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.
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The legal regime applicable in the Arctic is the customary international law as reflected in the United Nations Convention on the Law of the Sea (UNCLOS). While the United States has not ratified UNCLOS, it considers the convention’s navigation and jurisdiction provisions to be binding international law. The convention advances and protects the national security, environmental, and economic interests of all nations, including the United States, codifying the navigational rights and freedoms that are critical to American military and commercial vessels. It also secures economic rights to offshore natural resources.26 Article 76 of the convention allows nations to claim jurisdiction past their exclusive economic zones on the basis of undersea features that are considered extensions of the continental shelf, if a structure is geologically similar to a nation’s continental landmass.27 In May 2008 five of the Arctic nations adopted the Illulissat Declaration, which acknowledges that “the Law of the Sea is the relevant legal framework in the Arctic” and that there is “no need to develop a new comprehensive international legal regime to govern the Arctic,” committing the signatories to an “orderly settlement of any possible overlapping claims.”28
Currently there are overlapping, unresolved maritime boundary claims between the United States and Canada, Canada and Denmark, Denmark and Norway, and Norway and Russia. At this time, none of these disputed boundary claims pose a threat to global stability. While the United States and Canada disagree on the location of the maritime boundary in and northward of the Beaufort Sea, the United States considers Canada a close ally, and the dispute does not jeopardize this relationship.29 Unfortunately, the United States is the only Arctic nation that has not joined UNCLOS, despite support from President Barack Obama and the Bush and Clinton administrations. Because the Illulissat Declaration recognizes the law of the sea as the framework for deciding issues of Arctic territoriality, the United States will likely find itself at a disadvantage when critical Arctic conversations occur.30
We also should remember that the United States already has been abiding by the Law of the Sea Convention since President Reagan's 1983 Statement of Oceans Policy. In addition, the United States is a party to the 1958 Convention on the Territorial Sea and Contiguous Zone, a predecessor to the Law of the Sea Convention. Many of the provisions of the 1958 Convention are less advantageous to the United States than comparable provisions in the Law of the Sea Convention.
Given that the United States has been abiding by all but one provision of the Treaty for the last 21 years and that we are already a party to a less advantageous international agreement on ocean law, dire predictions about the hazards to our sovereignty of joining the Law of the Sea Convention ring particularly hollow.
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Ultimately, the Convention settled on an outer limit for the continental shelf of 200 miles,38 which satisfied many geographically disadvantaged states (those that do have a naturally wide shelf), but also allowed special considerations for states with naturally broad shelves by granting them a potentially deeper shelf of up to 350 miles instead of the standard 200.39 With the exception of the special considerations, Convention provisions limiting the continental shelf echoed those in the 1964 Convention on the Continental Shelf which set the limit as 200 miles and gave coastal states exclusive rights over its continental shelf.40 The United States is a party to the 1964 Convention on the Continental Shelf and thus bound by these limits.41 However, if the United States qualifies for the special considerations provided for in the Convention for states with naturally broader shelves, it has the potential to increase its continental shelf.42
U.S. law and practice are already generally compatible with the Convention. Except [with respect to the enforcement of certain deep seabed mining decisions, which would be necessary at some point after U.S. accession], the United States does not need to enact new legislation to supplement or modify existing U.S. law, whether related to protection of the marine environment, human health, safety, maritime security, the conservation of natural resources, or other topics within the scope of the Convention. The United States, as a party, would be able to implement the Convention through existing laws, regulations, and practices (including enforcement practices), which are consistent with the Convention and which would not need to change in order for the United States to meet its Convention obligations….[t]he Convention would not create private rights of action or other enforceable rights in U.S. courts, apart from its provisions regarding privileges and immunities to be accorded to the Convention’s institutions.
