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.
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.
[ Page 566 ]
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.
[ Page 55 ]
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.
[ Page 55 ]
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.
[ Page 16 ]
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
[ Page 7-8 ]
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.
[ Page 2298 ]
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
[ Page 2 ]
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.
[ Page 9 ]
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.