National Security, Economic Well-Being, and the Law of the Sea
A report from a panel of international ocean management experts on "the rationale for acceding, focusing specifically on the relevance of UNCLOS to national security and economic well-being."
[Question] How do the panelists respond to the objection that UNCLOS would infringe on U.S. sovereignty? Professor Caron answered that, if anything, UNCLOS represents a tremendous effort to preserve sovereignty in oceans, and expressed that he does not understand the argument that UNCLOS somehow diminishes sovereignty. Ambassador Balton agreed, adding that it is important to try and understand the objections to UNCLOS. He countered the notion the United States can depend on the Navy to assert sovereignty over the ocean, explaining that the Navy is a major advocate of UNCLOS because it is more effective and efficient to use the rule of law rather than military force. Commander Kraska also noted that most materiel moves by non-naval vessels, so it is important to have a regime that prevents other countries from blocking those materiel shipments.
[Question] Will there ever reach a point where the United States will have missed so many opportunities to participate in dispute resolutions, or negotiations pursuant to the Convention, that it will no longer will have an interest in joining? Ambassador Balton responded that delay does not mean it is somehow too late to join UNCLOS, but that it has real negative consequences. Even if the United States joined UNCLOS today, it would be some time before the Commission on the Limits of the Continental Shelf would make recommendations about the U.S. continental shelf.
[Question] Does UNCLOS deal with marine protected areas (MPAs) outside of the territorial sea? In particular, would UNCLOS affect the way the United States manages its non-fisheries MPAs in the Pacific? Ambassador Balton replied that UNCLOS permits, but does not require, the establishment of MPAs. He noted that the United States’ MPAs are consisted with UNCLOS. Professor Caron and Rear Admiral Kenney pointed out that not all MPAs worldwide are consistent with UNCLOS. Rear Admiral Kenney added that it is difficult to advance U.S. interests in freedom of navigation when the IMO considers designating a Particularly Sensitive Sea Area (PSSA) when the United States is not a party to UNCLOS.
In the final presentation, Ambassador David A. Balton discussed how ratifying UNCLOS would advance numerous U.S. interests. First, he noted that the United States is the world’s leading maritime power. Only as a party to UNCLOS can the United States best invoke and ensure respect for its provisions on freedom of navigation. Second, the United States has the largest EEZ on the planet, as well as a continental shelf that is likely to be the envy of most other nations. Only as a part can the United States best secure our rights as a coastal state under UNCLOS. Third, only as a party to UNCLOS can the United States make best use of the treaty’s provisions on the marine environment and fisheries, or shape the rules for mining the seabed beyond the jurisdiction of any nation. Ambassador Balton agreed with Rear Admiral Kenney that the United States would benefit from being able to use UNCLOS procedures for resolving disputes, adding that becoming a party would allow the United States to nominate members of the International Tribunal for the Law of the Sea. He also agreed that accession would allow the United States to maximize leadership on maritime issues. Further, Ambassador Balton emphasized that accession would better allow the United States to maintain the balance of interests in the law of the sea described by Professor Caron. Accession is preferable to reliance on customary international law because customary law is subject to erosion. Overall, Ambassador Balton explained that the United States secured everything it wanted in the convention, given that the related 1994 agreement on deep seabed mining satisfied our concerns with respect to those issues.
Next, Ambassador Balton discussed emerging issues that will best be handled under the UNCLOS framework. First, as the oceans warm the Arctic will become more accessible for shipping and oil and gas extraction, among other uses. All other Arctic nations are parties to UNCLOS, and the United States’ failure to join complicates negotiations and weakens our credibility in international talks. Second, Ambassador Balton emphasized the disadvantage we face as a non-party in respect of our extended continental shelf, the area of seafloor beyond 200 miles from our coasts that meet certain criteria set forth in the Convention. The United States estimates that it has an extended continental shelf approximately the size of California. Only as a party to UNCLOS can the United States best secure international recognition of the outer limits of our continental shelf.
Next, Rear Admiral Frederick J. Kenney presented the importance of UNCLOS to the U.S. Coast Guard. He emphasized that on a daily basis the Coast Guard’s operational officers rely on the freedom of navigation that UNCLOS attempts to preserve. The Coast Guard is the only U.S. surface presence in many parts of the world, and this widespread presence allows the Coast Guard to respond quickly to international incidents. For example, a Coast Guard cutter was the first U.S. presence in Georgia after Russian troops entered the country in 2008.
Because the United States is not a party to the Convention, however, Rear Admiral Kenney explained that the United States cannot use its dispute resolution mechanisms for resolving conflicting claims to ocean territory. In one important dispute, the United States and Canada disagree about whether Passamaquoddy Bay is part of Canada’s internal waters and thus whether Canada can block passage of commercial shipping through the bay to East Port, Maine. If plans for a liquid natural gas (LNG) terminal in East Port move forward, Rear Admiral Kenney predicts this dispute will intensify without any clear means of resolution.
Rear Admiral Kenney drew on his personal experience as a negotiator to discuss the difficulties the United States faces in negotiating other treaties because it is not a party to UNCLOS. As the primary regulator of U.S. shipping, the Coast Guard participates in treaty negotiations with the International Maritime Organization (IMO). However, the IMO’s primary treaties are inextricably linked to UNCLOS, and Rear Admiral Kenney opined that the United States loses credibility in IMO negotiations because it is not a party to UNCLOS. Further, Rear Admiral Kenney suggested that bilateral agreements regarding drug enforcement would be easier to negotiate if the United States were a member of UNCLOS because they would be able to incorporate UNCLOS’ enforcement mechanisms.