U.S. not losing ability to guide maritime law by not being party to UNCLOS
Even as a non-party to UNCLOS, the U.S. will still retain its maritime leadership role and can influence the future of the law of the sea through the International Maritime Organization.
Bottom line: any changes or reinterpretation of UNCLOS will more likely occur at the IMO, not the United Nations. Although UNCLOS may be amended through the simplified procedure set out in UNCLOS Article 313, it only takes one State Party to derail that procedure. Article 313(2) provides that “if . . . a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected.” The only other way to amend the Convention is through the convening of a diplomatic conference under Article 312. As we saw with Third United Nations Conference on the Law of the Sea (UNCLOS III), getting consensus on sensitive maritime issues took nine long years and difficult negotiations to complete. Any proposed amendments to the Convention would probably face similar scrutiny by the State Parties at the conference.
UNCLOS proponents have also recently argued that it is imperative that the United States join the Convention before it is amended by the states parties. Failure to do so, they argue, may later force the United States to accept a modified Convention “as is” with amendments that are contrary to U.S. interests.17 Such an argument is untenable at best and ignores a plain reading of Article 316 of the Convention, which provides in part:
4. A State which becomes a Party to this Convention after the entry into force of an amendment . . . shall, failing an expression of a different intention by that State: (a) be considered as a Party to this Convention as so amended; and (b) be considered as a Party to the unamended Convention in relation to any State Party not bound by the amendment (emphasis added).
In other words, if the United State were to accede to UNCLOS after an unfavorable amendment had entered into force, Washington could simply indicate that the United States would not be bound by that amendment. Such efforts to sensationalize the importance of joining UNCLOS by making incorrect statements of the law not only detract from the debate but also significantly undercut the legitimacy of the need to accede to the Convention.
Like Borgerson and PickeringClimate Right for U.S. Joining Law of Sea Convention — Scott G. Borgerson and Ambassador Thomas R. Pickering. — Council on Foreign Relations — Dec 23, 2009 [ More ], Messrs. Cartner and GoldJournal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] argue that, “without ratification of UNCLOS, the US has even less maritime standing in the community of nations, and its contributions will rapidly be marginalized or seen as irrelevant.” U.S. Administrations have been making this same argument for the past 20 years, yet I see no evidence of lost U.S. standing in fora like the International Maritime Organization (IMO), where U.S. leadership remains strong. As discussed in my earlier article, the IMO, not the Meeting of States Parties to UNCLOS, will shape the law of the sea of the future. That is where the United States needs to maintain its focus and level of effort. Under the capable leadership of the U.S. Coast Guard, U.S. delegations have successfully adopted a series of new and amended IMO instruments that enhance maritime safety, maritime security and maritime trade. My only concern is the apparent shift in focus at the IMO from a maritime nation to a coastal nation perspective that fails to balance national security interests with environmental and homeland security interests. This change in focus has been driven, in part, by concerns over strengthening maritime homeland security following 9/11 and by the shift in ocean policy leadership in the United States from NSC to CEQ.37 "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”."