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U.S. intelligence collection activities at sea are not constrained by the Convention. This matter was fully reviewed at closed hearings before the SSCI and SASC in 2004. At the unclassified level we can comment that those Committees concluded, after receiving testimony from DoD, CIA, and DoS, that the Convention does not affect US intelligence collection activities. Those agencies confirmed that testimony in recent correspondence to the SFRC. With regard to innocent passage, the United States already obligates itself to abide by articles 19 and 20 of the Convention, and we are already formally bound to the same obligations in the 1958 Territorial Sea Convention.
In the end, ratifying UNCLOS would make sense because the U.S. follows the convention as a matter of policy and customary law. By not ratifying UNCLOS, the U.S. has given up access to pursue an extended continental shelf and access to the convention’s dispute resolution mechanisms. Nevertheless, the U.S. will still be held to most of the provisions as a matter of customary international law. However, when approaching the question from the point of view of the country’s Arctic interests, it appears inconsequential. As a member of the Arctic Council, and its declaration to follow UNCLOS as a group, the U.S. may have found a way into dispute resolution proceedings. Applying the lessons from the South China Sea arbitration award to this question furthers the idea that signing UNCLOS would not serve to further the U.S. interests in the Arctic. While using the ruling on features to limit Canada’s maritime entitlements in the Arctic is interesting, it is highly unlikely to ever come up. The main corollary between the ruling and real disagreements in the Arctic is the status of both the Northwest Passage and the Northern Sea Route. In each case, the ruling would aid the U.S.’s arguments that the routes are international passages. However, the Arctic Council provides its own mechanism for resolution, and may provide a window into UNCLOS mandatory proceedings.
Following the award in the matter of the South China Sea, is the U.S. better ratifying UNCLOS? Yes. While the U.S. has maintained that most UNCLOS is customary international law and as such has followed it, the U.S. is failing to take advantage of the provisions relating to the continental shelf. Also, they are losing out on an important dispute resolution tool. While the U.S. enjoys strong relationships with most arctic states, Russia is a notable exception. Russia has been increasingly aggressive worldwide, but they have no history of violating the law of the sea. By not acceding to UNCLOS, the U.S. has removed itself from the body of international law Russia seems to respect.
More broadly, the UNCLOS regime is part of the bedrock of the U.S.-led liberal order. As G. John Ikenberry argued in After Victory, since the Congress of Vienna, leading states have employed institutional strategies as mechanisms to establish restraints on arbitrary state power and embed a favorable and resilient international system. In this instance, the Convention and 1994 Agreement were negotiated during a time of U.S. ascendance and Western unity in international affairs. At ASIL, Myron Nordquist, Associate Director of the Center for Oceans Law and Policy, expounded on how UNCLOS reflects important U.S. interests regarding restraints on economic exclusive zone, continental shelf resources, innocent passage across the territorial waters, the passage rules for transiting straits and archipelagic sea lanes, and, of course, the high seas freedoms. U.S. ratification will serve to “lock in” these advantages, negotiated by the United States from a position of primacy in world affairs.
The South China Sea is another area of heated contestation where UNCLOS serves as the guidepost for clarity. Of notable importance is the ruling from the South China Sea arbitration that UNCLOS comprehensively allocates rights to maritime areas thereby precluding historic claims like China’s “Nine-Dash Line.” From this principle, the arbitral tribunal systematically refuted China’s extensive claims and actions in the South China Sea beyond the treaty’s carefully crafted limitations. In the view of Washington, these limitations include undue attempts to curtail the freedoms of navigation and overflight in exclusive economic zones (EEZs). Notably, China takes an opposing view and asserts the ability to prohibit foreign military operations in its claimed EEZs. Thus, although the United States remains neutral on competing claims in the South China Sea, Washington has a compelling national security interest in upholding the substance of the arbitral tribunal’s ruling.
Like U.S. claims in the Arctic, the United States’ legal rights in the South China Sea are not academic. As reported by Ronald O’Rourke, a U.S. naval affairs analyst, the EEZ legal dispute between Washington and Beijing has led to significant confrontations between Chinese and U.S. ships and aircraft in and above international waters. For example, in August 2014, a Chinese J-11 fighter dangerously intercepted a U.S. P-8A Poseidon, a naval reconnaissance aircraft, operating in the South China Sea approximately 117 nautical miles east of Hainan Island. Thanks to the arbitral tribunal’s artful debunking of the nature of Chinese-claimed maritime features and related entitlements, there is greater legal clarity on U.S. operational rights in the South China Sea. By formally joining UNCLOS, the United States will be in a stronger position to support the ruling of the arbitral tribunal in the face of Chinese opposition.
