Indeed, global commerce, travel, and information have greatly contributed to the growing wealth of nations and to the stability of the post-Cold War international system. The world's seas, air, space, and-more recently- cyberspace also play critical roles in states' national defense and their ability to conduct military operations worldwide. The United States relies on freedom to operate in the commons in order to protect the U.S. homeland and its vital national interests.
- US freedom of navigation rights are a critical component of our global leadership
- Direct correlation between us economic and military power and the rights preserved by UNCLOS
- Freedom of operation in the global commons has been and will continue to be a key driver of US and global economic growth
- US global leadership directly tied to its leadership and dominance over the global commons
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Strategic environment and level of cooperation between Russia and the United States in the Arctic will be based on the state of their bilateral relations in general, and not on the U.S. decision of whether or not to ratify the UN Law of the Sea.
- US ratification of UNCLOS will not boost capacity to challenge Russian claims, disputes likely to be resolved outside of convention
- Russia will defend its claims in the Arctic but is unlikely to resort to military means
- Bilateral relations between U.S. and Russia will be more important to Arctic security than U.S. non-party status to UNCLOS
- Russia has effectively removed option of resolving border disputes through UNCLOS in its signing statements under Article 298
- No major disagreement over ECS claims between U.S. and Russia
- Arctic nations are only cooperating through international institutions out of political convenience
Bilateral arrangements between states over ECS claims are not a viable alternative to the existing UNCLOS regime. The comprehensive international UNCLOS regime was proposed in the first place as a way of reducing the transaction costs of formulating all of these bilateral treaties. Additionally, they would have dubious legal validity, especially in regions like the Arctic where all other nations besides the U.S. have already ratified the treaty.
- US attempts at bilateral diplomacy only complicating disputes, should agree to international framework of UNCLOS
- Bilateral treaties are not a sufficient substitute for UNCLOS regime in settling Arctic disputes
- Bilateral agreements over seabed jurisdiction would be abrogated by UNCLOS framework
- Joint ventures with signatory nations not an acceptable alternative because U.S. companies would be bound by treaty without accruing its benefits
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The United States, as authorized by Article 298, would exempt “military activities” from compulsory dispute resolution. Under the Convention, a state party has the exclusive right to determine what constitutes a “military activity.” The U.S. declaration states:
- US has made clear numerous times that military activities including intelligence gathering would not be subject to dispute resolution
- Article 310 of UNCLOS allows ratifying parties to submit signing statements to clarify their intent
- U.S. signing statements for UNCLOS outlined and clarified seven critical issues for U.S. support
- In prepared signing statements, U.S. has declared an exemption for its military activities from compulsory dispute resolution
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Even as a non-party to UNCLOS, the U.S. will still retain its maritime leadership role and can influence the future of the law of the sea through the International Maritime Organization.
- Any changes to UNCLOS are more likely to occur at the International Maritime Organization, not through United Nations
- US not losing opportunity to guide development of UNCLOS, it can always make accession dependent on amendment
- International Maritime Organization is more important to global ocean policy than UNCLOS and U.S. remains leader in IMO
UNCLOS provisions for counter-piracy have not kept pace with current developments and its EEZ provisions can complicate the ability of other states to act to thwart pirates.
Ratifying LOSC will also enhance U.S. counter-piracy efforts by improving America’s ability to shape the legal authorities the international community relies on to combat piracy, especially in instances where existing agreements do not account for advancements in technology.
Empirically, after 30 years there is a significant and consistent pattern of non-compliance with UNCLOS provisions.
One way to determine the extent to which UNCLOS’s navigational provisions have achieved the status of binding international law is to study the behavior of nations. The consistent practice of states—maritime states, coastal states, UNCLOS members, and nonmembers—indicates that the UNCLOS navigational provisions are almost universally accepted law.
- UNCLOS has already proven itself as a powerful mechanism to bring rule of law to maritime realm
- Existing treaties that laid the foundation for UNCLOS have been empirically obeyed by most parties
- Most coastal states have already adapted their maritime law to bring it into compliance with UNCLOS
- Procedures of CLCS commission are empirically working with countries working peacefully together to resolve disputed claims
- U.S. freedom of navigation disputes have decreased due in part to the influence of UNCLOS
- Consistent practice of states illustrates that UNCLOS freedom of navigation provisions have become customary international law
As the pre-eminent global maritime power, the U.S. has significant interests in the global effect of the Convention’s rules and their interpretation with many issues that of greater concern to us than to most other countries (for example, preserving freedom of navigation rights). Our adversaries view this as a weakness they can exploit and are shaping the course of the convention in ways adverse to U.S. interests while the U.S. remains on the sidelines, unable to participate in the discussion as a non-party.
- U.S. adversaries are taking advantage of U.S. non-party status to UNCLOS to shape international laws in ways inimical to U.S. interests
- U.S. adversaries are using U.S. absence from UNCLOS to shape treaty in way adverse to U.S. interests
- U.S. interests are threatened by international NGOs and other actors that are shaping the future of UNCLOS without U.S. input
- U.S. has permanent veto over new amendments to the treaty but only after it has ratified it
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