Time for the United States to Join the Party? Prospects for US Ratification of the United Nations Convention on the Law of the Sea
Perhaps the most obvious and compelling gain for the United States will be secure title to jurisdiction over the non-living resources of the seabed and subsoil of the continental shelf extending beyond 200 nautical miles (nm). Both customary and conventional international law recognize state rights to this limit, but sea areas beyond are high seas, and sea-bed and sub-soil are part of the common heritage of humanity. These principles have been in process of development since the 1960s. The Convention, however, allows coastal States to establish outer limits to the continental shelf that go beyond 200nm provided the conditions set for in Article 76 of the Convention are satisfied. Through this process the United States stands to gain rights to enormous areas of seabed, especially in the Arctic. The Convention established the Commission on the Limits of the Continental Shelf (CLCS) to give official imprimatur to such outer continental shelf limits and thus the 'extended' or 'outer' continental shelf areas enclosed within them.9 This is crucially important, because without secure legal title, it is hard to envisage any commercial entity wishing to explore and exploit resources beyond 200nm being able or willing to invest the billions of dollars necessary to conduct such operations, especially in hostile environments such as the Arctic. It should not be forgotten that security of title, and the need to ensure proper control of activities, were among the policy considerations which led to the 'Truman Proclamation' on the Continental Shelf of 1945.10 This Proclamation laid the foundation for the entire modern law of the sea, because it took state rights beyond the limits of the territorial sea for the first time.
US accession to the UNCLOS regime would also enable and facilitate full US participation in how the law of the sea is further defined, applied, and modified. The 1982 Convention marked the end of the Third UN Conference on the Law of the Sea (UNCLOS III). It did not mark the cessation of the evolution and development of this branch of international law. And yet, the international community, by and large, has decided to pursue this process of evolution and development in the context of the UNCLOS regime. This alone speaks to the importance of securing the participation of all major ocean states. US non-participation compromises this. In essence, US non- participation denies the US a 'place at the table' within key institutions created as a consequence of the Convention and related agreements. For example, as a non-party the US has no representative on the International Tribunal on the Law of the Sea (ITLOS) and is ineligible to put forward a member of the Commission on the Limits of the Continental Shelf (CLCS). This is surely problematic from a US perspective. As noted above, the Convention is now widely accepted as the basis for global oceans governance yet the law of the sea continues to evolve and change. Without US input, the international law of the sea is likely to be shaped in a manner that does not fully take into account US national interests. This is why complacent arguments that the US can take advantage of the benefits that the Convention offers on the basis that it is reflective of customary international law, whilst avoiding the costs of participation are flawed. Such a strategy represents a distinct abdication of responsibility that carries with it the long-term risk that international custom will ultimately run counter to US interests.
The US is, of course, the world's sole superpower and its pre-eminent maritime power. Accordingly, the US clearly plays a leading role in global affairs. The US also perceives itself to be a world leader and is keen to project and promote this image and reality. The fact that the US is not a party to the Convention undermines that leadership role in the maritime sphere. Critically, when the United States comments on maritime issues of concern to it, such as regarding excessive maritime claims through the FON program or on the South China Sea disputes for instance, a frequently raised objection to Washington's interventions is that the US has not signed up to UNCLOS. This serves to compromise the credibility and authority of the US in global ocean affairs. US accession would therefore remove a somewhat irrelevant, but far from unimportant barrier to the United States playing a strong leadership role as the contemporary law of the sea. The counterpoint here is that by choosing not to participate the US is abdicating or at least undermining its credential to a leadership role in international ocean affairs. The rationale for ratification on this front alone is therefore, it is submitted, persuasive.
UNCLOS provides the overarching framework governing international ocean affairs. The Convention is one of the most wide-ranging, comprehensive international Conventions and, together with its associated agreements3, covers or touches on virtually all marine activities. UNCLOS has, moreover, achieved broad acceptance from the international community. At the time of writing the Convention boasted 164 parties, comprising 163 States plus the European Union. When it is recalled that there are 'only' 155 coastal States in the world, the near-comprehensive uptake of UNCLOS is underscored.
Indeed, despite being a non-party itself, the US nonetheless accepts that key aspects of UNCLOS, such as the maritime jurisdictional and boundary delimitation provisions, are declaratory of customary international law and conducts its policy accordingly.4 In terms of international law and international relations, US accession to the Convention would therefore consolidate and reinforce the oceans policy and practice pursued by successive administrations of both political persuasions in the US.