The U.S. should not Ratify the United Nations Convention on the Law of the Sea (UNCLOS)
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The United States has lived outside the Convention for the past 30 years without any serious adverse repercussions. To the extent U.S. oceans poli- cy has gone off-course during that period, the missteps have been from self- inflicted wounds, such as the Northern Right Whale MSRe system, the offshore oil drilling moratorium off California, the Northwest Hawaiian Islands PSSA designation, the 2009 Polar Bear critical habitat designation in the rich off-shore oil fields off Alaska, the 2007 and 2009 marine national mon- ument designations in the Pacific, and NOAA’s recent proposal to establish “hot spots” in the ocean to protect marine mammals from sonar use.31 So the question is – can we live without it for another 30 years? If CFR and the Obama Administration really believe that joining the Convention is critical to U.S. national interests, they will have to do a better job at explaining why it is important to become a party to the treaty. Relying on feeble arguments like the ones articulated in the CFR Expert Brief will, on the one hand, not convince the skeptics and, on the other, provide the Convention’s opponents with ample ammunition to undermine the Administration’s position. Let’s face the facts – although the Convention was well-intended when it was originally negotiated, it has failed to achieve many of its intended purposes. Deep seabed mining remains a pipedream. Creeping jurisdiction has not been curtailed – in fact, it has proliferated in some respects. Moreover, rather than reduce tensions, the Convention’s provisions on the EEZ and continental shelf have rekindled long-standing territorial disputes and disputes over fisheries and hydrocarbon deposits, in areas like the South and East China Seas, that have the real potential to result in serious conflict. Until we figure this all out, as long as we retain our leadership role at the IMO, maintain a strong, capable and well-trained Navy, and curtail our own excessive maritime claims in the name of environmental protection, U.S. ocean and national security interests will be preserved.
In sum, the argument against ratification of the whole UNCLOS seems to be overwhelming, but for reasons that have not been fully argued in public. The deep sea-bed mining provisions seem almost irrelevant: the supposed virtues of a free exploitation approach are obviously impossible to implement; the supposed virtues of a cartelized control model of economic development are obviously overstated and, if the states members of the Authority really have an interest in mankind, it seems a safe bet that the United States can participate in modifications of the regime to better suit the needs of the world. Of the other provisions of UNCLOS, some might be useful to the United States and they can continue to be cited as persuasive of the law, even if not formally binding. But many, such as the innocent passage provision and the provisions relating to a special law of the sea tribunal, seem potentially pernicious. Since the UNCLOS must be accepted as a whole or rejected as a whole, rejection seems the wiser course.