Revision of Adversaries using U.S. absence from UNCLOS to modify martime law in ways adverse to U.S. interests from Tue, 02/08/2022 - 16:11
As the pre-eminent global maritime power, the U.S. has significant interests in the global effect of the Convention’s rules and their interpretation with many issues that of greater concern to us than to most other countries (for example, preserving freedom of navigation rights). Our adversaries view this as a weakness they can exploit and are shaping the course of the convention in ways adverse to U.S. interests while the U.S. remains on the sidelines, unable to participate in the discussion as a non-party.
Quicktabs: Arguments
For most U.S. observers, however, U.S. participation in Convention institutions and meetings of States Parties can help shape the future direction of the law of the sea in ways favorable to U.S. commercial, fishing, environmental, and military interests. The law of the sea will inevitably change through a wide variety of mechanisms. Some proposals for change could be made from "within" the Convention system-perhaps by formal amendments,63 or even potentially at meetings of States Parties.64 America's taking its place as a State Party to the Convention can help promote U.S. views. For example, its participation in the work of the ISA can help assure that the Authority does not attempt to stretch its mandate to impinge on what many assert to be the freedom to harvest deep-sea-vent living organisms, which are important resources in biotechnology.65 As a State Party, the U.S. would also have more leverage with respect to the Article 311 obligation that subsequent agreements between States Parties be compatible with the66 Convention.
The real threat to U.S. oceans interests is not the United Nations, but the relentless campaign by nongovernmental organizations (NGOs) such as Greenpeace in conjunction with certain coastal countries, including close U.S. allies such as Canada and Australia, to unilaterally impose maritime rules to restrict international shipping on the oceans and aircraft overflight of the seas for purported environmental reasons. For example, a group of Western European states pushed for a ban on single-hull tankers from a vast area of international waters in the Eastern Atlantic, and in 2006 the European Commission suggested in a report that the navigational freedoms in the Law of the Sea Convention should be revised to expand coastal state jurisdiction over transiting vessels.
John Bolton, former U.S. ambassador to the United Nations, describes this type of partnership between NGOs and some like-minded governments as norming ... the idea that the U.S. should base its decisions on some kind of international consensus, rather than making its decisions as a constitutional democracy. He adds, It is a way in which the Europeans and their left-wing friends here and elsewhere try and constrain U.S. sovereignty. The rules emerging from this process weaken the navigational freedoms the United States relies on to ensure submarines can transit through the world's choke points and ships serving as sea bases in coastal waters can launch military operations.
Among the benefits the U.S. will receive from UNCLOS membership is the ability to have a judge of U.S. nationality serve on the ITLOS and the right to participate in the amendment process of the treaty as provided for in Article 312. The power to amend the treaty is vested in the parties 10 years after the treaty has entered into force.18 The 10-year anniversary was November 16, 2004. The U.S. would be entering the game just as amendments become possible. Admittedly, the question of amendment to such a comprehensive legal instrument is fraught with difficulties, but U.S. membership ensures that any future amendments will only be adopted when the U.S. is a full participant in the process.
Similarly, less friendly countries such as China, Iran, and North Korea have sought to impose control over the ocean out to 200 miles off their coastlines by establishing security zones. Both types of proposed coastal-state regulations place at risk U.S. economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing coastal states at their whim to deny use of the global commons. These proposed restrictions by coastal states attempt to diminish or impair the right of freedom of navigation enjoyed by mariners for two millennia.
All of the countries mentioned above already belong to or have signed the convention, but are trying to change it through reinterpreting its terms. China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high-seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law. By declining to become a member of the treaty, the United States has so far ceded the opportunity to influence and shape international norms, thereby yielding to states trying to popularize their restrictive approach to navigational rights.
South Carolina Sen. Jim DeMint, when leading the opposition to the treaty as it was being debated in 2007, said We know from international groups like the U.N. that many signers of these agreements do not act in the best interest of the United States or the world. He is correct, of course, but the United States' failure to ratify only empowers these states to set maritime rules without a U.S. seat at the table. DeMint's argument is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one's political opponents have already staked out objectionable positions.
US accession to the UNCLOS regime would also enable and facilitate full US participation in how the law of the sea is further defined, applied, and modified. The 1982 Convention marked the end of the Third UN Conference on the Law of the Sea (UNCLOS III). It did not mark the cessation of the evolution and development of this branch of international law. And yet, the international community, by and large, has decided to pursue this process of evolution and development in the context of the UNCLOS regime. This alone speaks to the importance of securing the participation of all major ocean states. US non-participation compromises this. In essence, US non- participation denies the US a 'place at the table' within key institutions created as a consequence of the Convention and related agreements. For example, as a non-party the US has no representative on the International Tribunal on the Law of the Sea (ITLOS) and is ineligible to put forward a member of the Commission on the Limits of the Continental Shelf (CLCS). This is surely problematic from a US perspective. As noted above, the Convention is now widely accepted as the basis for global oceans governance yet the law of the sea continues to evolve and change. Without US input, the international law of the sea is likely to be shaped in a manner that does not fully take into account US national interests. This is why complacent arguments that the US can take advantage of the benefits that the Convention offers on the basis that it is reflective of customary international law, whilst avoiding the costs of participation are flawed. Such a strategy represents a distinct abdication of responsibility that carries with it the long-term risk that international custom will ultimately run counter to US interests.
The example of China and Russia's flouting of the convention's norms also presents the possibility that the treaty could be renegotiated to become more favorable to those countries' interests. UNCLOS as currently written is extremely favorable to U.S. interests, codifying the rights of freedom of navigation and passage that are important to maintaining its global power status, according to Titley.
