U.S. position as a leader has been damaged by non-participation
U.S. failure to ratify UNCLOS raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order.
Additionally, our partners lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don’t ultimately become party to them, especially as in the case of UNCLOS where the U.S. negotiated aggressively to win valuable concessions and won them.
U.S. presidents do not create and shape multilateral structures because they believe in global governance as an abstract philosophy. They do so because they want to advance the strategic and national security interests of the United States, which, for more than 65 years, have been tied up in the preservation and strengthening of a rules-based international order. These structures are not always perfect. When they are flawed, the tough process of ratification makes sure that problems are addressed. Unfortunately, however, doctrinal statements against the very idea of participation in multilateral organizations and agreements are now routinely undermining U.S. leadership overseas. This may have been an indulgence the United States could afford in the "unipolar" 1990s, but faced with a power transition in Asia, it is a strategic blunder that only emboldens those who long for the end of the U.S.-led international order.
MOORE: Now, let's look for a moment at some of the cost of non-adherence. Non-adherence on a treaty like that, by the way, rather extraordinary. Now, let's look at the cost of non-adherence. The United States has gone from THE leader in the world in oceans policy -- and make no mistake, we were the leader throughout this process -- to simply observer status. The United States has no member on the Continental Shelf Commission making the rules and regulations for the shelf. Not surprisingly, Russia chose basically to go to the commission when the United States was not on it. No wonder it was the first one to go to the commission in its Arctic claim.
The United States does not participate in the international authority in making the rules and regulations for seabed mining. And if we don't join soon, we are at risk in losing all four of our mine sites, again, with the aggregate value of about 1 trillion (dollars) in cooper, nickel, cobalt and manganese. We've already lost one out of the four sites. Russia is out there with a site. India is with a site. China is with a site. Others are with a site. We're about ready to throw them away, because the United States is not adhering to the convention.
In addition to that, the United States is achieving a delay in development on the Continental Shelf oil and gas, because we have no stable legal regime until we join and demarcate the outer area of the boundary. The United States is harmed in its PSI initiative when states such as Malaysia refuse to join with us, because they say we're not a member. The United States is harmed potentially in relation to what we negotiated in losing it simply as a result of others being able to amend the treaty. And if we are not a party, their amendments will then become binding on the treaty on everyone in the world. Whereas, rather interestingly, if we are a party, they cannot amend for us in a way that will be binding on the United States, and the original treated we negotiated would be the one that would be applying to us.
In addition to that, we have difficulties with countries around the world that seek to harm United States' interests. Iran today, for example, says the U.S. has no right to go through Strait of Tehran in transit passage mode because we are, quote, "not a party to the Law of the Sea Convention."
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Formal membership prerogatives aside, given the conflation of UNCLOS and current customary law, U.S. membership in UNCLOS will reinforce customary law and give the U.S. a stronger basis to affect its development in the future. Ironically, U.S. isolationism from UNCLOS serves as the leading example for others who would selectively choose among UNCLOS provisions or even abandon it altogether, thereby eroding customary law. The U.S.’ current posture undermines the very legal principles the U.S. professes to support.
Today, not surprisingly, some find inconsistency and even hypocrisy in the U.S. practice of referring others to the Convention’s obligations without incurring reciprocal treaty obligations.97 U.S. arguments on substantive issues are burdened with the stigma of unilateralism, making it more difficult for states committed to the Convention’s processes and multilateral framework to support underlying U.S. arguments even where there may be basis for substantive agreement."
Further delay in U.S. accession to the Convention, of course, bears risks and costs for the United States. The Convention became open for amendment for the first time in November 2004. This means that our ability to participate in consideration of any such amendments will be limited. The work of the Commission on the Limits of the Continental Shelf is proceeding: and as a non-party to the Convention, the United States is not eligible to submit a claim for the delineation of its broad outer continental shelf, which could hamper efforts to develop the resources of the shelf. More generally, by staying outside the Convention, the United States risks calling into doubt its commitment to the balance of interests codified in the Convention for uses of the oceans. In the long run, this could serve to undermine the order and stability on the oceans fostered by the Convention, to the detriment of U.S. interests and of all users of the oceans.
