U.S. already abides by UNCLOS as a matter of customary international law and domestic policy
Even though U.S. has not ratified UNCLOS, it still has committed itself to abiding by its principles in two ways: through numerous policy statements and laws drafted in accordance with UNCLOS and committing the U.S. to abiding by it; and due to the fact that the Law of the Sea has become customary international law.
[ Page 242-243 ]
Perhaps the most dangerous threat to American sovereignty in the Arctic is the enforceability of UNCLOS as part of American law, either as positive treaty based domestic law or customary international law. While the reach of the Convention may be debated under both headings to some extent, it cannot help but affect the United States' Arctic designs.
Although still pending ratification, at times UNCLOS may be assigned virtually the same legal status as if it were a properly ratified treaty, albeit in a roundabout and piecemeal fashion. If President Reagan's culling UNCLOS for acceptable provisions bound the United States to a majority of the Convention's provisions, then President Clinton committed the United States to the remainder, including the amended Part XI mining regime, by signing the Convention in 1994 in spite of an obstinate Senate.
The court in United States v. Royal Caribbean Cruises bore this out, holding that UNCLOS "carried the weight of law from the date of its submission by ... President [Clinton] to the Senate."n348 In finding that the Convention applied to an oil spill within U.S. waters, the court reasoned that the United States was obliged to honor the agreement to which the executive branch has tentatively made the United States a party, and that the submission of the treaty alone to the Senate was indicative of the America's "ultimate intention" to be bound by the Convention.n349 Following this line of reasoning, albeit to somewhat of an illogical extreme, the Supremacy Clause would place UNCLOS atop the hierarchy of domestic laws in spite of nonratification.
Even acknowledging the suspect reasoning of this theory, emphasis still will fall to customary practice to determine the extent of U.S. presence in the Arctic, which could well lead to unsatisfying results. Indeed, America's ambiguous relationship to UNCLOS has done little to affect the Convention's operation, its actions actually facilitating its application as binding customary law.
"Implications of Global Warming on State Sovereignty and Arctic Resources under the United Nations Convention on the Law of the Sea: How the Arctic is no Longer Communis Omnium Naturali Jure
." Richmond Journal of Global Law & Business
. Vol. 8. (Winter 2008): 195-248. [ More (12 quotes) ]
[ Page 38-39 ]
US accession to the Law of the Sea Convention in the immediate future might not be possible. Yet US presidents of both political parties have taken the maximum possible action within their legal authority to respect the law of the sea, by declaring that many of the rules contained in the Convention reflect customary international law, and by acting accordingly. Moreover, US military commanders and forces are instructed to adhere to customary international law, including that re ected in the Law of the Sea Convention. On a more practical level, this author always has a copy of the Convention on his office desk and routinely relies upon many of the rules of law contained therein as a reflection of customary international law when advising his military commander-clients and their staffs on law of the sea matters.
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Ironically, the United States is currently preparing its own extended-continental-shelf claims in the Arctic even though it is not party to UNCLOS, which provides the mechanism for submitting such claims. American legal rationale and liabilities pertaining to this are published on the Extended Continental Shelf Project website of the U.S. government:
The United States is the only Arctic country, and indeed one of the few countries in the world, that has not yet ratified the LOS Convention. A non-party country has the same rights in its extended continental shelf as a country that has ratified the Convention, but without ratifying, the U.S. cannot submit its scientific findings to the CLCS, which means the U.S. will not have the opportunity to receive their recommendations and set ECS [extended continental shelf] limits based on them. There is an [sic] benefit to considering these recommendations: according to the LOS Convention, if a coastal country establishes its ECS limits “on the basis of” CLCS recommendations, those limits are “final and binding.”117
Accession to UNCLOS is the common recommendation of both the former George W. Bush and current Barack Obama administrations and is supported by a strong alliance of American military, environmental, shipping, energy, and other interests. In its recently issued “U.S. Navy Arctic Roadmap,” the U.S. Navy itself urges UNCLOS accession.118 Nowhere is the rationale for accession better spelled out than in the most recent statement of American Arctic policy, issued during the final days of the Bush administration:
The Senate should act favorably on U.S. accession to the U.N. Convention on the Law of the Sea promptly, to protect and advance U.S. interests, including with respect to the Arctic. Joining will serve the national security interests of the United States, including the maritime mobility of our Armed Forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.119
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To further demonstrate its support for the Convention’s legal regime, a succession of US presidents over the past three decades have directed a multi-agency US Freedom of Navigation Program to preserve the nation’s rights, freedoms, and lawful uses of the sea and airspace throughout the world. Of note, this US interest in freedom of navigation has included maintaining that freedom in the waters of East Asia, as demonstrated by a combination of public statements, diplomatic correspondence, and operational activities. Through the 1980s, 1990s and 2000s, the US Department of State has diplomatically protested and the US Department of Defense has operationally challenged excessive maritime claims asserted by nations in East Asia that are inconsistent with the Convention. These US efforts to preserve the legal regime reflected in the Convention are transparently documented in the US Department of Defense’s Annual Freedom of Navigation Reports and its Maritime Claims Reference Manual, both of which are available to the public on the Internet.
