A Response to Cartner’s and Gold’s Commentary on “Is it Time for the United States to Join the Law of the Sea Convention?”
More importantly, having a “seat at the table” is just that – one nation, one vote. And, clearly, the last two decades have witnessed a continued decline in U.S. diplomatic and economic influence in multilateral negotiations (e.g., ￼Ottawa Convention on the Prohibition of the Use, Stockpiling, Production ￼and Transfer of Anti-Personnel Mines and on their Destruction (1997); ￼Kyoto Protocol to the UN Framework Convention on Climate Change ￼(1997); Rome Statute of the International Criminal Court (1998); 2008 Oslo ￼Convention on Cluster Munitions, to name a few.) Additionally, do the ￼authors really believe that Canada and Russia will change their positions ￼regarding the status of the waters of the Northwest Passage and the Northern ￼Sea Route/Northeast Passage or that they will rescind their illegal straight ￼baselines in the Arctic if the United States joins the Convention? Or that ￼China will change its position regarding the legality of military activities in ￼the EEZ or that Beijing will rescind its illegal straight baselines along its ￼entire coast or relinquish its illegal claims to the South China Sea islands and ￼their surrounding waters? U.S. accession to the Convention will have ￼absolutely no impact on these or other nations’ illegal maritime claims. The ￼only way to effectively challenge these excessive claims and prevent them ￼from becoming ingrained in customary law is through routine, firm and tar- ￼geted diplomatic protests by the State Department and frequent operational ￼challenges by DoD ships and aircraft. But to do that, we need to maintain ￼naval superiority, and have the political will to exercise it.
UNCLOS proponents have also recently argued that it is imperative that the United States join the Convention before it is amended by the states parties. Failure to do so, they argue, may later force the United States to accept a modified Convention “as is” with amendments that are contrary to U.S. interests.17 Such an argument is untenable at best and ignores a plain reading of Article 316 of the Convention, which provides in part:
4. A State which becomes a Party to this Convention after the entry into force of an amendment . . . shall, failing an expression of a different intention by that State: (a) be considered as a Party to this Convention as so amended; and (b) be considered as a Party to the unamended Convention in relation to any State Party not bound by the amendment (emphasis added).
In other words, if the United State were to accede to UNCLOS after an unfavorable amendment had entered into force, Washington could simply indicate that the United States would not be bound by that amendment. Such efforts to sensationalize the importance of joining UNCLOS by making incorrect statements of the law not only detract from the debate but also significantly undercut the legitimacy of the need to accede to the Convention.
Moreover, what state is going to complain if the United States claims an extended continental shelf in the Arctic – certainly not any of our Arctic neighbors? We have an existing maritime boundary with the Russian Federation in the North Pacific Ocean, the Bering and Chukchi Seas, and the Arctic Ocean, which is being provisionally applied through an exchange of diplomatic notes pending ratification by the Russian Duma.14 And talks are ongoing to resolve our long-standing but rather small maritime dispute with Canada in the Beaufort Sea. In May 2010, the Canadian Minister of Foreign Affairs sent a clear message to Washington to begin serious discussion on the issue, indicating that there was no reason why Canada and the United States could not resolve the ongoing boundary dispute “as economic partners and best friends, sharing the longest border in the world.”15 Talks to resolve the dispute began in July 2010.16 More importantly, a careful read of the 2002 USGS Arctic report notes that the overwhelming majority of likely oil and gas reserves in the Arctic are located on land, in the 12 nm territorial sea or within the 200 nm EEZ of one of the littoral nations. Most of the Arctic oil and gas reserves are in areas under U.S. and Russian control, respectively. And a strong Navy is the best insurance to keep “outside bidders” like China from infringing on our right to exploit the natural resources on the U.S. extended continental shelf.
While I agree completely with Cartner and GoldJournal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that UNCLOS “reduces uncertainty and confusion for all states parties” claiming an extended continental shelf, the United States must be prepared to act unilaterally if the Senate does not give advice and consent in the near future. Clearly, as indicated in the NWC Global Shipping Game report, accession to UNCLOS would provide greater certainty and predictability “of the future security and political environment that industry desires in order to invest in economic development of the Arctic region.” However, even without U.S. accession, if there is money to be made, U.S. industry will invest in the region if the U.S. Navy is there to guarantee and protect access. Therefore, while unilateral action may not be the “best” option, it remains a viable (and perhaps the only) option and we should not undercut our ability to claim an extended continental shelf based on the 1958 Continental Shelf Convention by allowing Administration officials to incorrectly state that the United States can only claim an extended continental shelf if we join UNCLOS. Fortunately, not all Administration officials are misinformed on the law. While recognizing the importance of UNCLOS, Margaret Hayes, the chair of the Department of State Extended Continental Shelf Interagency Task Force, acknowledged that “the existence of an extended continental shelf does not depend on a coastal nation having joined the convention” and “that there are other ways to establish what the outer limits might be (emphasis added).” "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”."