Given that the United States has not ratified UNCLOS, U.S. nationals may not serve as members of the Commission on the Limits of the Continental Shelf. It is not clear whether the United States, as a non-state party, can even make a legally recognized submission to the commission to assert its claim and fully protect its proprietary rights and energy interests. In contrast, Russia, which may be entitled to almost half of the Artic region’s area and coastline, has already made its submission for vastly extending its continental margin, including a claim to the Lomonosov Ridge, an undersea feature spanning the Arctic from Russia to Canada. Russia and Canada are the two countries with which the United States has potentially overlapping extended continental shelf claims.
This maritime boundary dispute is no small matter. The U.S. Geological Survey estimates that the Arctic holds 22 percent of the world’s undiscovered oil and gas, amounting to more than 412 billion barrels of oil equivalent. Legal certainty in maritime delimitation is critically important for Arctic states and their respective energy companies. On June 8, 2012, Rex Tillerson, as chairman and CEO of ExxonMobil, wrote to the Senate Foreign Relations Committee to vociferously urge U.S. accession to UNCLOS:
“Perhaps the best example of the need for certainty in an area with great unexplored potential involves the Arctic Ocean…Several countries, including the United States, are provided with a claim to extended exploitation rights under the application of UNCLOS in the Arctic. The legal basis of claims is an important element to the stability of property rights.”
In the absence of treaty ratification, Tillerson noted that the United States suffers from the dual disadvantage of having both a cloud over the international status of U.S. claims and a weakened ability to challenge other states’ conflicting claims.
Comments made during and shortly after the UNCLOS negotiations shed light on how participants intended the Convention to be interpreted. Ambassador Tommy T.B. Koh from Singapore, the President of UNCLOS III,32 recognized that the text of UNCLOS did not explicitly provide clarity on permissible military conduct in the EEZ, but he noted "it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted."33 Furthermore, Ambassador Koh has spoken about certain coastal states trying to apply territorial sea sovereignty rights in the EEZ, which he noted "is not consistent with the intention of those of us who negotiated this text, and is not consistent with the correct interpretation of this part [Part V] of the Convention."34 The United States further points out that of the few statements made by China at the time of ratifying UNCLOS, only one related to military activities.35 The statement related only to activities in the territorial sea, saying nothing about China's objections to military activities in a coastal State's EEZ.
China recently acknowledged that it too conducts surveillance and marine data collection in the EEZ of foreign states, including the United States.24 On June 1, 2013, at the maritime security session of the Shangri- La Dialogue, high-ranking Chinese military officials confirmed that China has sent its ships into the United States' EEZ.25 U.S. Admiral Samuel Locklear, Commander of U.S. Forces in the Pacific, confirmed that China's Navy has "started 'reciprocating' the US Navy's practice of sending ships and aircraft into the 200-nautical mile zone off China's coast."26 This activity is ironic because China continues to intercept foreign military and fishing vessels, the United States included,27 and attempts to force them to leave.28 In March 2009, for example, a China Maritime Surveillance patrol vessel intercepted the USNS Impeccable, a U.S. Navy vessel,29 while it was conducting a military survey in China's EEZ.30 The Impeccable was radioed by the Chinese patrol vessel and told that it shouldn't be operating "without the permission of the Chinese government."31
But don’t just take it from me. What’s far more important is that UNCLOS ratification is supported by:
- The current President, Secretary of State, Secretary of Defense, Chairman of the Joint Chiefs of Staff; and the heads of the U.S. Maritime Services: Navy, Marine Corps, and Coast Guard
- All their living predecessors, from Republican and Democratic administrations alike26
On how many issues does one witness this sort of unanimity across parties, agencies, and time? These people are true experts: not just on theory, but on how things play out in policy practice. There is a compelling reason for their unanimity: U.S. UNCLOS ratification is a great idea whose time has more than come.
Additionally, we need to reinforce the global institutions that the Law of the Sea was designed to create and support. This entails underwriting with our power and example peaceful dispute resolution based on international law and international institutions. Among these, the United States must ratify the UN Convention on the Law of the Sea (UNCLOS). As Peter Dutton testified before the House Foreign Affairs Committee in 2014, “American policy makers must realize that the contest for East Asia is one of both power and law. ... Acceding to [UNLCOS] and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. ... My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.”25 Once again, I agree fundamentally with my colleague.