Evidence: Recently Added
Arguments against the United States becoming a party to UNCLOS are not persuasive given the evident and rising costs of remaining outside the treaty. Reservations based on the deep seabed mining regime, which was the basis for President Ronald Reagan’s rejection of the treaty in 1982, were addressed by the 1994 revisions made to UNCLOS during the Clinton Administration. Other objections are based on concerns that ratification would expose the U.S. to broad liability for environmental damage in international courts; obligate the U.S. to transfer technology; require the U.S. to transfer royalties to the International Seabed Authority and give the United Nations the ability to impose taxes on U.S. citizens; and damage U.S. national security by restricting the ability of the U.S. to conduct activities such as maritime interdiction operations and gathering maritime intelligence.
Treaties by their very nature impose some constraints as part of the process of establishing international norms and rules. Presidents Bill Clinton, George W. Bush, and Barack Obama backed the treaty and urged Senate ratification, to no avail. Supporters of UNCLOS ratification include a broad American constituency composed of the U.S. military as well as actors in the energy, shipping, fishing, shipbuilding, and communication industries, as well as environmental groups. The clear benefits of becoming a party to the treaty outweigh the potential costs. It’s well past time to leave the small group of countries that refuse to join treaty, which includes North Korea, Iran, Syria, Libya, and Venezuela, and side with the 167 countries that are UNCLOS state parties.
Ratifying UNCLOS would bolster American moral authority and legitimacy on international maritime issues at an important time. Doing so would eliminate one of Beijing’s justifications for rejecting the July 12 international Arbitral Tribunal ruling against China’s claims in the South China Sea—that the U.S. is hypocritical since it is not a party to the treaty. Frankly, it also confounds America’s allies that the U.S. calls for all nations to uphold the values, principles, and rules-based order that has produced security, stability, and prosperity for all, but refuses to ratify UNCLOS. The Commander of the U.S. Pacific Command, Adm. Harry Harris, noted the cost to America’s reputation in a House Armed Services Committee hearing last February: “I think that in the 21st century our moral standing is affected by the fact that we are not a signatory to UNCLOS.”
Becoming a treaty member would help advance U.S. interests in promoting multilateral cooperation on a range of issues globally. For example, it would aid in building coalition partnerships in the Global War on Terrorism and the Proliferation Security Initiative, and help support multinational efforts to combat piracy.
Our failure to ratify the treaty also undermines our ability to fully work with our allies and partners in the South China Sea region. If we are not party to UNCLOS, it is difficult for the United States to rely on the treaty to determine the legal entitlements of mid-ocean features, which claims are lawful, and what exactly constitutes the high seas. It’s also harder for us to suggest it as the basis for resolving claims and arbitrating disputes — or to rely on EEZs drawn under UNCLOS’s auspices. Moreover, a broad set of stakeholders including the U.S. Chamber of Commerce, environmental organizations, the military, and industry specific trade groups representing commercial fishing, freight shipping and mineral extraction all support U.S. accession to the treaty. Perhaps most importantly, our military leaders have stated that U.S. participation will help them maintain navigational rights — and with less risk to the men and women they command.
It has been long-standing policy that the United States does not take a position on the ultimate disposition of the competing maritime and territorial claims made by China and other countries in the South China Sea. But we do have a position on how the claims are adjudicated, and on how questions related to the different features — reefs, rocks, shoals and islands — are classified under international law.
Unfortunately, China has vociferously stated that it will disregard the tribunal ruling, repeating this posture after the announcement of the ruling. In so doing it has elevated this case to a test for the regional and international community: If China and other states in the region disregard the arbitral ruling — discarding UNCLOS in the process — it will be a grave blow to regional order and the international system.
Today is a day for nations to choose between continuing to build a world of rules, law, and order, or a return to a world of growing volatility and great power politics. I call on my Senate colleagues on both sides of the aisle to join me in stating our commitment to ratifying this critical treaty when the new Congress convenes in January 2017.
Congressional ratification of UNCLOS will help secure U.S. interests in the Asia-Pacific region, and will reaffirm the principles of freedom of navigation in international waters and airspace in accordance with international law. Few actions could be more important as we contemplate the choppy waters we must now navigate to secure and safeguard U.S. interests and values in the region, and as we support our partners and allies in building a stable, prosperous rules-based order in the Asia-Pacific.
Washington’s outsider position undercuts its message as it urges China to respect global maritime norms. After all, China ratified UNCLOS in 1996, even if Beijing now says it rejects any judgment by the Permanent Court of Arbitration. In a speech in Washington earlier this month, retired Chinese top diplomat Dai Bingguo accused the U.S. of “heavy-handed intervention” in the South China Sea. “Accidents could happen,” said the still influential Chinese Communist Party official, “and the South China Sea might sink into chaos and so might the entirety of Asia.” Still, even as Beijing has launched a public-relations blitz ahead of the July 12 ruling, Chinese state media and diplomatic statements have not highlighted America’s AWOL status in UNCLOS. Perhaps critiquing the U.S. absence is harder when China itself is distancing itself from one of the treaty’s utilized tribunals.
It’s true that even if Congress hasn’t ratified UNCLOS, the U.S. Navy, which is the world’s largest, adheres to its principles. American top brass openly support U.S. ratification. “I think that in the 21st century our moral standing is affected by the fact that we are not a signatory to UNCLOS,” said Admiral Harry Harris, head of the U.S. Pacific Command, in testimony to the House Armed Services Committee earlier this year.