“The real strategic threat for us not being a [party to UNCLOS] is if anybody at some point wants to change the rules of the game … we're not going to have a seat at that table,” Titley said. UNCLOS “basically codifies up a world in which the U.S. is kind of the number one dog. And so now by not ratifying this, as the world changes, and maybe if that situation changes, we're not even going to be in the room when—if this ever gets looked at again. … It's frankly pretty hard to see that another [international legal] regime would be as friendly to U.S. interests as is UNCLOS. That's a real danger.”
Another key risk connected with the United States not being a party to the treaty is that the treaty itself is weakened by lack of U.S. participation, because it is important as a big coastal state and a major economy, according to Jensen.
The new institutions created by the Law of the Sea Conven- tion could at times decide matters affecting high seas freedoms, and the United States could contribute to such decisions if it participated as a member of these institutions. For example, could the International Seabed Authority promulgate mining-related environmental regulations restricting the scope of permitted activities at deep seabed vents where living organisms, as well as polymetallic sulfides, are found? U.S. participation in the work of the Authority could help to ensure that non-mining activities on the deep seabed, such as bioprospecting for living organisms at deep seabed vents (a part of the multi-billion dollar marine biotech business), continue to be regarded as high seas freedoms.65 U.S. interests in high seas freedoms also provide one impetus for U.S. participation in the work of the Conti- nental Shelf Commission, another institution created by the Convention. Overly expansive coastal state assertions of continental shelves beyond 200 miles from baselines would reduce the area of the oceans in which rights and freedoms are subject to the fewest restrictions.66 The United States could most effectively counter such assertions by participating as a member of this Commission. These participation or process concerns are illustrations of the general claim that accession to the Law of the Sea Convention is important to U.S. leadership on oceans issues.
Instead of reinforcing the existing international legal order, China is seeking to change the rules and norms that define international maritime rights. In the South China Sea, this results in friction, as China’s neighbors and the United States insist on preserving their maritime rights. Managing this friction will be challenging, but the United States and its regional friends and allies should continue to work together to encourage China to accept the existing norms and support the pillars of globalization rather than undermin- ing them. This perspective was reflected in the Department of Defense’s 2011 Annual Report to Congress on Military and Security Developments Involving the People’s Republic of China, which states, “The United States welcomes a strong, prosperous, and successful China that reinforces international rules and norms and enhances 29 security and peace both regionally and globally.” Unfortunately, that statement must still be taken as aspirational with regard to the laws, rules and norms that govern maritime security and provide order in the maritime global commons.
In truth, these norms have also been weakened by American neglect. Even as the Chinese have put pressure on the existing system, the United States has failed to exercise full, effective and active leadership. By its failure to ratify UNCLOS, the United States remains – along with such dubi- ous international companions as Iran and North Korea – fundamentally a spectator in a system that it largely created, that governs international relations and activities in the maritime domain and that has now been accepted by 161 states and the European Union.
Simply stated, accession to the Convention and adherence to its procedure based on a prolongation of Alaska's continental shelf would greatly facilitate American claims to Arctic resources, providing uniformity, predictability, and legal security. Accession also would demonstrate solidarity within the international community, bolstering a faltering reputation, and allow UNCLOS to "function as originally conceived."n369 Most important, ratification would give the U.S. a voice to assert its point of view and a recognized method to exercise jurisdiction within the Arctic.
Continuing to do nothing is an untenable position. It would be foolish and risky to assume that the U.S. can maintain ad infinitum the desultory and passive approach upon which it currently relies.n370 With the everincreasing pressure from coastal States to augment their authority in a manner that would alter the balance of interests struck in the Convention,n371 the United States "needs to be in the game, at the table."n372 Thus, unless UNCLOS is ratified, or a separate Arctic convention is negotiated, the United States will remain tenuously wedged between Scylla and Charybdis, unable to assert a recognized claim of sovereignty, influence international maritime policy, or make substantive changes to parts of the Convention it finds troubling.
One way to interpret the challenges emanating from the PRC is that Beijing resents a legal regime that appears to favor American security at the PRC’s expense. Unable to change the words of UNCLOS, the PRC argues—laboriously, at times—to persuade the United States that the spirit of the law clearly supports Beijing’s interpretation, even where the word of the law may be insufficiently precise.
Hence, Chinese and American analysts of UNCLOS dicker about the meaning of article 58(3), which reads: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.”16 PRC analysts point to the “due regard” clause as evidence of the obligation of foreign states to abide the laws of coastal states and the right of coastal states to restrict military activities in the EEZs off their coasts. American analysts tend to view this conclusion as smuggling into the article a privilege that was explicitly rejected by the drafters of the convention.
It is conceivable, of course, that advocates writing on behalf of the PRC offer interpre- tations of UNCLOS that are in fact meant to reopen and extend negotiations about issues that have, apparently, been settled. By challenging the understanding of what is permissible in the EEZ, the Chinese analysts may be hoping that other states will follow suit, adjusting what would then be seen as customary international law and hoping that the legal justifications they offer will likewise become the new norm. This, indeed, is precisely why some American proponents of UNCLOS argue that the United States must ratify the convention. For example, Rear Adm. Arthur E. Brooks, commander of the Seventeenth Coast Guard District, has said, “While reliance upon customary interna- tional law has served us well for many years, it does not adequately protect our interests. Customary international law is based on the evolving practice of States; it can and does erode over time. The Law of the Sea Convention provides the legal certainty and stabil- ity” that the admiral believes would assure U.S. interests for the long term.17
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The author argues that "it’s time for fellow seafaring states to mount a more vocal, more forceful defense of freedom of the seas" and challenge China's excessive claims.
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