention, when the overwhelming number of our international partners are parties, has occasionally put us in a difficult negotiating position at IMO. It is our judgment that accession to the Convention will put us in a stronger position at the IMO than we currently enjoy.
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The author argues that "it’s time for fellow seafaring states to mount a more vocal, more forceful defense of freedom of the seas" and challenge China's excessive claims.
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