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The United States did not sign UNCLOS,76 but remains a party to Geneva LOS.77 UNCLOS superseded the Geneva LOS conventions as to parties of both treaties.78 Those parties include the major players in the fight against maritime piracy. Somalia, Kenya, Seychelles, Yemen, Denmark, France, Germany, the United Kingdom, China, India, and Japan are all parties to UNCLOS.79 Indeed, UNCLOS currently has 160 state parties,80 a sufficiently large proportion of all states for it to constitute a codification of customary international law.81 Additionally, submission for ratification gives UNCLOS force as between the United States and other state parties, and the United States has stated its intention to respect the rules of UNCLOS on “navigation and other matters.”82
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Paradoxically, the critics seem not to have noticed that the less protective 1958 Conventions already binding on the United States, unlike the 1982 Convention, contain no denunciation clause. Unless the United States adheres to the 1982 Convention, which would automatically supercede our obligations under the 1958 Conventions, we would be faced with substantial uncertainty about revision or withdrawal from the 1958 Conventions. Under the 1958 Conventions, a request for revision of the Conventions would simply be referred to the United Nations General Assembly, which would then “decide upon the steps, if any, to be taken in respect of such requests.” And, in the absence of a denunciation clause in the 1958 Conventions, it would be unclear under international law whether the United States would be able to lawfully withdraw at all from these Conventions. In sharp contrast, not only will adherence to the 1982 Convention automatically supercede outmoded United States obligations under the 1958 Conventions, but the 1982 Convention does contain a denunciation clause. Under Article 317 of the Convention the United States may leave the Convention after one year following a simple denunciation. Thus, if the horribles espoused by the critics were to occur, the United States could simply denounce the Convention and withdraw;
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In spite of the fact that the United States has not formally adopted UNCLOS, the applicability of the Convention's Articles governing sovereignty over the continental shelf to the United States-namely Articles 76 through 85-is for several reasons not seriously in dispute. First, many writers contend that Article 76 has become a defacto part of customary international law because of its wide adoption-either via ratification of the Convention itself or via unilateral laws modeled after the Convention.47
Second, the United States has repeatedly demonstrated its intent to be bound by the provisions of UNCLOS not relating to Part XI, which prohibits mining on the deep-sea beds. For instance, after refusing to sign the treaty in 1983, President Reagan announced his intention that the United States nevertheless act in accordance with UNCLOS.48 Although it never reached a floor vote, President Clinton referred UNCLOS to the Senate Committee on Foreign Relations in 1994.49 The Bush administration similarly pushed for ratification of the Convention, likely because it found "that the Convention's navigational and national security benefits far outweigh any costs to the U.S."50 UNCLOS has found similar support in the decisions of the federal courts.51
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Some critics seem also to act as though United States non-adherence would prevent the Convention from coming into effect, that we can engage in further renegotiation, or that we can simply ignore the Convention in our relations with other nations. None of these assumptions is true. The 1982 Convention is in force for 145 nations and is today the basic legal regime for the world’s oceans. For example, whether or not the United States adheres to the Convention, the Seabed Authority will remain in place. The only difference will be that the United States will gratuitously deprive itself of its deep seabed mining industry and our ability to control the rules and regulations, amendments and any distribution of revenues to states parties in the actions of the Authority. And following a major renegotiation at United States insistence before the Convention went into force (a renegotiation that met all United States conditions established by President Reagan for United States acceptance) there is zero possibility of further renegotiation. Any amendments from this point forward can only come from the participation of states parties using normal Convention provisions for amendment. Similarly, whether or not we are a party to the Convention, when the United States seeks to mobilize its allies around an important initiative such as the Proliferation Security Initiative, it will quickly find, as it has, that our allies will insist on compliance with the Convention provisions;
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Military Operations. U.S. military forces are already legally bound to follow the provisions of convention by virtue of President Reagan’s 1983 Statement on Ocean Policy; therefore, joining the convention will impose no additional restrictions on U.S. military operations. Since the completion of the 1994 agreement, there has been unanimous support for joining the convention by uniformed and civilian national security leaders, including the chairman and Joint Chiefs of Staff, the combatant commanders, and the comman- dant of the Coast Guard. The public record documenting historical and current support by national security leaders is overwhelming.32 The most recent testimony of Deputy Secretary of Defense Gordon England succinctly captures this support:
“President Bush, Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, the Combatant Commanders, the Commandant of the Coast Guard and I urge the Committee to give its approval for U.S. accession to the Law of the Sea Convention and ratification of the 1994 Agreement. The United States needs to join the Law of the Sea Convention, and join it now, to take full advantage of the many benefits it offers, to mitigate the increasing costs of being on the outside, and to support the global mobility of our armed forces and the sus- tainment of our combat forces overseas.”33
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The United States has long been party to the four 1958 Geneva Conventions on the Law of the Sea, many of whose provisions are copied and elaborated upon in the 1982 Law of the Sea Convention. It is puzzling that a few commentators maintain that dire consequences would flow from Senate acceptance of texts that are no different from those already contained in the Geneva Conventions and other treaties to which we are party.
It is also puzzling that a few commentators maintain that dire consequences would flow from Senate acceptance of texts that President Reagan publicly committed the United States to respect. President Reagan formally declared that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.” 2