U.S. ratification of UNCLOS would boost U.S. global leadership
U.S. ratification of UNCLOS would boost its leadership standing in a couple of ways. First, by acceeding to the treaty, the U.S. would immediately be able to participate in the discussion around the future of the treaty and participate in maritime forums that it had previously been locked out of. Secondly, by ratifying the treaty, the U.S. would improve its soft power by showing more of a willingness to cooperate multilaterally.
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Additionally, ratification of the Convention will soften the United States’ image and signal much needed goodwill to the international community.110 It has been noted that “[a]nti-Americanism has increased in recent years, and the U.S.’ soft power—its ability to attract others by the legitimacy of U.S. policies and the values that underlie them—is in decline as a result.”111 Commitment to the Convention, which engages much of the international community, would be emphasized by U.S. ratification.112 It also allows other states to place their trust in the U.S. and thus its actions on the seas. This is essential for the United States to maintain its legitimacy and ultimate leverage in the international arena.113
As we have testified elsewhere, the most compelling reasons that support U.S. adherence to the Convention are rooted in restoring U.S. oceans leadership, protecting national interests and enhancing U.S. foreign policy. For example, if the convention is ratified, the United States will be in a stronger position to respond to illegal oceans claims such as the harassment of the USNS Bowditch survey vessel by the People's Republic of China (PRC). The United States will also be able to advance more rapidly with offshore oil and gas development beyond 200 nautical miles (approximately 15 percent of our continental shelf), require U.S. approval for the transfer of seabed revenues and reclaim the prime deep seabed mining sites it has abandoned. Further, adhering to the convention will finally give the United States an opportunity to officially declare its views as to the correct operation of convention provisions. This will end over a decade of self-imposed silence despite efforts by extremist opponents to roll back the gains achieved in the convention.
Critics claim that the United States does not need to ratify the treaty because it already carries the force of customary international law. However, this position is viewed with skepticism by U.S. allies and open defiance by potential adversaries. Beijing, for example, has repeatedly challenged the legal right of the United States and other countries to maintain an offshore naval presence in the region's inner seas, such as the Yellow Sea and South China Sea, and China's own 200-mile exclusive economic zone. And Chinese military power, from its advanced ballistic missile program to its quickly expanding blue-water navy, raises the possibility that the new global center of power could be controlled by China. But the Law of the Sea protects the freedom of navigation of the United States and other countries with the imprimatur of international law. The Convention was completed in 1982, and it establishes the right of naval forces to innocent passage in foreign territorial seas and the right to conduct all offshore military operations-including air and submarine operations beyond 12 nautical miles from the shore-all without seeking permission or providing advance notice or reports to any country. The treaty can thus help prevent China from standing between the United States and its treaty allies Japan, South Korea, and Australia, as well as its new strategic partners, such as India and Vietnam. Japan, for example, is the cornerstone of U.S. interests in stability and security in the region, and is home to the forward-deployed U.S. Seventh Fleet. As the importance of the Pacific theater grows, American ships and aircraft require freedom of the seas to conduct ballistic missile-defense operations against North Korea, reassure allies that the United States is engaged in the region, or respond to another major humanitarian crisis like the 2004 tsunami.
Perhaps most important of all, ratification would prove to be a diplomatic triumph. American power is defined not simply by economic and military might, but by ideals, leadership, strategic vision and international credibility.
Of course, there are those who would prefer that we have nothing to do with the United Nations, who believe that international treaties hurt our national interests and restrain our foreign policy objectives.
All three of us have struggled while working with and through international organizations — they are unwieldy and not always responsive to American interests. But as we see in Libya today, the United Nations and other international alliances are indispensable in providing legitimacy and reinvigorating American partnerships in times of crisis. And they will ensure needed balance as rising powers inevitably challenge America’s economic and military strength.
Last July, Secretary of State Hillary Rodham Clinton gained much respect by reassuring the Southeast Asian nations that the United States strongly supported multilateral efforts to address those territorial disputes in the South China Sea, and denounced China’s heavy-handed, unilateral tactics. But strong American positions like that are ultimately undermined by our failure to ratify the convention; it shows we are not really committed to a clear legal regime for the seas.