While I agree with Cartner and GoldJournal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that membership on the CLCS would not harm US interests, they once again over-dramatize the importance of having a “seat at the table.” Statements like: “without a seat the US has neither eyes nor ears;” “informal networking . . . [would be] greatly restricted;” “a seat provides the government valuable strategic intelligence for little cost”; and “it would be better to have a representative at the table who would understand and report on the dynamics of the CLCS;” are not only inaccu- rate, but also reflect the authors’ lack of understanding of how the CLCS operates. The CLCS scientific and technical guidelines are publicly available on the Internet.19 Members of the CLCS take an oath to “perform [their] duties as a member of the Commission . . . honorably, faithfully, impartial- ly and conscientiously (emphasis added).”20 Additionally, “in the performance of their duties, members of the Commission shall not seek or receive instructions from any Government or from any other authority external to the Commission [and] they shall refrain from any action which might reflect negatively on their position as members of the Commission (emphasis added).”21 What Cartner and Gold appear to be suggesting is that a U.S. member of the CLCS should act as a double-agent for the U.S. Government, secretly passing information to Washington on the deliberations of the Commission. Such behavior would clearly violate the member’s “solemn declaration” under Rule 10, significantly undermining U.S. credibility, and bringing discredit on the U.S. Government. "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”."
Of greatest concern, however, is the growing number of states that illegally claim the authority to restrict military activities out to 200 nm – 26 to be exact.26 These claims are not supported by a majority of states, the negotiating history of UNCLOS III or a plain reading of the Convention. These nations inaccurately and illegally cite various provisions of UNCLOS, such as the residual rights clause in Article 59 and the peaceful purposes provi- sions in Articles 88, 141 and 301, as their authority for their excessive claims. However, these provisions are entirely spurious and do not support restrictions on military activities in the EEZ.27 In fact, the plain reading and negotiating history of these provisions indicates the exact opposite conclusion. U.S. accession to the Convention isn’t going to change these nations’ self-serving and inaccurate views.
In theory, I agree with Messrs. Cartner and GoldJournal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that “customary law . . . is not as good as conventional law” because customary law is subject to change and written words of a treaty should provide more certainty. However, I do question their follow-on conclusions that customary law is “certainly not as efficient in resolving disputes between sovereigns for maintaining global order” and that UNCLOS, “being nearly universal, takes away a great deal of the uncertainty in the application of customary law for all cases.” Although I concur that UNCLOS was a great achievement and that the United States got much of what it wanted in the treaty text, like any other “framework” agreement, it is subject to widely varying interpretation or even misapplication by States Parties. As a result, UNCLOS has unfortunately not had a dispositive calming influence on dispute settlement or pre- vented the continued proliferation of excessive maritime claims. "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”."
Today, excessive maritime claims continue to proliferate, particularly in the area of straight baselines and coastal state jurisdiction in the EEZ. Although the international community has witnessed a decline in the num- ber of excessive territorial sea claims (only nine remain today) , there are still three States Parties to the Convention that continue to claim a territorial sea in excess of 12 nm, even though UNCLOS Article 3 specifically and clearly limits the breadth of the territorial sea to 12 nm.22 In addition, over 40 nations restrict the right of innocent passage for warships in one way or another, even though efforts during The Third United Nations Conference on the Law of the Sea (UNCLOS III) to provide coastal states such authority failed to achieve majority support. Furthermore, the plain language of Article 17 specifically states “ships of all States . . . enjoy the right of inno- cent passage.”23 Although all of these illegal claims have been the subject of diplomatic protests or operational challenges by the United States, U.S. accession to UNCLOS will not cause these nations to rollback these excessive claims.
