A Treaty on Thin Ice: Debunking the Arguments against U.S. Ratification of the Law of the Sea in a time of Global Climate Crisis
Many of these arguments have been put into perspective, however, by the actual history and operation of UNCLOS. Instead of posing a threat to national sovereignty, U.S. ratification of UNCLOS would actually enlarge U.S. power by providing a permanent seat on the ISA,58 and would be ―the greatest expansion of U.S. resource jurisdiction in the history of the nation.59 A permanent seat on the ISA would give the United States a strategic advantage, namely a ―greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.60
Concerns about abuse of power by the ISA are similarly unfounded, as the ISA operates independently from the U.N.61 and is comparable to other specialized U.N. organizations, many of which the U.S. already endorses. Further, the navigational protections for American ships on the high seas would enhance, not diminish, U.S. sovereignty.62 Some UNCLOS proponents also argue that claims to U.S. sovereignty are overstated in the context of a shared resource like the world‘s oceans.63 Finally, due to the inevitability of international reliance on UNCLOS to form international maritime law and regulate maritime disputes, the United States will suffer a huge loss of power if it fails to accede to the treaty.64
Opponents of UNCLOS claim that accession will also harm U.S. commercial interests in the world‘s oceans. The provisions on seabed mining, in particular, are seen as an attempt at international wealth redistribution.65 Additionally, there is a fear that the ISA would have the power to enforce an international tax on resources extracted from the seabed.66
Although these commercial concerns resonate with many economic conservatives, they are among the easiest to debunk, primarily by examining the economic consequences the United States will face if it does not accede. Claims to mineral rights in the Arctic are governed by UNCLOS provisions on an extended continental shelf, and the United States may lose these claims without representation on the ISA or State Party status.67 Additionally, many economic concerns ring hollow in the face of favorable opinions of the treaty by U.S. industries affected by such regulations.68 For example, the oil and gas industries have agreed to pay any tax levied on deep seabed extractions.69
Fundamental differences on environmental policy have also been raised as objections to UNCLOS. Opponents see UNCLOS as a 'back door' for environmental activists to circumvent the U.S. Congress on international environmental law.70 Alternatively, accession might encourage foreign governments to bring action against the United States for environmental transgressions under the treaty‘s mandatory dispute resolution protocol.71
Use of the outlined dispute resolution process against the United States seems unlikely, though, since the United States already complies with or exceeds the environmental standards set out in UNCLOS.72 Further, provisions meant to protect the sustainability of the world‘s oceans are of global concern73 and benefit U.S. ocean-based industries.74 Even while it complies with the substance of the environmental provisions, the United States may be seen as a block to global environmental action until it actually ratifies UNCLOS.75
Though national security remains a top U.S. priority, opponents of UNCLOS have overstated the degree to which the treaty would endanger that security. First, major concerns appear to stem from a misreading of articles 19 and 20.81 Additionally, the provisions at issue were negotiated with the input and consent of the U.S. intelligence community (including the National Security Council) and were approved by the Central Intelligence Agency and the Department of Defense.82 In fact, some of the strongest supporters of the treaty come from the intelligence community and the highest ranks of the U.S. military.83 As for the reliance upon customary international law to ensure permission for navigation by U.S. vessels, some commentators see this as a risky and costly alternative to ratification.84
Though the United States lacks the ability to submit claims to enlarge its coastal territory until it ratifies UNCLOS, some commentators stress that because of the length of the ISA and CLCS review process, the United States might not be out of the running for these Arctic treasures quite yet.120 In the meantime, however, the UNCLOS member nations of Canada, Denmark, Finland, Iceland, Norway, Sweden, and Russia are all currently competing for these valuable overlapping rights.121 While these countries may begin evaluation by the ISA of their claims at any time, the United States continues to have its hands tied—unable to use the ISA procedure (the only treaty-sanctioned procedure) until it ratifies UNCLOS.
In light of a global climate crisis and the escalating battle over the valuable resources below the North Pole, Congress should make ratification of UNCLOS one of its top priorities. Until the United States is a treaty member, it cannot enjoy voting privileges on the influential ISA (on which it would be granted a permanent seat) nor submit claims to the CLCS to gain legal rights to the resources in the North Pole‘s seabed. The concerns that influenced President Reagan not to sign the treaty in 1982 have largely disappeared, and the remaining concerns are easily refuted. U.S. ratification of UNCLOS makes sense not just for economic, national security, and environmental reasons, but also to enhance the diplomatic standing of the United States. Accession to UNCLOS now would be a powerful and meaningful gesture on behalf of the United States, symbolizing a recommitment to global cooperation.