For all of these reasons, ratification is more important today than ever before. At a time when America’s military and economic strengths are tested, we must lead on the seas as well as on land.
The “Preeminent Global Power.” The tenth, and final, factor bearing upon the Clinton administration’s decision to sign the Agreement and recommend accession to the Convention was its desire for the nation to retain leadership in maritime affairs generally. Rear Admiral Sehachte went so far as to say that “as the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role in achieving a widely accepted international order to regulate and safeguard the many and diverse activities and interests regarding the world’s oceans."60
The Clinton administration realized that US. refusal to accede to a Convention widely regarded as one of the most important international agreements ever negotiated would raise fundamen tal questions regarding not only the future legal regime applicable to the world's oceans but also the overall role of the United States. By actively promoting “leadership for peace” in the politically and economically important matter of rationalizing maritime laws and regulations, the United States hoped to be able to ensure itself a major role in shaping a posthegemonic global order.61 Conversely, the White House recognized that if the United States remained outside the Convention, it would not be in a position to influence the treaty’s further development and interpretation, transition, and refinement.62 More broadly, continued mute opposition seemed likely not only to jeopardize important national interests in the law of the sea but also to be seen as an implicit rejection ofthe very goal ofworld order through international law. In even less charitable eyes, it might be construed as a belief that unilateralism is a viable policy when backed by military force.63 It appeared that full participation in the Convention offered an opportunity to exercise world leadership in a context far broader than had been possible during the Cold War.
United States allies, almost all of whom are parties to the Convention, would welcome U.S. adherence as a sign of a more effective United States foreign policy. For some years I have chaired the United Nations Advisory Panel of the Amerasinghe Memorial Fellowship on the Law of the Sea in which the participants on the Committee are Permanent Representatives to the United Nations from many countries. Every year our friends and allies ask when we will ratify the Convention, and they express to me their puzzlement as to why we have not acted sooner. In my work around the world in the oceans area I hear this over and over – our friends and allies with powerful common interests in the oceans are astounded and disheartened by the unilateral disengagement from oceans affairs that our non-adherence represents;
Efforts to renegotiate other unacceptable treaties would receive a boost when an important argument now used by other nations against such renegotiation with us is removed. This argument now used against us, for example, in the currently unacceptable International Criminal Court setting, is: “[W]hy renegotiate with the United States when the LOS renegotiation shows the U.S. won’t accept the Convention even if you renegotiate with them and meet all their concerns?” Let me emphasize this point. The United States will be severely damaged in its international engagement if other nations believe that we will not adhere to agreements, whether they are in our interest or not. And this is particularly true after other nations accommodate the United States in all that it asks in a renegotiation and then see United States inaction toward the renegotiated agreement. If we are to maintain our negotiating leverage we must demonstrate that we distinguish between good and bad international agreements and that we accept the good while rejecting the bad; finally
Ratifying UNCLOS would bolster American moral authority and legitimacy on international maritime issues at an important time. Doing so would eliminate one of Beijing’s justifications for rejecting the July 12 international Arbitral Tribunal ruling against China’s claims in the South China Sea—that the U.S. is hypocritical since it is not a party to the treaty. Frankly, it also confounds America’s allies that the U.S. calls for all nations to uphold the values, principles, and rules-based order that has produced security, stability, and prosperity for all, but refuses to ratify UNCLOS. The Commander of the U.S. Pacific Command, Adm. Harry Harris, noted the cost to America’s reputation in a House Armed Services Committee hearing last February: “I think that in the 21st century our moral standing is affected by the fact that we are not a signatory to UNCLOS.”
Becoming a treaty member would help advance U.S. interests in promoting multilateral cooperation on a range of issues globally. For example, it would aid in building coalition partnerships in the Global War on Terrorism and the Proliferation Security Initiative, and help support multinational efforts to combat piracy.
The author argues that UNCLOS is a priority for both the U.S. and the international community and that U.S. ratification will be a clear indication that the U.S. is still willing to play an international leadership role in the Trump administration.
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