U.S. ratification of UNCLOS would benefit marine conservation efforts
U.S. ratification of UNCLOS will have a positive effect on the environment as the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support
[ Page 9 ]
The U.S. currently regulates certain industrial facilities such as seafood processing vessels, aquaculture facility discharges, and offshore oil and gas operations under the permitting requirements of Sections 402 and 403 of the Clean Water Act. The U.S. also regulates certain cruise ship operations in the waters around Alaska. Additional measures will likely be necessary to address environmental issues arising from other industrial activities on vessels.
UNCLOS, if interpreted too narrowly, could constrain the United States’ ability to adopt and enforce these important measures. As noted earlier, Article 21.2 imposes limits on laws and regulations relating to “innocent passage.” Article 211 also raises similar issues. We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be included with the instrument of accession. The statement must clarify that these vessels are not engaging in or innocent passage as defined in Articles 18 and 19, and that the U.S. is free to regulate vessels operating in a capacity other than innocent passage as necessary to protect against polluting discharges from these vessels.
[ Page 8-9 ]
Sustainability. The Convention also supports U.S. interests in the health of the world’s oceans and the living resources they contain. It addresses marine pollution from
a variety of sources, including ocean dumping and operational discharges from vessels. The framework appropriately balances the interests of the coastal State in protection of the marine environment and its natural resources with the navigational rights and freedoms of all States. This framework, among other things, supports vital economic activities off the coast of the United States. Further, the United States has stringent laws regulating protection of the marine environment, and we would be in a stronger position as a party to the Convention as we encourage other countries to follow suit.
The Convention also promotes the conservation of various marine resources. Indeed, U.S. ocean resource-related industries strongly support U.S. accession to the Convention. U.S. fishermen, for example, want their government to be in the strongest possible position to encourage other governments to hold their fishermen to the same standards we are already following, under the Convention and under the Fish Stocks Agreement that elaborates the Convention’s provisions on straddling fish stocks and highly migratory fish stocks.
[ Page 13 ]
The Law of the Sea Convention provides strong protection for the marine environment. Indeed, the Rio Conference on the Environment accepted Part XII of the Convention as the core environmental provisions for the world’s oceans. Not surprisingly, American environmental groups overwhelmingly support adherence to the Convention. Indeed, in one case, that of the protection of marine mammals, the Convention embodies the initiative of a United States environmental NGO. Thus, Article 65 of the Convention on the protection of marine mammals was negotiated following important work done by the Connecticut Cetacean Society. United States influence was also felt in requirements concerning monitoring, publication of reports, and assessment of potential effects of activities. The United States was further successful in avoiding any environmental double standard in the world’s oceans.
Remarkably, the important new environmental provisions of the Convention are sufficiently balanced that they enjoy the support of all United States oceans interests. Support for this Convention is that rare public policy issue on which both industry and environmental groups strongly agree.
[ Page 922 ]
UNCLOS is now international law. As such, parties are bound by the obligations and duties imposed by the "constitution for the oceans." Arguably, even states that have not formally ratified the treaty are bound due to its status as customary international law.
UNCLOS requires states to cooperate globally to "protect and preserve the marine environment." As a compromise package, UNCLOS carefully balances the need for states to maintain sovereignty over their territorial waters and EEZs with the global need to manage effectively the ocean ecosystem. Because such careful balancing is necessary to preserve global harmony and provide effective resource management, the participants in UNCLOS agreed to rigid dispute settlement procedures that are both compulsory and binding.
UNCLOS resulted from a long, arduous negotiation, in which the parties present compromised on numerous policies to achieve a global balance. The United States played a major role in the negotiations and greatly influenced the resulting policies.
