U.S. Membership in UNCLOS: What Effects for the Marine Environment?
Among the benefits the U.S. will receive from UNCLOS membership is the ability to have a judge of U.S. nationality serve on the ITLOS and the right to participate in the amendment process of the treaty as provided for in Article 312. The power to amend the treaty is vested in the parties 10 years after the treaty has entered into force.18 The 10-year anniversary was November 16, 2004. The U.S. would be entering the game just as amendments become possible. Admittedly, the question of amendment to such a comprehensive legal instrument is fraught with difficulties, but U.S. membership ensures that any future amendments will only be adopted when the U.S. is a full participant in the process.
By most accounts, U.S. ratification of UNCLOS will have a positive effect on the environment. This is not because the U.S. will be binding itself to any new substantive norms. On the contrary, most substantive provisions of UNCLOS are already part of U.S. policy and have been for many years. Despite this, the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support.
Still, another declaration asserts that Article 65, the UNCLOS provision pertaining to conservation and management of marine mammals, lends direct support to the present moratorium on commercial whaling and the establishment of sanctuaries and other conservation measures. The same declaration also asserts that states must cooperate with respect to all cetaceans not just large ones. This declaration is a clear reference to the work of the International Whaling Commission (IWC) although it does not identify the IWC by name. To understand the context of this declaration, the moratorium on commercial whaling, which has been in effect since the mid-1980s, has come under assault in recent years by pro-whaling states that find no basis in law for the continuation of the moratorium. Furthermore, the reference to "all cetaceans" not just large whales speaks to an ongoing debate in the IWC: that is, whether or not the IWC is competent to regulate small cetaceans (i.e., dolphins and porpoises) as well as the great whales. The effect of this declaration will likely be to lend greater U.S. support to the efforts of the IWC which today has a solidly conservationist agenda.