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.
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Remaining outside LOSC is inconsistent with our principles, our national security strategy and our leadership in commerce and trade. Virtually every major ally of the U.S. is a party to LOSC, as are all other permanent members of the U.N. Security Council and all other Arctic nations. Our absence could provide an excuse for nations to selectively choose among Convention provisions or abandon it altogether, thereby eroding the navigational freedoms we enjoy today. Accession would enhance multilateral operations with our partners and demonstrate a clear commitment to the rule of law for the oceans. For example, under the Convention, warships are authorized to stop and board vessels if they are suspected to be without nationality or engaged in piracy. By joining LOSC, we would “lock in” these authorities as a matter of treaty law and thus strengthen our ability to conduct counter-piracy operations across the globe and provides an important tool to support counter-proliferation efforts, and maritime interdiction of terrorists and illegal traffickers tied to terrorism.
The United States is party to many international agreements - including conventions pertaining to vessel safety, environmental protection and fisheries management - which are based directly on the LOS framework. Those United States representatives who participate in the negotiation of these agreements are among the strongest advocates for accession to the LOS Convention.
For example, the Coast Guard, which has played a lead role in developing international agreements on maritime safety, security and environmental protection at the International Maritime Organization (IMO), and also participates in fisheries negotiations, told our Commission that: "[A] failure to accede to the Convention materially detracts from United States credibility when we seek to advance our various ocean interests based upon Convention principles. Also, as a non-party, we risk losing our ability to influence international oceans policy by leaving important questions of implementation and interpretation to others who may not share our views." In testimony before our Commission, then-Commandant Admiral James Loy, and more recently the current Commandant, Admiral Thomas Collins, both strongly supported United States accession to the LOS Convention.
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There are tangible costs for the United States in not being a party to the Law of the Sea Convention. Until 1998, the United States was entitled to provisional membership in the meetings of the States party to the Convention, but since then it can be present only as an observer. Its non-accession has had and continues to have real costs. It is ineligible to nominate members to the Law of the Sea Tribunal; it has forfeited (as of March 2007) the opportunity to nominate members to the Commission on the Limits of the Continental Shelf until the next election in 2012,58 and it cannot occupy its guaranteed seat on the Council of the Seabed Authority and the powerful Finance Committee. The marine scientific research institutions continue to suffer from long delays in gaining approval for research in foreign EEZs, which would be alleviated by the Convention's implied consent provisions were the United States a party. Perhaps as damaging as the concrete benefits of the Convention previously discussed is the harm to the credibility of the United States in international relations by failing to accede to the Convention. After all, we laid out before the world in President Reagan's 1982 statements our objections to the Convention and what would be required for the United States to become a party. By adopting the 1994 Agreement, the international community gave us what we demanded as conditions for our accession, and now, thirteen years later, the United States has still not become a party.
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A fifth reason arguing for United States accession to the Convention is our position as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world's leading maritime power. Clearly, U.S. refusal to ultimately accede to a Convention widely regarded as one of the most important agreements ever negotiated would raise fundamental questions regarding not only the future legal regime applicable to the world's oceans, but also the leadership of the United States with re- spect to the promotion of international law and order. The regime of the Law of the Sea Convention presents a superb opportunity for the Untied States to provide world leader- ship in an area of increasing importance to the community of nations. Most importantly, by remaining outside the Convention, the United States would not be in a position to influence the Convention's further development and interpretation as it goes through a critical period of transition and refinement.
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Finally, there are numerous incentives for the United States to join the Convention and discontinue its exclusive reliance on customary international law.382 By becoming a member, the United States would be more credible when it invokes treaty provisions-for instance, when it is in a property "bilateral disagreement."383 As a member of UNCLOS, the United States would be able to vote for individuals that would in fact sit on the Law of the Sea Tribunal to ensure that interpretation of the Convention is favorable to U.S. policy.384 As it relates to the freedom of the high seas, the United States would be able to curtail certain proposals that would adversely affect U.S. military or navigational interests.385
The international community is on a fast track and is continuously changing directions. To maintain its economic dominance in the international community, the United States must join the Convention on the Law of the Sea.386 It is in the best economic, military, and environmental interests for the United States to join the Convention, and adherence to its guidelines would encourage others to join, resulting in more stability in the ￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼laws governing the ocean.
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A final reason arguing for U.S. accession to the convention is the position of the United States as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world's leading oceanic state. Clearly, U.S. refusal to ultimately accede to a convention widely regarded as one of the most important agreements ever negotiated would raise fundamental questions regarding not only the future legal regime applicable to the world's oceans, but also the leadership of the United States with respect to the promotion of international law and order.37 The regime of the Law of the Sea Convention presents a superb opportunity for the United States to provide world leadership in an area of increasing importance to the community of nations.38
By actively promoting "leadership for peace" in the politically and economically important area of an orderly codification of maritime laws and regulations, the United States could assure itself a major role in shaping a post-hegemonic global order.39 Conversely, U.S. opposition to the convention would not only jeopardize significant national interests in the law of the sea without substantially offsetting benefits, but also could constitute an implicit rejection of the promotion of world order through international law as a foreign policy goal. Viewed less charitably, failure of the United States to fully support the convention could reflect a belief that unilateralism is a viable policy alternative when backed by military force.40 Conversely, full participation in the Law of the Sea Convention ultimately provides the United States with an opportunity to exercise world leadership within the context of far broader international activity and participation than was possible during the cold war.
