Something for Everyone: Why the United States should Ratify the Law of the Sea Treaty
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There is no doubt that external dispute resolution infringes upon U.S. sovereignty and it is therefore not surprising that staunch advocates of sovereignty steadfastly oppose the Convention, in part due to its dispute resolution mechanisms. However, the costs associated with the Convention’s dispute resolution provision are similar to those the United States is already subject to under principles of universal jurisdiction and territoriality. Furthermore, the Convention provides the United States with an escape from mandatory dispute resolution. In light of this, arguments against ratification of the Convention based upon sovereignty rooted in the dispute resolution mechanisms are outweighed by the benefits the Convention offers to the United States.91
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Additionally, ratification of the Convention will soften the United States’ image and signal much needed goodwill to the international community.110 It has been noted that “[a]nti-Americanism has increased in recent years, and the U.S.’ soft power—its ability to attract others by the legitimacy of U.S. policies and the values that underlie them—is in decline as a result.”111 Commitment to the Convention, which engages much of the international community, would be emphasized by U.S. ratification.112 It also allows other states to place their trust in the U.S. and thus its actions on the seas. This is essential for the United States to maintain its legitimacy and ultimate leverage in the international arena.113
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Additionally, the United States explicitly acknowledges the “common heritage of mankind” principle in its passage of the Deep Seabed Hard Mineral Resources Act.65 The Deep Seabed Hard Mineral Resources Act notes that deep seabed minerals are the “common heritage of mankind” and establishes a temporary framework for the responsible and respectful mining of the deep seabed taking into account the interests of other nations.66 That the Deep Seabed Hard Mineral Resources Act was intended as a temporary framework until the Convention could be agreed upon and ratified67 further supports the United States’ willingness to embrace the “common heritage of mankind,” and ultimately the Convention which incorporates this principle.
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Not only does the Convention provide a clear definition of piracy and basis for capture and prosecution of pirates, it also imposes an affirmative obligation upon parties to make efforts to curtail piracy.144 Critics of the Convention argue that it actually impedes the United States’ ability to chase and capture pirates because a ship must cease pursuit if the ship it is chasing enters its own or a third state’s territorial waters.145 They assert that this provision provides pirates with a safe haven to retreat to undeterred, and that the Convention prevents non-territorial state ships from pursuing the pirates.146 This is troubling largely because of the strong presence of Somali pirates.147 For example, under this provision, Somali pirates can attack ships and if they risk getting captured, rush back into their own state’s territorial waters where they would be safe. Somalia, a nation plagued by its own problems of lawlessness and poverty, is in no position to apprehend these criminals.148 In such a circumstance, however, the United States can assert that Article 100 of Part VII of the Convention, which imposes upon member parties the duty to cooperate in the repression of piracy, gives it the authority to continue pursuit.149 Somalia is a party to the Convention and where it cannot assist in apprehending and trying pirates, it must cooperate with others who can. This includes permitting states that are working to repress piracy by pursuing pirates to do so within Somalia’s territorial waters.150 Furthermore, a December 2008 United Nations Security Council resolution called upon states to actively assist in combating piracy off of the coast of Somalia and gives them the authority to “undertake all necessary measures ‘appropriate in Somalia’ ” in furtherance of this end for a period of one year.151 In April of 2010, the United Nations Security Council adopted a resolution that calls upon states to criminalize piracy under their domestic law and consider prosecution of and imprisonment of apprehended Somali pirates.152 This resolution also seeks a report from the Secretary General of the United Nations to present options for purposes of “prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia.”153 Given this explicit guidance to counter piracy coupled with the Convention’s anti-piracy provisions, criticism that the Convention would preclude apprehending pirates does not hold up.
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Finally, the Convention also offers the United States a diplomatic and political solution should a dispute with China arise.167 Although the United States traditionally resists dispute resolution mechanisms, it would be in its interest to embrace them here. As a non-party to the Convention, a potential dispute between China and the United States could escalate into an explosive situation. By ratifying the Convention, the U.S. will have the support of the international community to exert pressure on China—either for peaceful dispute resolution or to adhere to the provisions of the Convention that it too has ratified.168
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Militarily, the Convention provides the United States with a key strategic advantage that its armed services rely upon. That advantage is “the ability to navigate freely on, over, and under the world’s oceans.”158 In an urgent situation, the United States would be free to enter the territorial sea of any party to the Convention, including China, without losing momentum by halting to obtain permission, enter into negotiations, or weigh the benefits of violating international law.159 This is increasingly important given the recent skirmish between China and the United States on the seas. In March of 2009, U.S. ships were collecting information in what China claimed was an illegal manner in its exclusive economic zone.160 Chinese and U.S. naval ships had a brief standoff that was peacefully resolved. Because “such incidents can be expected in the future,” U.S. ratification of the Convention is essential.161 If the United States were a party to the Convention, it could argue that it was freely navigating—an activity that is permissible in China’s exclusive economic zones under the Convention.