UNCLOS treaty helps establish needed rule of law and governance regime for oceans
Since UNCLOS is the basis of modern international law of the sea, the U.S. should ratify the Convention in order to more effectively exercise, maintain, and perpetuate its leadership and to strengthen the normative framework that UNCLOS provides.
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The rule of law matters. Law serves to provide clear expectations as to juris- dictional boundaries and national rights and obligations so necessary for co- operative relations, economic life, and more broadly, human creativity. Thus, we need to know the breadth of the territorial sea, who manages coastal stocks of fish, the rules for straits transit and a myriad of other rules to func- tion cooperatively in the oceans. If some states claim three nautical miles for the territorial sea and others two hundred nautical miles, we simply do not know the basic rules. But of even greater importance, the rule of law serves as a check on power. An oceans space driven by out-of-control national claims and a “might makes right” credo can neither serve community com- mon interests nor restrain conflict. The Law of the Sea Convention is a re- markable achievement in the rule of law—providing both stability and a check on power.
More broadly, the UNCLOS regime is part of the bedrock of the U.S.-led liberal order. As G. John Ikenberry argued in After Victory, since the Congress of Vienna, leading states have employed institutional strategies as mechanisms to establish restraints on arbitrary state power and embed a favorable and resilient international system. In this instance, the Convention and 1994 Agreement were negotiated during a time of U.S. ascendance and Western unity in international affairs. At ASIL, Myron Nordquist, Associate Director of the Center for Oceans Law and Policy, expounded on how UNCLOS reflects important U.S. interests regarding restraints on economic exclusive zone, continental shelf resources, innocent passage across the territorial waters, the passage rules for transiting straits and archipelagic sea lanes, and, of course, the high seas freedoms. U.S. ratification will serve to “lock in” these advantages, negotiated by the United States from a position of primacy in world affairs.
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LOSC provides a formal and consistent framework for the peaceful resolution of maritime disputes. It defines the extent of control nations can legally assert at sea and prescribes procedures to counter excessive maritime claims. Acceding to LOSC will increase our credibility in invoking and enforcing the treaty’s provisions and maximize our influence in the interpretation and application of the law of the sea. Recent interference with our operations in the Western Pacific and rhetoric by Iran to close the Strait of Hormuz underscore the need to use the Convention to clearly identify and respond to violations of international law that seek to constrain access to international waters. As a party to the Convention, we will bolster our position to press the rule of law and maintain the freedom to conduct military activities in these areas.
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This narrative on the importance of international law at sea is at odds with much of the conventional wisdom that characterizes the oceans as an ungoverned legal vacuum.19 The global order of the oceans springs from the architecture of the international law of the sea and of the IMO, and the new maritime security regimes fall within those frameworks. The 1982 Law of the Sea Convention was the first—and remains the foremost—international instrument for realizing collaborative approaches to maritime security. Attempts in 1930, 1958, and 1960 at developing a widely accepted multilateral framework on oceans law had either ended in utter failure or achieved only modest gains. In contrast, UNCLOS contributes directly to international peace and security, by replacing abundant conflicting maritime claims with universally agreed limits on coastal-state sovereignty and jurisdiction. The treaty is anchored in a set of navigational regimes that establish common expectations, delineating the rights and duties of flag, port, and coastal states. Even though some state parties occasionally propose rules that evidence unorthodox misreadings of the convention—such as China’s bogus security claims in the East China and Yellow seas—UNCLOS has served as a stabilizing force, a framework that protects and promotes the principal American interest in freedom of the seas. In doing so the multilateral agreement, which now has more than 155 state parties, picked the international community out of what D. P. O’Connell once described as an “intellectual morass” in which competing opinions and views served as a substitute for law. As a result, the number of controversies in the oceans has declined.
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As regards maritime boundaries, there presently exist about 200 undemarcated claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The end of the Cold War and global expansion of free market economies have created new incentives to resolve these disputes, particularly with regard to offshore oil and natural gas exploration. During the last few years hundreds of licenses, leases or other contracts for exploration rights have been granted in a variety of nations outside the U.S. These countries are eager to determine whether or not hydrocarbons are present in their continental shelves, and disputes over maritime boundaries are obstacles to states and business organizations which prefer certainty in such matters. We have had two such cases here in North America where bilateral efforts have been made to resolve themaritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between the U.S. and Canada in the Beaufort Sea. Both of these initiatives have been driven by promising new petroleum discoveries in the regions. The boundary line with Mexico was resolved in 2000 after a multi-year period of bilateral negotiations. Negotiations with Canada, however, seem to be languishing.
Another area where bilateral boundary discussions are in process is the Barents Sea where Russia and Norway are trying to address a number of serious issues. For a long period of time there has been a moratorium on delimitation for the development of mineral resources in the central part of the Barents, which the Russians believe could be as rich in hydrocarbons as the Caspian.
While such bilateral resolution is always an option, the Convention provides stability and recognized international authority, standards and procedures for use in areas of potential boundary dispute, as well as a forum for dealing with such disputes and other issues.
Boundaries have been the root of many a war throughout the history of civilization. This convention and the acceptance that it has secured throughout the world, largely as the result of U.S. leadership, is truly remarkable. Through 10 years of tenacious negotiations, such understandings and commitments were obtained with over 160 governments. To bring international stability to claims of national jurisdiction in the oceans is the convention's greatest accomplishment.
Vital U.S. security interests are protected by the treaty. Spokesmen from the Defense Department are here to address these issues, so let me note only that in the post-Cold War era the United States must ensure that the lines of communication over and under the sea and through the air are freely available in order to project power to distant regions. Constant vigilance and a willingness to assert our rights is always required. But the job is easier if there is fundamental international agreement on a comprehensive, widely accepted convention. We had better think long and hard before we discard the sea treaty on ocean law--an agreement that contains a consensus on these basic fundamental issues, not only among our long-time NATO allies and the OECD countries, but among the countries of the former Soviet Union, the former Eastern bloc nations, the Middle East countries, and China, among others.
The US also needs to continue to bring its diplomatic power to bear to persuade and encourage parties to pursue non-coercive measures. American persuasive power would be strengthened by a reassertion of the American leadership role over the development of international law of the sea. Since UNCLOS is the basis of modern international law of the sea, the U.S. should ratify the Convention in order to more effectively exercise this leadership from within the ranks, not just from outside them. It is my view that the American policy of neutrality on the outcome of sovereignty disputes is a good one, as long as the dispute is resolved without coercion of any kind. However, the US should not be neutral about disputes over how to divide water space and the resources in them. The US, indeed all countries, have a vital interest in the strength of the methods of UNCLOS for allocating coastal state rights to resource zones. Not history, not power, but international law must be the guide.
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Third, leverage the gravitational power of international norms. The United States should continue to bring its diplomatic power to bear to persuade and encourage parties to pursue diplomatic or institutional measures. Continued American leadership in this regard may also give encouragement to other states inclined to voice similar expectations. American persuasive power would also be strengthened by a reassertion of the American leadership role over the development of international law of the sea. Since UNCLOS is the basis of modern international law of the sea, the U.S. should ratify the Convention in order to more effectively exercise, maintain, and perpetuate its leadership and to strengthen the normative framework that UNCLOS provides.
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Supporting the United States interest in fostering the rule of law in international affairs. Certainly the promotion of a stable rule of law is an important goal of United States foreign policy. A stable rule of law facilitates commerce and investment, reduces the risk of conflict, and lessens the transaction costs inherent in international life. Adherence to the Law of the Sea Convention, one of the most important law- defining international conventions of the Twentieth Century, would signal a continuing commitment to the rule of law as an important foreign policy goal of the United States;