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The events of the past quarter-century, and particularly the world-changing tragedies of September 2001, have made it more imperative than ever that the United States accept this convention. As the United States seeks a higher level of international cooperation in executing the fight against terror- ism, and as the U.S. Navy, Marine Corps, and Coast Guard look to enhanced levels of global maritime cooperation to safeguard critical interests held in common, the failure of the United States to become a party to the Convention is impeding U.S. strategies and programs. Indeed, the Navy and Coast Guard have taken leadership roles in advocating adoption. ￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼
If the United States has learned anything since 9/11, it is the importance of international cooperation and of having coalition partners in any significant endeavor—from disaster response and humanitarian relief, to peacemaking and peacekeeping, to warfighting. Free and unhampered use of the world’s oceans is a necessary condition for the United States to form coalitions of like-minded nations and for the Navy to operate on and from the sea with coalition navies and pursue the Global Maritime Partnership Initiative (i.e., the 1000-ship navy) and work with the navies of other peace- loving nations.1 Part and parcel to this is for all nations concerned to have a common frame of reference for the legal regime of the oceans.
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For the United States to refuse to adhere to a Convention even after the rest of the world met every single one of our demands for changes to the Convention will severely impact the ability of the United States to negotiate international agreements. I believe this will have a particularly serious effect on our security interests, many of which depend on mobilizing our allies. Certainly, as a sovereign nation, we have every right to negotiate a treaty and then decide not to ratify, but in this instance, where we specified the changes necessary for United States support that were then agreed to by the rest of the world, even some of our closest friends have difficulty understanding our behavior in not moving forward to date. A failure to ratify at this point will have adverse effects for our foreign relations with even some of our closest allies. We are the world’s most powerful military power, but we still need the understanding and support of our friends – and we need to act with consistency and reliability in our foreign policy;
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What is at stake is nothing less than the United States’ position as the world’s leading maritime power. Clearly, U.S. refusal to ratify this Convention, widely regarded as one of the most important international agreements ever negotiated, raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order. This, in turn, makes the United States little more than an outsider looking in at the most comprehensive maritime treaty ever written and perhaps most perniciously, unable to propose any future amendments and less able to effectively counter other states’ proposed changes in treaty law that would be disadvantageous to the United States.6
In his remarks soon after assuming the post of Chief of Naval Operations, Admiral Mullen challenged the Navy “not to accept the status quo.” On the 25th anniversary of the signing of the Law of the Sea Convention, the Navy and its Sea Service partners must take an even more prominent leadership role in mustering public support for this treaty—support so overwhelming that the Senate will be motivated to bring it to a floor vote. To do anything less would be to forgo a viable path to stability and safety at sea and cede the world’s oceans to uncertainty and anarchy.
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Isolationism is not a strategy for victory against terrorism. The threat is global and our engagement must be global. That inevitably means that we must enhance our ability to influence other nations and to multiply United States actions through cooperative actions worldwide. If our country is viewed as simply turning inward and being unwilling to participate internationally despite agreements in which we have clearly served our interests, we will not facilitate such needed assistance from others. United States adherence to the Law of the Sea Convention will be carefully monitored by our allies, all of whom have been urging us to move forward, and it will have an impact on the climate in the war on terrorism, as well as other security and foreign policy objectives of the United States. The view that such [email protected] considerations are unimportant is profoundly unrealistic. The Law of the Sea Convention is low hanging fruit that lets us send a clear message: America will support good international agreements, but it will stand firm against the bad ones. This differentiated message is crucial. If we are viewed as simply opposing all international agreements, no matter how favorable to the United States (as this one truly is), we will have far less ability to multiply our national interests through cooperative actions with others.
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More difficult to measure than what would be gained from U.S. accession is the diplomatic blight on America’s reputation for rejecting a carefully negotiated accord that enjoys overwhelming international consensus, one that has been adjusted specifically to meet the demands put forth by President Reagan two decades ago. Remaining outside the convention undermines U.S. credibility abroad and limits the ability of the United States to achieve its national security objectives. The treaty was negotiated over decades during which American delegations scored important victories. To the dismay of the rest of the world that negotiated the convention with the United States in good faith (and is now proceeding in making ocean policy and setting legal precedent in forums where U.S. influence is diminished), after fifteen years the Senate has yet to have an up or down vote.
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Finally, the linkage between the need for the U.S. to maintain a strong position to defend U.S. and allies interests and the need to ratify UNCLOS has been cited in previous war games with international players at the Naval War College, such as the recent Global Maritime Partnership Game. Players perceived a gradual erosion of U.S. influence among current and future maritime partners that may have negative effects on U.S. interests. The need for U.S. leadership to ratify UNCLOS is warranted in order to prevent the erosion of U.S. influence among partners and in theaters of operation.