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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UNCLOS parties would have several options if they desired to clarify this point. The International Tribunal for the Law of the Sea (ITLOS) has competence to issue an advisory opinion on the provision’s meaning.91 However, ITLOS lacks competence to try suspected pirates themselves.92 Despite calls to permit such trials through amendment to the statute of ITLOS or additional UNCLOS protocols,93 converting a judicial body initially designed to settle interpretive disputes among states relating to UNCLOS into a criminal tribunal remains unprecedented and impractical.94 UNCLOS article 105 would nonetheless preclude this possibility at ITLOS and other inter- national courts, such as the International Criminal Court, which also lack the mandate to hear piracy cases.95 Parties could alternatively amend UNCLOS to suit their needs through formal procedure by convening a consensus-seeking conference, or through simplified procedure, followed by adoption of an amendment and signature, ratification, or accession to it.96
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Protecting American Interests: Because we are the main global maritime power, our interests demand that we consider the global effect of the Convention’s rules and their interpretations; there are a number of issues that are of greater concern to us than to most other countries. It is not prudent for us to sit idly by on the sidelines and rely on others to protect our global interests from the inside. For example, despite our close security relationship with most of its member states, there are disturbing signs that the European Community may try to shift the Convention’s balance in a sharply coastal direction in derogation of the freedom of navigation beyond the territorial sea and free transit of international straits.
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As with most comprehensive legal framework documents, UNCLOS includes many broadly worded provisions susceptible to differing interpretations. Not surprisingly, while many of UNCLOS' provisions reflect customary international law, contributed to the rise of significant international political and military rifts. For example, as of 1997, over forty coastal nations-including strategically significant nations such as India and China-have claimed the right to restrict the "innocent passage" of foreign warships through their territorial waters on the basis of prior notice, consent, and/or means of propulsion." Similarly, a minority of coastal states again including China have claimed and/or sought to enforce restrictions or prohibitions on foreign military activities, such as the collection of military intelligence or the conduct of military exercises, within their exclusive economic zones (EEZs). states likewise consider such restrictions contrary to UNCLOS . However, an adequate remedy is not readily available, as judicial and tribunal decisions have yet to definitively resolve these divergent positions. Instead, the relevant currency in the ongoing "negotiation" over the contours of UNCLOS is comprised of relevant state practice, such as diplomatic statements, naval operational assertions, domestic implementing legislation, and authoritative policy documents; institutional policy consensus from, for example, the differing interpretations of key provisions have The United States and a majority of UNCLOS International Law of the Sea Tribunal (ITLOS), the UNCLOS and the UNCLOS Commission on the Limits of the Continental Shelf (CLCS); 56 and the writings of international legal scholars.
The real threat to U.S. oceans interests is not the United Nations, but the relentless campaign by nongovernmental organizations (NGOs) such as Greenpeace in conjunction with certain coastal countries, including close U.S. allies such as Canada and Australia, to unilaterally impose maritime rules to restrict international shipping on the oceans and aircraft overflight of the seas for purported environmental reasons. For example, a group of Western European states pushed for a ban on single-hull tankers from a vast area of international waters in the Eastern Atlantic, and in 2006 the European Commission suggested in a report that the navigational freedoms in the Law of the Sea Convention should be revised to expand coastal state jurisdiction over transiting vessels.
John Bolton, former U.S. ambassador to the United Nations, describes this type of partnership between NGOs and some like-minded governments as norming ... the idea that the U.S. should base its decisions on some kind of international consensus, rather than making its decisions as a constitutional democracy. He adds, It is a way in which the Europeans and their left-wing friends here and elsewhere try and constrain U.S. sovereignty. The rules emerging from this process weaken the navigational freedoms the United States relies on to ensure submarines can transit through the world's choke points and ships serving as sea bases in coastal waters can launch military operations.
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For most U.S. observers, however, U.S. participation in Convention institutions and meetings of States Parties can help shape the future direction of the law of the sea in ways favorable to U.S. commercial, fishing, environmental, and military interests. The law of the sea will inevitably change through a wide variety of mechanisms. Some proposals for change could be made from "within" the Convention system-perhaps by formal amendments,63 or even potentially at meetings of States Parties.64 America's taking its place as a State Party to the Convention can help promote U.S. views. For example, its participation in the work of the ISA can help assure that the Authority does not attempt to stretch its mandate to impinge on what many assert to be the freedom to harvest deep-sea-vent living organisms, which are important resources in biotechnology.65 As a State Party, the U.S. would also have more leverage with respect to the Article 311 obligation that subsequent agreements between States Parties be compatible with the66 Convention.
