The 1982 United Nations Convention on the Law of the Sea: An Historical Perspective on Prospects for US Accession
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The US-developed PSI is directed toward preventing the illicit transportation by ships of weapons of mass destruction, their delivery systems and related materials. Under the Law of the Sea Convention and customary international law, a number of jurisdictional bases exist for stopping and searching ships suspected of being engaged in some sort of illicit activity. These include jurisdiction exercised by a State with respect to ships flying its flag or within its territorial sea, ports or contiguous zone, and stateless vessels. It is also permissible to stop and search a foreign-flag vessel with the permission of the flag State. The PSI builds on this latter basis of jurisdiction with a series of bilateral agreements by which the United States and its treaty partners agree in advance on a set of orderly procedures for the reciprocal granting of permission for visits and search of suspected ships and cargoes. There is nothing in the Convention that would change the law in any respect with respect to the US practices under the Proliferation Security Initiative. Likewise, with respect to intelligence operations, the Law of the Sea Convention contains no restrictions on US naval surveillance and intelligence operations not already included in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the United States is already a party.
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There is at least a germ of truth in this argument. The United States and its maritime activities are functioning reasonably well under the customary regime of the law of the sea. Most of the Convention is indeed a codification of customary international law. President Reagan's 1982 statements acknowledged this and pledged that the United States would abide by its rules.41 But customary law does not provide the precision and detail of a written document. It may establish a principle, but its content may remain imprecise, subject to a range of interpretations. With respect to the exclusive economic zone (EEZ), for example, it is generally conceded today that the principle of the zone has become a part of customary international law. But what about its content? The details are contained in a set of articles codifying a series of compromises worked out in meticulous detail in the negotiations leading up to the signing of the Convention. The rules for determining the allowable catch of the living resources of the EEZ, the determination of the coastal State's capacity to harvest them, the determination of the allowable catch by other States and the rules governing the coastal State's establishing of terms and conditions for foreign fishermen in their EEZs are laid out in detail.42
Customary rules are fuzzy around the edges and may not be recognized as binding by an opposing State. The "jurisdiction creep," which continued after the 1958 and 1960 First and Second UN Conferences on the Law of the Sea, illustrated the futility of relying on customary law to protect our vital security interests. Only a written document can provide the certainty and stability required by our governmental agencies and private maritime enterprises. And in any dispute with a foreign State to secure its compliance with the rules set forth in the Convention, arguments based on a written agreement rather than an asserted principle of customary international law would be much more effective.
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Also, international institutions cannot be created by custom. Only through agreements can this occur. The institutions incorporated in the Convention are essen- tial to its proper functioning-the Seabed Authority, the Commission on the Limits of the Continental Shelf, the Law of the Sea Tribunal and the other dispute settlement mechanisms provided for in Part XV and Annexes V to VIII of the Convention. The marine scientific research articles (Part XIII) of the Convention also provide for im- plied consent to research requests in foreign waters if there is no reply within fixed time limits, a right not accorded to the United States as a non-party.
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From the outset the United States has insisted that a system of compulsory dispute settlement be a part of any comprehensive convention on the law of the sea.45 The US delegation, in the person of the late Louis Sohn, took the lead in the negotiating group that developed the final package, which became Part XV of the Convention and its related Annexes. It is incongruous that the flexible provisions of Part XV, worked out under the leadership of the United States, should now be the basis of objection to the Convention. The objectors suggest, without basis in fact, that the United States might be dragged against its will into the jurisdiction of the Law of the Sea Tribunal, particularly with respect to our military activities.46 They ignore the terms of the Convention that provide, with respect to compulsory procedures entailing binding decisions, an opportunity for States, upon signing, ratifying or acceding to the Convention, "or at any time thereafter," to choose the binding procedure it will accept from a menu of settlement mechanisms. 47 The United States has indicated that it will choose arbitration under Annexes VII and VIII upon ac- cession.48 Further, the criticism ignores the provisions of Article 298 that provide that State parties may exclude from the applicability of "any" of the compulsory procedures providing for binding decisions, interalia,"disputes concerning military activities." One of the declarations that will accompany any US accession to the Convention will state that its accession "is conditioned upon the understand- ing that, under article 298(l)(b), each State Party has the exclusive right to deter- mine whether its activities are or were 'military activities' and that such determinations are not subject to review."
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The taxation objection made by opponents is often coupled with an argument that US companies that had invested millions of dollars in exploration costs would lose their existing claims under US law. This argument ignores the fact that the 1994 Agreement grandfathers these holders into the treaty regime based on arrangements no less favorable than those granted to holders of claims already registered with the Authority upon certification by the US government and the payment of a $250,000 application fee (a fee that is half of the fee established in the 1982 Convention). As Ambassador Colson pointed out in the 1994 hearings, "If the U.S. does not become Party to the Convention, international recognition of the￼ rights of the U.S. licensed consortia could be jeopardized."
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Rather than a "rush to judgment," it is hard to find any aspect of the Convention that has not been discussed and debated ad infinitum in the public media, in academic conferences and symposia, in legal and ocean policy literature, and in congressional hearings. It has been studied and restudied by each successive administration, and every government department and agency with a concern in the oceans supports accession. In March 2007, in testimony before the Subcommittee on Fisheries, Wildlife, and Oceans of the Natural Resources Committee of the House of Representatives, Admiral James D. Watkins and Leon E. Panetta, Co-chairmen of the Joint Ocean Commission Initiative, renewed their strong endorsement of the Convention, saying, among other things, that the failure of the United States to become a party to the Convention is "one of the most serious international ocean policy issues that remain unresolved for our nation.
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There are tangible costs for the United States in not being a party to the Law of the Sea Convention. Until 1998, the United States was entitled to provisional membership in the meetings of the States party to the Convention, but since then it can be present only as an observer. Its non-accession has had and continues to have real costs. It is ineligible to nominate members to the Law of the Sea Tribunal; it has forfeited (as of March 2007) the opportunity to nominate members to the Commission on the Limits of the Continental Shelf until the next election in 2012,58 and it cannot occupy its guaranteed seat on the Council of the Seabed Authority and the powerful Finance Committee. The marine scientific research institutions continue to suffer from long delays in gaining approval for research in foreign EEZs, which would be alleviated by the Convention's implied consent provisions were the United States a party. Perhaps as damaging as the concrete benefits of the Convention previously discussed is the harm to the credibility of the United States in international relations by failing to accede to the Convention. After all, we laid out before the world in President Reagan's 1982 statements our objections to the Convention and what would be required for the United States to become a party. By adopting the 1994 Agreement, the international community gave us what we demanded as conditions for our accession, and now, thirteen years later, the United States has still not become a party.