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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Our non-party status is an obstacle that we must overcome in developing virtually any new multilateral maritime instrument. For example, the United States has long played a key role in the IMO to promote maritime safety and effciency and to protect the marine environment in the Arctic, but our leadership position is undermined by our current “outsider” status.
The United States has no “seat at the table” in matters concerning the convention, nor does it have a judge on the Law of the Sea Tribunal, or a decision maker or staff expert on the Commission on the Limits of the Continental Shelf that convenes to review and approve claims to extended continental shelves. Moreover, despite the fact that the 1994 Part XI Implementation Agreement guarantees the United States a permanent seat on the International Seabed Authority and an effective veto on all key decisions of that body, as a nonparty, we simply cannot play that critical role. Without joining the convention, we have no means to formally represent our signifcant maritime interests as a global power, and guide the discussion interpret- ing and developing the law of the sea in the Arctic.
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By any measure, UNCLOS satisfies the criteria for creating new custom. As such, to the extent UNCLOS reflects customary law, the most obvious way to change customary law would be to amend UNCLOS itself. Although amending the treaty could be challenging, UNCLOS provides two processes for amending its general provisions, as well as a separate process for amending the deep seabed mining provisions of the 1994 Agreement.77
UNCLOS’ general provisions can be amended by two separate procedures. A simplified procedure provides that the Secretary General may circulate a request for an amendment and if within 12 months there is no objection, the amendment is adopted. If a party objects, the amendment is rejected.78 Under the conference procedure, a party may propose an amendment and request an amendment conference. Convening the conference requires concurrence by half the state parties within twelve months of the request. After its adoption, an amendment’s entry into force by either procedure requires ratification by two thirds of the state parties.79
Significantly, if the U.S. were a party to UNCLOS, any post-accession amendment would require signature by the President and ratification by the Senate.80 According to the express terms of the treaty, the U.S. could not be involuntarily bound by post-accession changes to the Convention.81
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UNCLOS also guarantees the right to operate and conduct exercises in international waters beyond the territorial sea. Prior to the convention, many coastal states were insisting on the right to exercise complete sovereignty out to as far as 200 miles or more from their land territory. While the convention’s provisions establish the right of coastal states to claim a 200-nm exclusive economic zone (EEZ), they may only exercise sovereign rights over economic activities, such as fishing, the exploration for and production of oil and gas from under the seabed, and the construction of artificial islands. Under the convention, coastal states may not restrict freedom of navigation within the EEZ, including military training exercises, law enforcement activities, and overflight.
These provisions are of great benefit to our national security and global mobility interests. In addition to the global reach of the U.S. Navy and Air Force, Coast Guard units patrol the Persian Gulf, the Caribbean Sea, the eastern Pacific Ocean, and other vital maritime areas. There is a disturbing movement among some coastal states to attempt to transform their EEZs into the equivalent of a territorial sea, in which they may limit critical navigational freedoms. For example, the U.S. Navy is concerned about apparent government attempts in China and Iran to assert excessive control over foreign operations within the exclusive economic zone. The United States must not sit on the sidelines while the international community is working out the nuances of how UNCLOS is to be interpreted and applied.
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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.