Balancing U.S. Interests in the UN Law of the Sea Convention
The activity related to Arctic claims suggests an urgency for U.S. accession to the Convention. This urgency is driven both by what the United States can do and what it can undo as a party to the Convention. While we currently can comment on proposals by other Convention nations9, accession to the treaty would give the United States standing to substantially modify or block proposals that the U.S. found detrimental to its national interests. This could be done by preparing its own claim to the Continental Shelf Commission, or by working cooperatively with other Arctic nations to develop logical rules to govern exploitation of resources and other uses of the Arctic Sea. This latter strategy reflects one of the biggest benefits of U.S. accession to the Convention-namely that it would generate goodwill and a sense of cooperation over a shared mission to responsibly use the resources of the sea while protecting the oceanic environment for generations to come.
The United States has considerable power to determine how accession to Convention would affect its national interests. This is primarily a function of the many years of negotiations getting the treaty to its 1994 form. More recent specific guidance provided by the U.S. Senate Foreign Relations Committee on conditions for U.S. accession to the treaty are laid out in a lengthy resolution identifying very specific declarations, understandings, and conditions that ensure protection of U.S. interests.10 The conditions address a wide array of issues including representation on treaty decision-making bodies, ability to enforce U.S. environmental law, and rights to free navigation, as well as harmonization of the treaty with specific aspects of U.S. law. A particular concern to many in the United States is the specter of foreign courts making decisions about navigation and resource protection activities that ultimately affect U.S. interests. This concern could be said to be overstated for three reasons. First, accession to the Convention will allow the U.S. to have a say in the election of members of the Tribunal and to select members of arbitration panels making decisions. Second, and more important, is the fact that the U.S., as part of its accession (or any time thereafter), has the legal right to request the type of body it wants decisions concerning U.S. interests to be made by. The choices the United States would have include:
- A hearing before the International Tribunal for the Law of the Sea (ITLOS), a standing tribunal of 21 judges, each from a different nation, that serve nine year terms. The earliest the U.S. could get a seated judge would be in late 2008, when seven seats open.
- A hearing before the International Court of Justice (ICJ), a UN court of 15 judges appointed by the General Assembly and Security Council. The U.S. currently has one sitting judge.
- A special arbitral tribunal under “Annex VIII” made up of environmental, marine science, navigation and fisheries experts of which the U.S. would pick two of the five arbitrators.
- A hearing before an “Annex VII” arbitration panel composed of five members of which the U.S. would be allowed to choose one and be involved in the appointment of at least three others.
The U.S. has already indicated its decision to adjudicate conflicts under the last two options, using the third option for fisheries, environmental and navigational disputes, and the fourth option for other disputes, meaning that all decisions concerning U.S. interests would go to a small arbitral body whose members are selected with U.S. input. Finally, nations may opt out of any of the above adjudication procedures when the issue debated concerns such issues as scientific research, boundary disputes, military activities and setting of limits in natural resource extraction within a nation’s EEZ.
Of course, many nations have a vigorous interest on both sides of this dichotomy, but none more so than the United States. With the largest claimed EEZ of any nation (due in part to the long coast of Alaska, the Aleutian islands and Pacific territories) the U.S. is a coastal nation and as such demands protection for its coastal natural resources. From this perspective, the United States may wish to limit transport by other nations in its EEZ to protect habitats or to ensure that illegal fishing is not occurring. Indeed, the United States has imposed mandatory ship reporting requirements to protect right whales12, and is seeking approval of the International Maritime Organization for limitations on transit in the northwest Hawaiian islands, which has recently been designated a National Monument. But with the largest and most wide ranging blue water Navy, the U.S. is a maritime nation that must maintain its existing rights to passage throughout the world’s oceans and seas. Moreover, the U.S. is reliant on international shipping imports and restrictions on navigation will raise costs to U.S. consumers. These conflicts are concentrated in nations’ territorial seas and straits, although conflicts in the wider boundaries of the EEZ are emerging.
A natural effect of this split interest is that any one sided argument about the perils of the U.S. joining the Convention is immediately contradicted. For example, alarmist arguments that Convention nations have or will impose limitations on transit are contradicted by the fact that the U.S. does impose some limits to transit in our own EEZ and has plans to continue to do so. Indeed, the very fact that the U.S. has perhaps the world’s strongest interest in both protection of coastal resources and right of free transit on, under and above the ocean, is the most compelling reason to join the Convention. As four former U.S. Coast Guard Commandants stated in a letter urging the Chairman of the U.S. Senate Foreign Relations Committee to support accession to the treaty:
As a global maritime power and a nation with one of the longest coastlines, the United States has strong interests both in preserving freedom of the seas and in protecting our own coastal areas, including offshore marine resources. The Convention strikes the right balance between these sets of interests13.
Support for U.S. accession to the Convention is surprisingly broad14. Some of the architects of plans to scuttle the Convention treaty under the Reagan administration have now come around to support it because the more odious provisions were amended or eliminated since that time15 The Navy, Coast Guard, National Oceanic and Atmospheric Administration, the State Department and the White House, support accession. These groups support accession despite the fact that they occasionally squabble over its implementation, largely due to the dual interest of the U.S. (e.g., the environmental protection mandate of the Coast Guard vs. the security mandate of the Navy has put these two forces at odds in the past16). Likewise, major resource extracting industries and their trade groups, who are often at odds with environmental groups over regulations, share a common interest with many of these groups in ratifying the Convention. Finally, the most authoritative body on U.S. ocean science and policy ever assembled, the Joint Ocean Commissions Initiative, chaired by retired Navy Admiral James Watkins and former Congressman and White House Chief of Staff Leon Panetta, has indicated U.S. accession to the Convention as one of its highest priorities.