U.S. will be able to challenge excessive claims more effectively as a party to UNCLOS
U.S. non-party status to UNCLOS means its challenges to excessive claims are less credible than they would otherwise be. Other States are less persuaded to accept its demand that they comply with the rules set forth in the Convention, given that the U.S. has not joined the Convention.
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As regards maritime boundaries, there presently exist about 200 undemarcated claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The end of the Cold War and global expansion of free market economies have created new incentives to resolve these disputes, particularly with regard to offshore oil and natural gas exploration. During the last few years hundreds of licenses, leases or other contracts for exploration rights have been granted in a variety of nations outside the U.S. These countries are eager to determine whether or not hydrocarbons are present in their continental shelves, and disputes over maritime boundaries are obstacles to states and business organizations which prefer certainty in such matters. We have had two such cases here in North America where bilateral efforts have been made to resolve the maritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between the U.S. and Canada in the Beaufort Sea. Both of these initiatives have been driven by promising new petroleum discoveries in the regions. The boundary line with Mexico was resolved in 2000 after a multi-year period of bilateral negotiations. Negotiations with Canada, however, seem to be languishing.
While such bilateral resolution is always an option, the Convention provides stability and recognized international authority, standards and procedures for use in areas of potential boundary dispute, as well as a forum for dealing with such disputes and other issues.
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The time has now come for the United States to become party to this vital convention and regain its leadership position in ocean policy affairs. One benefit: Becoming a party to UNCLOS would greatly enhance homeland security. In his , former Commission on Ocean Policy, called the convention “the foundation of public order of the oceans.” "" U.S. military forces, including Coast Guard units, rely heavily on the many critical freedoms of navigation, over- flight, and operational principles codified in the convention. Under the current legal regime, the United States is not guaranteed such rights. While there is a strong argument that transit passage and archipelagic sea lanes passage have become established rights under customary international law, not all agree.
For example, the Islamic Republic of Iran, whose terri- torial waters overlap the shipping lanes in the critical Strait of Hormuz (through which much of the world’s oil passes) contends that only states that are party to UNCLOS are entitled to the full rights of transit passage.8 Moreover, neither of these critical navigational rights exists under any of the 1958 Geneva Conventions on the Law of the Sea, to which the United States continues to be bound. Becoming a party to the 1982 convention will supersede our obligations under the 1958 conventions and will ensure the entire range and ex- tent of our critical mobility rights in all the ocean waters of the world.
Rising maritime powers across the globe are reinterpreting customary international law to promote their own national interests -- including in ways that may conflict with longstanding maritime norms and American interests. Nowhere is this more apparent than in the South China Sea, where China's outsized claim to the entire region flies in the face of both traditional practices and LOSC. But China is not the only offender. Burma, Thailand, and others are joining China in more restrictive interpretations of maritime navigational rights, including anti-access norms that could constrain the U.S. Navy's ease of access in this crucial maritime domain.
Unfortunately, the United States is not in a position to rebuff these restrictive interpretations and protect the maritime norms that have been so beneficial to the global economy and U.S. security. U.S. failure to ratify the treaty has prevented the United States from taking a seat at the table to avail itself of the convention's established legal frameworks, such as the Law of the Sea Tribunal. And while the United States sits on the sidelines, other countries are engaging in discussions of maritime law, and in some places working toward consensus on issues that could have consequences for the United States for decades. Joining the treaty will allow the United States to lead these important discussions and, more importantly, enable the United States to negotiate with countries from a position of strength to protect the customary practices codified by the convention.
Ratifying LOSC will also strengthen a range of ongoing U.S. security activities. The U.S. Navy and U.S. Coast Guard are our key instruments of power at sea and ratifying LOSC will strengthen their ability to do their job and work with others to protect U.S. interests, including areas such as counter proliferation and counter piracy. More importantly, ratifying the convention would give the U.S. Navy and Coast Guard the strongest legal footing for their actions, including in places like the Strait of Hormuz, where Iran has threatened to close access to the international passageway in direct violation of the convention. As Chairman of the Joint Chiefs of Staff General Martin Dempsey recently said, "It validates the operations we conduct today and realizes our vision for a secure future."
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As we look into the future, our status as a non-party will increasingly disadvantage the United States. Presently, the United States is forced to rely on customary international law as the basis for asserting our rights and freedoms in the maritime domain. In situations where coastal states assert maritime claims that exceed the rights afforded to them by the Convention, USPACOM challenges such claims through a variety of means including the U.S. Freedom of Navigation program, military-to-military communications, and diplomatic protests issued through the State Department. When challenging such excessive claims through military-to- military or diplomatic exchanges, the United States typically cites customary international law and the relevant provisions of the Convention. Unfortunately, because we are not a party to the Convention, our challenges are less credible than they would otherwise be. Other States are less persuaded to accept our demand that they comply with the rules set forth in the Convention, given that we have not joined the Convention ourselves.
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The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms. Being a party to the Convention is even more important because the trend among some coastal states is toward limiting historical navigational and overflight freedoms. Would-be adversaries, or nations that do not support the particular missions or activities we undertake, will be less likely to dispute our lawful use of the sea and air lanes if we are parties to the Convention. We support the Convention because it protects military mobility by codifying favorable transit rights in key international straits, archipelagic waters, and waters adjacent to coastal states where our forces must be able to operate freely.