Like Borgerson and PickeringClimate Right for U.S. Joining Law of Sea Convention — Scott G. Borgerson and Ambassador Thomas R. Pickering. — Council on Foreign Relations — Dec 23, 2009 [ More ], Messrs. Cartner and GoldJournal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] argue that, “without ratification of UNCLOS, the US has even less maritime standing in the community of nations, and its contributions will rapidly be marginalized or seen as irrelevant.” U.S. Administrations have been making this same argument for the past 20 years, yet I see no evidence of lost U.S. standing in fora like the International Maritime Organization (IMO), where U.S. leadership remains strong. As discussed in my earlier article, the IMO, not the Meeting of States Parties to UNCLOS, will shape the law of the sea of the future. That is where the United States needs to maintain its focus and level of effort. Under the capable leadership of the U.S. Coast Guard, U.S. delegations have successfully adopted a series of new and amended IMO instruments that enhance maritime safety, maritime security and maritime trade. My only concern is the apparent shift in focus at the IMO from a maritime nation to a coastal nation perspective that fails to balance national security interests with environmental and homeland security interests. This change in focus has been driven, in part, by concerns over strengthening maritime homeland security following 9/11 and by the shift in ocean policy leadership in the United States from NSC to CEQ.37 "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”."
Moreover, if I were looking for other sections of the Convention to help support U.S. accession efforts, I certainly would not rely on the fisheries provisions of UNCLOS. As the authors know, UNLCOS Article 56 grants coastal states sovereign rights over the living and nonliving resources of the EEZ, where most fish stocks are located. Under Article 61, the coastal state has absolute authority to “determine the allowable catch of the living resources in its . . . [EEZ].” If the coastal state does not have the capacity to harvest the entire allowable catch, Article 62 provides that other states shall be granted access to the surplus. However, neither the decision to determine the allowable catch nor the allocation of the surplus is subject to compulso- ry dispute settlement.38 Then, of course, there is the problem of straddling fish stocks and highly migratory species that occur within the EEZs of more than one country, as well as anadromous stocks and catadromous species that migrate through more than one EEZ, that are not adequately regulated by UNCLOS Articles 63, 64, 66 and 67.
More importantly, however, most states lack the capacity to manage their fisheries resources in the EEZ. For example, the Food and Agriculture Organization (FAO) estimates that 1.6 million tons of fish are stolen every year from Indonesian waters, which includes 2.7 million square kilometers of EEZ.39 This is due to the limited number of patrol ships that Indonesia has available to patrol and safeguard its archipelagic waters and EEZ. Similarly, the archipelagic state of Cape Verde has an EEZ the size of land territory of France – 800,561 square kilometers – but only has five patrol boats and one aircraft to patrol these waters.40 This lack of capacity by many developing nations to patrol and regulate their waters encourages illegal and unregulat- ed fishing, which in turn, leads to conflict and over-exploitation, not peace- ful and controlled uses of the sea. There is also little evidence that the majority of coastal states are effec- tively managing fish stocks in their EEZs. On the contrary, a 2008 report prepared by OCEANA indicates that only “17% of the world’s fisheries should be considered capable of any growth in catch” and that over 80 % “cannot withstand increased fishing activity . . . .”41 Similar findings were published by the UN Food and Agriculture Organization in 2010:
The proportion of stocks estimated to be underexploited or moderately exploit- ed declined from 40 percent in the mid-1970s to 15 percent in 2008. In con- trast, the proportion of overexploited, depleted or recovering stocks increased from 10 percent in 1974 to 32 percent in 2008. . . . In 2008, 15 percent of the stock groups monitored by FAO were estimated to be underexploited (3 per- cent) or moderately exploited (12 percent) and, therefore, able to produce more than their current catches. This is the lowest percentage recorded since the mid- 1970s. Slightly more than half of the stocks (53 percent) were estimated to be fully exploited and, therefore, their current catches are at or close to their max- imum sustainable productions, with no room for further expansion. The remaining 32 percent were estimated to be either overexploited (28 percent), depleted (3 percent) or recovering from depletion (1 percent) and, thus, yield- ing less than their maximum potential production owing to excess fishing pres- sure in the past, with a need for rebuilding plans. This combined percentage is the highest in the time series. While the degree of uncertainty about these esti- mates may be great, the apparently increasing trend in the percentage of over- exploited, depleted and recovering stocks and the decreasing trend in underex- ploited and moderately exploited stocks do give cause for concern.42
Consequently, UNCLOS has had little or no impact on stabilizing the world’s fisheries and arguably has contributed to their continued decline and added the potential for conflict.