While the United States took a leading role in creating UNCLOS, it is not one of the 165 countries that have ratified the treaty. At the Economist World Oceans Summit in February, Secretary Kerry criticized the U.S. Senate for inaction—while adding that the United States is nonetheless “committed to living by the law of the sea even though it isn’t ratified.” But there is no substitute for ratification, which would benefit the United States for a host of reasons, both practical and symbolic. One of the most important is the signal it would send to the rest of the world. In his May speech at West Point, President Obama once again called for Senate action on UNCLOS. “American influence is always stronger when we lead by example,” he explained, “we can’t exempt ourselves from the rules that apply to everybody else.”
Preventing the continued destruction of three quarters of our planet will require inspired U.S. leadership of the sort that was on display last week in Washington. The health of the ocean is essential for the survival not only of sea life, but of human life. As oceanographer Jacques Cousteau warned in 1981, “[the ocean] is man’s only hope. …we are all in the same boat.”
[ Page 30 ]
The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles. They create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life.
Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention.
[ Page 6 ]
The Law of the Sea Convention provides a comprehensive framework for international cooperation to protect the marine environment. It imposes minimum requirements—all of which are already being met by the United States—to protect and preserve the marine environment. Under the Convention, states are required to take measures to address pollution from vessels and landbased sources, to prevent the introduction of alien or invasive species, and to conserve and manage coastal fisheries.
The Convention also requires states to work together to protect the oceans. States are required to cooperate in the management of high seas fish stocks, as well as stocks that migrate between the high seas and exclusive economic zones, setting the stage for regional agreements essential to managing ocean fisheries. States are also required to work together to protect marine mammals, which are given special protections under the Convention.
The standards for environmental protection set forth in the Convention work strongly to the advantage of the United States, which has already met and in most cases significantly exceeded these standards but necessarily depends on actions by other nations to protect the marine environment.
[ Page 482 ]
By most accounts, U.S. ratification of UNCLOS will have a positive effect on the environment. This is not because the U.S. will be binding itself to any new substantive norms. On the contrary, most substantive provisions of UNCLOS are already part of U.S. policy and have been for many years. Despite this, the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support.
[ Page 77 ]
A fourth reason arguing for United States accession to the convention is the building global consensus on management of the environment. Part XII of the convention deals extensively with the protection and preservation of the marine environment. Part XII covers a wide array of issues running from general principles, to global and regional cooperation, to technical assistance, to monitoring and environmental assessment, to responsibility and liability." The inclusion of strong environmental protection measures in the convention was an early and enduring goal of the United States. Given the fact that the language of Part XII creates a diffuse but effective international mechanism for control of a significant amount of marine pollution, it would seem especially advantageous for the United States to agree to the convention in order to ensure the maintenance of a stable regime for environmental protection.19
Rear Admiral William Schachte, former judge advocate general of the Navy and active participant with the U.S. delegation to the Third U.N. Conference on the Law of the Sea (UNCLOS III), has pointed out that the convention provides a unique, outstanding framework for addressing and resolving environmental concerns. He notes that the convention is far superior to any of the numerous conventions and protocols addressing marine pollution that have been attempted over the past 4 decades and that it strikes a delicate balance on environmental issues.20
[ Page 30-31 ]
Leadership in Environmental Concerns. A fourth reason for the change in the American attitude toward the Convention was a new global attitude toward management of the environment. Part XII of the Convention deals extensively with the protection and preservation of the marine environment, covering a wide array of issues, from general principles to global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liability.31 The inclusion of strong environmental protection measures in the Convention was an earlier and enduring goal of the United States. In the decade following its completion, the U.S., along with many other nations, became even more interested in preserving the environment, to the point that such concerns in many cases supplanted economic considerations.32 Given that Part XII creates an effective, if diffuse, international mechanism for controlling marine pollution and establishes a symbiotic relationship between the Convention and other issue-specific agreements, the Clinton administration decided that agreeing to the Convention would ensure a stable regime for environmental protection.33
A U.N. working group is discussing a proposed "international mechanism" for the protection of oceans. Any such treaty or convention will be a new implementing agreement under the 1994 U.N. Convention on the Law of the Sea (UNCLOS).
[ More ]