At the same time, the United States has demonstrated support for the Convention’s legal regime through its actions as a coastal state, to include respecting all of the rights, freedom, and lawful uses of the sea and airspace exercised by other states. For example, when vessels and aircraft from foreign militaries, such as Russia20 and China,21 conduct military activities in and over the US exclusive economic zone, the United States has fully respected this “other internationally lawful use of the sea” by foreign militaries reflected in the Convention
[ Page 7 ]
In conclusion, the United States is currently in a situation where we operate outside of a treaty that we were largely responsible for negotiating through which we obtained all our stated objectives, and that has been joined over 160 other nations, including virtually all of our allies and key partners. We conduct our actions consistent with many of its terms, which we regard as customary international law, but we do not obtain the benefits of the Convention available only to parties. Now more than ever, the United States must be a leader in preserving the rights, freedoms, and uses of the oceans that enable us to protect our vital security interests in the maritime domain around the globe. The diminishing group of countries outside the Convention includes land-locked nations such as Uzbekistan, Tajikistan, Afghanistan, and Bhutan, as well as rogue nations such as North Korea and Iran. To best protect our vital national security interests in the years to come, now is the time for the United States to lock-in a stable legal framework for the maritime domain, and send a clear message to other nations in the PACOM AOR that the maritime freedoms codified in the Convention are worth preserving and the Convention’s rule of law is worth upholding.
[ Page 260 ]
The United States will at some point fully adhere to the Convention. Every oceans industry interest in the United States supports the Convention, from the oil majors to the environmentalists. Indeed, the only opposition is ideologically based, rather than interest based, and even then is senseless un- less rooted in inaccuracies about the Convention. In the meantime, the United States accepts the normative provisions of the Convention as cus- tomary international law, and the United States Navy has one of the best records in the world in careful compliance.
MOORE: Let me just turn it around as well. I find rather interesting the notion that the argument is made that, well, it's all customary international law. Why do you need to sign? If it is already customary international law and binding on the United States, why shouldn't we go ahead and sign? What's the harm? In fact, one of the greatest errors in the series of arguments is even if every one of these arguments were true, which take one little, you know, bits and pieces of this thing and make an argument against it, even if they were all true, they miss the aggregate of the overall benefit for the United States of America. And by staying out, nothing that they are concerned about will stop. We just simply will be non-empowered.
For example, the International Seabed Authority is not going to go away. It's out there. If we've turned it all over to the United Nations so far, which is nonsense, it's already done. It will not go away. There are 153 countries and the European Union. So these are really nonsense arguments that are being made.
[ Page 8 ]
As the nation with the world’s largest navy, an extensive coastline and a continental shelf with enormous oil and gas reserves, and substantial commercial shipping interests, the United States certainly has much more to gain than lose from joining the Law of the Sea Convention. In my view, it is most unfortunate that a small but vocal minority – armed with a series of flawed arguments – has imposed upon the United States a delay that is contrary to our interests. Nevertheless, I am convinced this will change and am confident that the United States Senate will approve the Convention in due course.
In the meantime, the United States will continue to abide by the Convention and work within its framework. Even as we remain outside the Convention, the Legal Adviser’s Office confronts law of the sea issues on a daily basis. For example, we work at the International Maritime Organization and in regional fora to protect the marine environment by elaborating rules for reducing vessel source pollution, ocean dumping, and other sources of marine pollution. We recently achieved U.S. ratification of a treaty – “MARPOL Annex VI” – aimed at limiting air pollution from ships and a protocol limiting land-based sources of marine pollution in the Caribbean Region. A global treaty on ocean dumping – the “London Protocol” -- awaits action by the full Senate. At home, we coordinate with the Department of Justice to ensure that prosecutions involving foreign flag vessels are consistent with the marine pollution chapter of the Convention, and we scrutinize legislative proposals from both the Executive Branch and the Congress to ensure that U.S. marine pollution jurisdiction is applied and enforced in accordance with law of the sea rules.