In a June speech at the U.S. Air Force Academy, U.S. President Barack Obama urged Congress to move ahead on UNCLOS. “If we’re truly concerned about China’s actions in the South China Sea,” he said in his commencement address, “the Senate should help strengthen our case by approving the Law of the Sea convention, as our military leaders have urged.” But ratifying the convention will require a two-thirds majority in the Senate, an all but impossibility particularly in this contentious election year. The U.S. Navy will continue to ply the high seas, acting as the world’s oceanic policeman by engaging in freedom-of-navigation exercises to ensure open trade routes. But American hypocrisy when it comes to maritime rule of law looks likely to endure.
Increased oil and gas development will adversely affect the Arctic through increased oil spills and development infrastructure.14 Oil spills are more likely in the Arctic because oil tankers are not built to withstand collisions with sea ice, which is becoming more mobile and unpredictable as the Arctic warms.15 Oil spills are especially dangerous in the Arctic because of the region’s cold temperatures, which decrease rates of oil decomposition, resulting in the elimination of wildlife habitats and feeding grounds affected by any spills.16 Elimination of habitat and feeding grounds will have a profound effect on Arctic species, which rely on a short food chain that can be fatally disrupted by the loss of even a single species.17 These adverse effects will be compounded by increased oil and gas development infrastructure, which will include an array of new support facilities on land, oil rigs at sea, on- and off-shore pipelines, and increased air, land, and sea transportation.18 This infrastructure will interfere with wildlife feeding, breeding, rest, and migration.19 The Arctic is, by its nature, an unusually vulnerable environment and global warming compounds this vulnerability.20 The adverse effects of increased oil and gas exploration would even further aggravate the region’s vulnerability.21
The assertion that the US can enjoy all of the rights enjoyed afforded to State Parties without itself actually becoming a signatory rests on an illusory interpretation of how customary international law is applied. Customary international law, along with treaties, are the only two sources of international law considered to be binding.186 Customary international law is formed by the convergence of two fundamental elements: State practice (usus) and the corresponding views of States that a particular norm exists (opinio juris).187
Taking into account how customary international law is formed, consider opponents' reliance on a Department of Defense Ocean Policy Review Paper from 1993,188 expressing that the Department of Defense's Freedom of Navigations Program was actively preserving the fundamental freedoms of navigation and over-flight.189 However, from 2007-2012, the number of countries the United States has challenged under this same program has tripled.190 This manifestly indicates a change in State practice and, thus arguably, a change in customary international law. Continuing to rely on an over twenty-year-old policy paper is doctrinally antithetical to customary international law and severely inadequate for preserving US maritime interests. Therefore, from a national security perspective, UNCLOS is now a more important legal regime than it was a few decades ago.191 Continued dependence on hard power and gunboat diplomacy is not a sustainable option for US foreign policy going forward.192
Since UNCLOS would not require any change in US maritime policy, some have argued that there is, therefore, no appreciable benefit to joining the Convention. On the contrary, UNCLOS would equip the US with certain diplomatic tools that would otherwise be unavailable.178 Proponents concede, however, that operationally nothing would change in terms of US Naval procedure.179 Nevertheless, it remains difficult to deny that UNCLOS would provide measurable benefits towards the US Navy's ability to achieve its maritime objectives.180
For example, at one point, the Libyans had a very restrictive interpretation of freedom of the seas as it applied in the Gulf of Libya.181 During this time the United States pursued a policy where it would deliberately sail out into waters, considered by the Libyans, as waters in which they possessed a greater degree of jurisdiction than the United States recognized.182 Such policies involved a considerable amount of risk placed on both the forces undertaking the exercises in question, and on aggravating an already delicate diplomatic situation. Therefore, although the US will always exercise its navigational rights, the tools available within the UNCLOS framework reduce the level of risk inherent in the continual exercise maritime power in order to maintain freedom of navigation.183 Another example of the diplomacy enhancing features UNCLOS is illustrated through China, a UNCLOS State-party, who has drawn widespread criticism for its exaggerated jurisdictional claims with respect to the South China Sea, way beyond that of what is legally afforded to it under UNCLOS.184 However, as it stands today, the United States is placed in quite the diplomatic quagmire, attempting to deter Chinese derogation from UNCLOS principles that itself has failed to formally agree to. Indeed this, along with other similar endeavors have consistently been undermined due to the tenuous diplomatic position of insisting compliance with a legal regime which the US itself is not even a party.185
Every Chairman of the US Joint Chiefs of Staff has supported UNCLOS since it was originally sent to the Senate for advice and consent in 1994.174 Joining UNCLOS would in no way impede the US military in accomplishing its global objectives or in asserting maritime power. Every commander of the various US combatant forces as well as the Director of National Intelligence has confirmed this claim.175 Additionally, joining UNCLOS would require the military to make no changes to existing policy with respect to the use of oceans.176 In other words, UNCLOS would not adversely affect the US military in any way; in fact, acceding to the Convention would significantly enhance US strategic goals and strengthen US ability to apply maritime power effectively.177
Every financial concern raised against UNCLOS has been expressly rebuked by US industry; in fact, nearly every major US business possessing maritime interests has publicly and unequivocally supported US accession to the Convention.101 For example, the American Petroleum Institute (API) has repeatedly asserted that its members will not risk investing the billions of dollars required to drill in the US ECS without the legal certainty UNCLOS offers.102 Consequently, as long as the US remains outside the UNCLOS framework, it cannot receive any of the royalties it would otherwise be entitled to from the petroleum industry were ECS drilling to commence. As one UNCLOS proponent expressed, “it’s better to have 93% of something, than 100% of nothing.”103 Therefore, as it stands today, it would be more accurate to characterize UNCLOS, as it relates to the costs to comply, as a squandered source of revenue, as opposed to a financial liability.