Similarly, less friendly countries such as China, Iran, and North Korea have sought to impose control over the ocean out to 200 miles off their coastlines by establishing security zones. Both types of proposed coastal-state regulations place at risk U.S. economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing coastal states at their whim to deny use of the global commons. These proposed restrictions by coastal states attempt to diminish or impair the right of freedom of navigation enjoyed by mariners for two millennia.
All of the countries mentioned above already belong to or have signed the convention, but are trying to change it through reinterpreting its terms. China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high-seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law. By declining to become a member of the treaty, the United States has so far ceded the opportunity to influence and shape international norms, thereby yielding to states trying to popularize their restrictive approach to navigational rights.
South Carolina Sen. Jim DeMint, when leading the opposition to the treaty as it was being debated in 2007, said We know from international groups like the U.N. that many signers of these agreements do not act in the best interest of the United States or the world. He is correct, of course, but the United States' failure to ratify only empowers these states to set maritime rules without a U.S. seat at the table. DeMint's argument is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one's political opponents have already staked out objectionable positions.
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Among the benefits the U.S. will receive from UNCLOS membership is the ability to have a judge of U.S. nationality serve on the ITLOS and the right to participate in the amendment process of the treaty as provided for in Article 312. The power to amend the treaty is vested in the parties 10 years after the treaty has entered into force.18 The 10-year anniversary was November 16, 2004. The U.S. would be entering the game just as amendments become possible. Admittedly, the question of amendment to such a comprehensive legal instrument is fraught with difficulties, but U.S. membership ensures that any future amendments will only be adopted when the U.S. is a full participant in the process.
The example of China and Russia's flouting of the convention's norms also presents the possibility that the treaty could be renegotiated to become more favorable to those countries' interests. UNCLOS as currently written is extremely favorable to U.S. interests, codifying the rights of freedom of navigation and passage that are important to maintaining its global power status, according to Titley.
“The real strategic threat for us not being a [party to UNCLOS] is if anybody at some point wants to change the rules of the game … we're not going to have a seat at that table,” Titley said. UNCLOS “basically codifies up a world in which the U.S. is kind of the number one dog. And so now by not ratifying this, as the world changes, and maybe if that situation changes, we're not even going to be in the room when—if this ever gets looked at again. … It's frankly pretty hard to see that another [international legal] regime would be as friendly to U.S. interests as is UNCLOS. That's a real danger.”
Another key risk connected with the United States not being a party to the treaty is that the treaty itself is weakened by lack of U.S. participation, because it is important as a big coastal state and a major economy, according to Jensen.
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US accession to the UNCLOS regime would also enable and facilitate full US participation in how the law of the sea is further defined, applied, and modified. The 1982 Convention marked the end of the Third UN Conference on the Law of the Sea (UNCLOS III). It did not mark the cessation of the evolution and development of this branch of international law. And yet, the international community, by and large, has decided to pursue this process of evolution and development in the context of the UNCLOS regime. This alone speaks to the importance of securing the participation of all major ocean states. US non-participation compromises this. In essence, US non- participation denies the US a 'place at the table' within key institutions created as a consequence of the Convention and related agreements. For example, as a non-party the US has no representative on the International Tribunal on the Law of the Sea (ITLOS) and is ineligible to put forward a member of the Commission on the Limits of the Continental Shelf (CLCS). This is surely problematic from a US perspective. As noted above, the Convention is now widely accepted as the basis for global oceans governance yet the law of the sea continues to evolve and change. Without US input, the international law of the sea is likely to be shaped in a manner that does not fully take into account US national interests. This is why complacent arguments that the US can take advantage of the benefits that the Convention offers on the basis that it is reflective of customary international law, whilst avoiding the costs of participation are flawed. Such a strategy represents a distinct abdication of responsibility that carries with it the long-term risk that international custom will ultimately run counter to US interests.
"Time for the United States to Join the Party? Prospects for US Ratification of the United Nations Convention on the Law of the Sea
." International Zeitschrift
. Vol. 8, No. 3 (December 2012): 1-6. [ More (4 quotes) ]
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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.
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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