We also negotiate maritime boundary treaties with our neighbors in line with the provisions of the Convention. Most people think the United States has only two neighbors – Canada and Mexico – but by virtue of our island possessions, we actually have over thirty instances in which U.S. maritime claims overlap with those of another country. Less than half of them have been resolved. Some involve disagreements about how much effect to give to islands in determining a maritime boundary. In the case of the Beaufort Sea, Canada argues that the existing treaty establishing the land boundary between Alaska and Canada also determines the maritime boundary. Our office is also assisting a State Department-led Task Force to determine the outer limits of the U.S. continental shelf beyond 200 nautical miles. The U.S. Coast Guard icebreaker Healy has recently conducted several cruises in the Arctic Ocean, including one that mapped areas of the Chukchi Borderland where the U.S. shelf may extend more than 600 miles from shore.
U.S. and international efforts to combat terrorism and proliferation have also generated law-of-the-sea-related issues. Consistent with the Convention, we fashion shipboarding agreements to promote the maritime interdiction aspects of the Proliferation Security Initiative. And we bring law of the sea equities into the elaboration of treaties on suppression of criminal acts at sea. In fact, the U.S. Senate has just given its advice and consent to ratification of two protocols that supplement the convention that addresses suppression of unlawful acts at sea – the 2005 so-called “SUA Protocol” and the 2005 “Fixed Platforms” Protocol.
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UNCLOS relies for these purposes on dozens of such conventions, but this article will focus on five that are particularly significant and wide-ranging: the International Convention for the Safety of Life at Sea (the SOLAS Convention); the InternationalManagement Code for the SafeOperation of Ships and for Pollution Prevention (ISM Code); the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention); the International Convention for the Prevention of Pollution from Ships (MARPOL Convention); and the International Ship and Port Facility Security Code (ISPS Code).
Before turning to the specifics, however, a few background topics need to be discussed. The first of these is the "organization that has probably had the most substantial direct effect on the law of the sea"-the International Maritime Organization. 39 The IMOis the "United Nations' specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships."40 The convention establishing the IMOwas adopted in 1948 and came into effect in 1958; the IMO's first meeting was held in 1959.Most of its work is done in committees, including the Maritime Safety Committee, the Marine Environment Protection Committee, and the Legal Committee. These bodies identify needs for new conventions or for amendments to existing ones. All of the important conventions to be discussed in this section were adopted under the auspices of the IMO, which today oversees the process of keeping these conventions abreast of developments in maritime and related industries.
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In August 2007, Russian scientists descended 4,261 meters (13,976 feet) beneath sea level at the North Pole, using two dual-manned submers- ibles, Mir-1 and Mir-2.18 The mission had two purposes: first, to collect samples of soil from the seabed directly beneath the North Pole, which is within the claims that Russia submitted to the commission and along the Lomonosov Ridge; and second, to place a one meter tall titanium Russian Federation flag, creating nationalist symbolism behind Russia’s claim and reinforcing its dedication to being a major power, both scientifically and economically, in the Arctic region.
Because of the suddenness of the claim by Russia, four other countries with a potential stake (Denmark, Norway, the United States, and Canada), and one without a stake (Japan), have submitted written responses to the Commission. Denmark and Canada have both refused to offer an opinion immediately after Russia’s submission, citing the necessity of additional and more specific data.19 The remaining countries, the United States, Norway, and Japan,20 have offered negative responses. Norway, having submitted a claim in November 2006 (beyond their 200 nautical mile EEZ) that does not overlap with Russia’s claim, was most concerned with overlapping claims along mutual borders, a “maritime dispute” that has not yet been settled and which could be problematic for both countries.21 The United States submitted a detailed response, using scientific data to support a position that neither the Alpha-Mendeleev or the Lomonosov Ridges are part of any state’s continental shelf, but are rather independent features consisting of magma or freestanding formations. The official U.S. position advised:
The integrity of the Convention and the process for establishing the outer limit of the continental shelf beyond 200 nautical miles ultimately depends on adherence to legal criteria and whether the geological criteria and interpretations applied are accepted as valid by the weight of informed scientific opinion. A broad scientific consensus of the relevant experts... is critical to the credibility of the Commission and the Convention.22
This statement suggests that the United States would like the convention and commission to look strongly and carefully at the evidence presented by Russia before determining any course of action. It also indicates that the United States is first deferring to the standards established in UNCLOS for dispute settlement, despite not being a signatory to the agreement.