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The US is, of course, the world's sole superpower and its pre-eminent maritime power. Accordingly, the US clearly plays a leading role in global affairs. The US also perceives itself to be a world leader and is keen to project and promote this image and reality. The fact that the US is not a party to the Convention undermines that leadership role in the maritime sphere. Critically, when the United States comments on maritime issues of concern to it, such as regarding excessive maritime claims through the FON program or on the South China Sea disputes for instance, a frequently raised objection to Washington's interventions is that the US has not signed up to UNCLOS. This serves to compromise the credibility and authority of the US in global ocean affairs. US accession would therefore remove a somewhat irrelevant, but far from unimportant barrier to the United States playing a strong leadership role as the contemporary law of the sea. The counterpoint here is that by choosing not to participate the US is abdicating or at least undermining its credential to a leadership role in international ocean affairs. The rationale for ratification on this front alone is therefore, it is submitted, persuasive.
"Time for the United States to Join the Party? Prospects for US Ratification of the United Nations Convention on the Law of the Sea
." International Zeitschrift
. Vol. 8, No. 3 (December 2012): 1-6. [ More (4 quotes) ]
The United States strictly adheres to the provisions of the Law of the Sea Convention. We understand the value of upholding international law. By establishing universal standards for global issues, we give diplomacy a better chance of succeeding and help ensure that a large country like China won’t simply steamroll smaller neighbors when disagreements arise. Ordinarily, the United States would be in a good position to urge governments to stick to their obligations and abide by the Tribunal’s decision.
Except we’re not party to the Law of the Sea Convention. By our own choosing, we are shut out of the process. Despite the fact that the United States champions freedom of navigation and the international rule of law, our Navy carries out those policies around the world and has long supported joining the Convention, and the Convention has won broad bipartisan support, a handful of Republican Senators have undercut America’s ability to stand up for our own values and interests. This is particularly troubling at a time when one of the pivotal international concerns of the 21st century is coming to a head.
American leaders will continue to support the Tribunal and encourage governments to abide by its decision. But we can and should be doing more, to include ratifying the Convention itself. The stakes are simply too high for the United States to take itself out of the lineup. China is working to deepen divisions and consolidate its power in Asia. If China gets its way, it will derail efforts to establish a rules-based order in the Asia-Pacific, worsen a potentially dangerous situation in the South China Sea, and undermine America’s ability to ensure maritime stability around the world.
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This is exactly the problem with the U.S. position on UNCLOS and the disconnect between stated intentions and the ultimate failure to ratify. As John B. Bellinger III points out, treaty 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.”48 Specifically what Mr. Bellinger is referring to is the loss of U.S. credibility, or in other words the rightness of actions. Furthermore, because the United States is so successful at negotiating treaties, when representatives push hard for and are in turn granted changes within the document (as is the case with the 1994 agreement on implementation), but then ultimately fail to accede, it is very frustrating for the other nations involved.49 Again, this erodes U.S credibility and in turn legitimacy of action. With this in mind, the U.S. Senate must take the earliest opportunity to harvest this “low hanging fruit” and free PACOM from a barrier that detracts from shaping operations in the South China Sea (SCS).50
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The US is therefore increasingly not being allowed in the game because it mistakenly believes that its punched ticket from the last game is good for this one. Were the US to ratify UNCLOS 1982 it would be in the current global maritime game with no protest or recalcitrance from any other state on those grounds. It follows that US policy positions unrelated to ratification, as argued by the author, would have more wins and fewer losses with commensurate better understanding of how world trade works. For it is the good order of law which facilitates trade. And trade not ideology is the engine that powers the modern, interdependent world. As we are sure the author would agree, trade is more efficient when regulatory uncertainty is reduced. UNCLOS 1982, whatever its minor flaws may be, provides muchneeded order in ocean governance and management and removes many of the uncertainties that have existed since the Grotius-Selden debate almost three centuries ago. Indeed, as the author undoubtedly recognizes, the vast majority of global trade moves on the oceans. This is, without question, one of the principal reasons underlying the existence of UNCLOS 1982 and its predecessors. We ask and not rhetorically that if trade is not the fundamental basis for national security, then what is? Global trade will continue in the rest of the world with or without US participation. It will prosper for all states including the US with a predictable, global regulatory system such as UNCLOS 1982. It will suffer, however, when regulatory fragmentation through unilateral action of a state takes place.
"Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”
." Journal of Maritime Law & Commerce
. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ]