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.
Quicktabs: Arguments
The Coast Guard represents the United States at the International Maritime Organization (IMO), the specialized body through which international standards for ship safety, security, and environmental protection are developed and adopted. These standards are negotiated and implemented under the Law of Sea Convention’s framework.
Consequently, we are becoming increasingly challenged in some of these negotiations because we are not a party to that framework. Moreover, the convention encourages international cooperation to enhance the safety and security of all ocean-going ships. The IMO is developing a mandatory Polar Code for Arctic shipping, and the Coast Guard is playing a key role in that effort.8
The fact that some countries that already belong to the convention and are trying to change it through reinterpreting the terms of the treaty shows that those states understand how to convert a struggle for power into a struggle to shape the law.
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, integrating into its maritime strategy elements of “legal warfare” and an effective public diplomacy campaign to capture world public opinion. By declining to become a member of the treaty, the U.S. has so far ceded the opportunity to influence and shape the constitution for the oceans, yielding the stage to China, North Korea and Iran to popularize their restrictive approach to navigational rights. This is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one’s political opponents have staked out objectionable positions on the issues and are engaged in “reinterpreting” its most fundamental provisions.
Opponents seem to think that if the U.S. declines to ratify the Law of the Sea, it will evaporate into the ocean mists. They seem to think that multi-lateral responsibilities in this case can be avoided if we stay out of the Convention. Unlike some treaties, such as the Kyoto Agreement and the Comprehensive Test Ban Treaty, where U.S. non-participation renders the treaty irrelevant or inoperable, the Law of the Sea will continue to form the basis of maritime law regardless of whether the U.S. is a party. International decisions related to national claims on continental shelves beyond 200 miles from our shore, resource exploitation in the open ocean, navigation rights, and other matters will be made in the context of the treaty whether we join or not.
Consequently, the United States cannot insulate itself from the Convention merely by declining to ratify. There are 145 parties to the Convention, including every major industrialized country. The Convention is the accepted standard in international maritime law. Americans who use the ocean and interact with other nations on the ocean, including the Navy, shipping interests, and fisherman, have told me that they already have to contend with provisions of the Law of the Sea on a daily basis. They want the United States to participate in the structures of Law of the Sea to defend their interests and to make sure that other nations respect our rights and claims.
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.
Article 316 of the convention has always required that most amendments be specifically ratified by a state before binding that state. The only exceptions to this requirement are for amendments to the Statute of the International Tribunal of the Law of the Sea, Annex VI, and for amendments relating to provisions on seabed mining. Amendments to Annex VI can only be adopted “without objection” per Article 313 or by consensus. In either case, the United States can block passage if necessary to obtain the advice and con- sent of the Senate. President Reagan’s specific objection regarding amendments to seabed-mining provisions was remedied by the interaction of the 1994 agreement and the convention. Convention Article 161, paragraph 8(d) requires consensus of the ISA council to adopt amendments to Part XI, which contains the seabed-mining provisions. Section 3, paragraph 15(a) of the annex to the 1994 agree- ment provides the United States a permanent seat on the council by virtue of being the largest economy on the date of entry into force of the convention. Together these sections effectively give the United States a “permanent veto” over binding amendments to the seabed provisions of the convention. Similar to concerns regarding distribu- tion of benefits to national liberation movements, the United States must join the convention and claim a seat on the ISA to enjoy these protections against unfavorable amendments. Failure to join the convention and participate in the ISA risks “poisoning” the conven- tion to U.S. accession by the addition of unacceptable amendments.
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.
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.
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."
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.
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.