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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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.
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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.
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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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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.
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.
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There are more than one hundred illegal, excessive coastal state claims worldwide that purport to impair vital navigation and over- flight rights and freedoms.122 Rejecting the Convention because it is violated by some states and applied imperfectly by others falls into the familiar trap made by the novice of international law— which is to reject international law because all nations do not adhere to all of its standards all of the time. Moreover, rejecting the Convention forgoes the opportunity to use international treaty law as a mechanism to influence change in the domestic laws—and the behavior—of noncompliant states. On the other hand, there is pressure to reshape interpretations of the Convention from the European Commission, vocal NGOs and some member states in ways that undermine freedom of the seas, undercutting national economic and security interests. The contest of ideas to shape future interpretations of the Convention is not unlike international political competition.
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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
Every year that goes by without the U.S. joining the Convention results in deepening our country's submission to ocean laws and practices determined by foreign governments without U.S. input. Our Navy and our ocean industries operate every day in a maritime environment that is increasingly dominated by foreign decision-making. In almost any other context, the Senate would be outraged at subjecting Americans to foreign controls without U.S. input.
What many observers fail to understand about Law of the Sea is that the Convention already forms the basis of maritime law regardless of whether the United States is a party. International decisions related to resource exploitation, navigation rights, and other matters will be made in the context of the Convention whether we join or not. Because of this, there is virtual unanimity in favor of this treaty among people who actually deal with oceans on a daily basis and invest their money in job-creating activities on the oceans.
By not joining the treaty, we are abetting Russian ambitions in the Arctic. We are making the job of our Navy more difficult, despite the longstanding and nearly unanimous pleas of Navy leaders that U.S. participation in Law of the Sea will help them maintain navigational rights more effectively and with less risk to the men and women they command. We are turning our backs on the requests of important American industries that use the oceans and must abide by rules established under this Convention. We are diminishing our chances for energy independence by making U.S. oil and gas exploration in international waters less likely. And we will not even be able to participate in the amendment process to this treaty, which is far more likely to impose new requirements on our Navy and ocean industries if the U.S. is absent.
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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
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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