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.
Quicktabs: Arguments
The 1982 Convention on the Law of the Sea may seem an obscure agreement to nonexperts. That is not the case. The convention is a carefully negotiated international agreement numbering several hundred pages that covers a host of measurable national security, economic, and environmental issues of vital strategic importance to the United States. By remaining a nonparty to the convention, the United States not only forfeits these concrete interests but also undermines something more intangible: the legitimacy of U.S. leadership and its international repu- tation. For example, American pleas for other nations to follow pollution and fishing agreements ring empty when the United States visibly rejects the Law of the Sea Convention. Remaining outside the convention also hurts its diplomatic hand in other international forums, as well as the perceptions of other states about U.S. commitments to multilateral solutions. As former Supreme Court justice Sandra Day O’Connor has noted, “The decision not to sign on to legal frameworks the rest of the world supports is central to the decline of American influence around the world.”27
The last point I would like to address is that of a resumption of a clear leadership role for the United States in international oceans policy affairs—an area where we have so much at stake.
As the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role. The United States can lead the movement to the achievement of a widely accepted international order, regulating and safeguarding the diverse activities and interests regarding the world’s oceans. The Convention affords us the opportunity to lead in a way that protects and promotes U.S. national security interests. To ensure a leadership role in this important arena, the United States must become a party to the Convention.
By remaining outside the Convention, our long-standing leadership role in international ocean affairs, and in fora such as the International Maritime Organization, would be further eroded. Moreover, as an outsider looking in, we would not be in a position to influence the Convention’s further development and interpretation. In effect, as mentioned earlier, by refusing to become a Party to the Convention, the only way we could seek to influence changes in the LOS regime would be through unilateral action, and that could lead to further destabilization and increased international friction.
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.
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.
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.