The U.S. would not Benefit from Ratification of UNCLOS
While UNCLOS has effectively codified many aspects of traditional law and has successfully incorporated several modern issues, such as environment, fisheries, and coastal zone management, these can be regarded as "nice to have" accomplishments but are by no means essential to the political, economic, or military security of the United States. In fact, one of the principal reasons for the establishment of UNCLOS III was to resolve U.S. conflicts with several Latin American states over territorial sea claims in the Pacific Ocean and the repeated seizure of U.S. tuna boats and their crews. After more than ten years of UNCLOS III, ten years of post-UNCLOS III ratification debate, and two more years of negotiation of the agreement, Nicaragua, Peru, Ecuador, and El Salvador still claim 200-mile territorial seas and refuse to become parties to the convention.
With regard to Nicaragua and Peru, their abstention could be due to their claim to the 200-mile territorial sea, which is not in conformity with the Convention.
The reasons for the absence or non-participation of these states are not clear. Only Turkey explained that it had some difficulties with certain provisions of the Convention. Ecuador and El Salvador may have chosen not to vote because of their claim to the 200-mile territorial sea. (Hayashi, 5-6)
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However, my main purpose for focusing on national security interests was to highlight the fact that the constituency that needs to be convinced to change its position on U.S. accession to the Convention is focused solely on national security. The common thread throughout all of the 60-plus UNCLOS briefings I presented on the Hill was – what affect will accession have on our national security? We did not have to convince the shipping industry or the oil and gas industry or the environmentalists. Those groups had already expressed their support for the Convention. We did, however, have to convince conservative senators that U.S. accession would not harm U.S. national security. The same remains true today – supporters of the Convention must be prepared to demonstrate what new benefits the United States will acquire by joining the Convention that it already does not enjoy. Those benefits, however, are difficult to articulate since most of the impor- tant ones from a national security perspective – e.g., transit passage, archi- pelagic sea lanes passage, high seas freedoms of navigation and overflight and resource rights in the EEZ and continental shelf – are already guaranteed to the United States under customary international law. Therefore, while I agree with my critics that U.S. accession to UNCLOS will not have a negative effect on U.S. national security (i.e., coastal states will continue to make excessive maritime claims whether the United States is a party to the Convention or not), by the same token, failure to join the Convention will not necessarily undermine U.S. national security now or in the foreseeable future.