Revision of The U.S. should Ratify the U.N. Convention on the Law of the Sea (UNCLOS) from Thu, 07/10/2014 - 09:10
We support joining the Convention because it is in our national interest--both in our national security and our economic interests. The Chamber has a long and proud history of supporting America's national security interests including playing an instrumental role in mobilizing America's industrial might to fight and win World Wars I and II. It is in this tradition that we support approving the Law of the Sea Treaty.
Becoming a party to the Treaty benefits the U.S. economically by providing American companies the legal certainty and stability they need to hire and invest. Companies will be hesitant to take on the investment risk and cost to explore and develop the resources of the sea--particularly on the Extended Continental Shelf (ECS)--without the legal certainty and stability accession to LOS provides. The benefits of joining cut across many important industries including telecommunications, mining, shipping, and oil and natural gas.
LOS will continue to form the basis of maritime law with or without our accession. Our national interests are best protected by being an active participant in this process. Joining the Convention will provide the United States a critical voice on maritime issues--from mineral claims in the Arctic to how International Seabed Authority (ISA) funds are distributed.
Many opponents present a false option to LOS that does not exist: that the United States can enjoy the benefits of LOS without joining it. In reality, only by joining can the U.S. reap the full economic and national security benefits of the Convention. Like any agreement, LOS isn't perfect. But its benefits far outweigh the costs of continuing to stand on the sidelines. The Chamber and the business community do not fear adverse rulings under the Convention so much as we fear being left behind by our global competitors.
Contrary to some opponents' claims, joining the treaty promotes American sovereignty. LOS strengthens our sovereignty by codifying our property claims in the Arctic and on our ECS. Remaining outside of the Convention undercuts our sovereignty by not allowing us to advance and protect our property claims through the process utilized by every other major global power. the chamber's support for the law of the sea convention.
Players agreed that the United States should ratify UNCLOS as soon as possible. Players cited a number of reasons why UNCLOS ratification should be considered as a national imperative. First, without ratification, the United States does not have a seat at the table despite the fact that UNCLOS was originally drafted with U.S. interests in mind. Second, the United States has not yet ratified this treaty and other states that have ratified it have the ability to modify it while the United States remains dormant. If the United States ratifies UNCLOS after modification by other states, then it must be accepted as modified, with amendments that may not be favorable to the United States. Third, failure to ratify UNCLOS will mean that the United States will not be able to file for an Expanded Continental Shelf Claim in order to extract resources beyond the 200 mile Economic Exclusion Zone (EEZ). Fourth, ratification would increase the certainty or predictability of the future security and political environment that industry desires in order to invest in economic development of the Arctic region. Thus, non-ratification risks the loss of future economic interests by the United States.
Non-ratification of UNCLOS may also negatively impact other U.S. interests and other regions. Taking note of U.S. non-ratification, other states may disregard key aspects of international law, such as Freedom of Navigation (FON) or rights under the EEZ. They may feel that if the U.S. government does not recognize the rules, then why should they? The impacts of nations withdrawing from the convention or challenging it could spill over into unintended consequences elsewhere, such as conflict in the South China Sea.
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.
The case for U.S. ratification of the Law of the Sea treaty is straightforward:
The treaty protects our national security. By improving access and transit rights for our ships, aircraft and submarines, the Law of the Sea treaty facilitates timely movement of U.S. forces throughout the world. Adm. Clark and all living former chiefs of naval operations have endorsed the treaty. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, wrote last month the treaty "remains a top national security priority."
The treaty protects our commercial interests. Provisions on coastal state control of the continental shelf, for example, help provide the certainty crucial to capital-intensive deepwater projects. The American Petroleum Institute, the International Association of Drilling Contractors and the National Ocean Industries Association have all called for treaty approval.
The treaty protects the ocean environment. Provisions addressing marine pollution and fisheries help promote conservation of scarce marine resources. The World Wildlife Fund, National Environmental Trust and Oceans Conservancy, among others, support the agreement.
These factors have led the Bush administration not only to support the Law of the Sea treaty, but to identify it as one of only five treaties for which Senate approval is "urgent." Officials from the Navy, Coast Guard, Office of the Secretary of Defense, State Department and Commerce Department have all testified in support of ratification.
Let me give you five important reasons as to why joining this Convention would provide enhanced national security.
First, as the world’s pre-eminent maritime power, and the country with one of the longest coastlines and largest extended continental shelf, we have more to gain from accession to the Convention than any other country. If we are not at the table, then who will defend our interests? Who will lead the discussion to influence the further development and interpretation of the Law of the Sea? It is only by being there to protect our rights that we would ensure that our sovereignty is not whittled away by the excessive claims and erroneous interpretations of others. It would give us the power and credibility to support and promote the peaceful resolution of disputes within a rules-based order.
Second, by joining the Convention, we can secure our navigational freedoms and global access for military and commercial ships, aircraft, and undersea fiber optic cables. As it currently stands, we are forced to assert our rights to freedom of navigation through customary international law, which can change to our detriment. Treaty law remains the firmest legal foundation upon which to base our global presence, on, above, and below the seas. By joining the Convention, we would help lock in rules favorable to freedom of navigation and our global mobility.
Third, accession would bring legal certainty to a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad extended continental shelf beyond that zone.
Fourth, accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest. We already see countries testing new shipping routes and exploring for natural resources as Arctic ice cover recedes. Joining the Convention would maximize international recognition and acceptance of our substantial extended continental shelf claims in the Arctic. As we are the only Arctic nation that is not a party to the Convention, we are at a serious disadvantage in this respect. Accession would also secure our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.
Fifth, and finally, our new defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia. Becoming a party to the Convention would strengthen our position in this key area. For example, numerous countries sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea. The United States has long declared our interests and respect for international law, freedom of navigation, and peaceful resolution of disputes. We have demonstrated our commitment to those interests through our consistent presence and engagement in these critical maritime regions. By not acceding to the Convention, we give up the strongest legal footing for our actions. We undercut our credibility in a number of Asia-focused multilateral venues – just as we're pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes in the South China Sea and elsewhere. How can we argue that other nations must abide by international rules when we haven’t joined the treaty that codifies those rules?
Evaluating the pros and cons of U.S. accession to the Law of the Sea Convention is complicated, because, unlike multilateral treaties that address a single, relatively narrow topic, the Convention concerns a wide range of issues. Nevertheless, many provisions of the Convention appear to favor U.S. businesses and the U.S. military, segments of society that the Bush Administration supports. For example, the U.S. oil industry, which possesses the technology to drill at great depths under the ocean, favors U.S. accession.21 The Convention establishes a mechanism for setting the outer limits of the continental shelf beyond 200 miles from baselines, which would result in oil companies gaining the security that comes with defined limits for drilling claims.22 Most significantly, the Convention provides, in the U.S. view, minimal restrictions on the passage of military vessels through straits and other coastal zones and permits such vessels to conduct military surveys and exercises in the 200-mile exclusive economic zones (EEZs) of other states.23 In 2004, General Richard Myers, Chairman of the Joint Chiefs of Staff, labeled U.S. accession to the Convention a "top national security priority," reflecting the view that the Convention's provisions relating to navigation and military exercises are essential to U.S. security.24 In addition, the commercial shipping industry, as well as the U.S. military, benefits from the Convention's freedom of navigation provisions.
Convention proponents also maintain that "undesirable" features of the Convention can be and have been minimized. The Reagan Administration refused to sign the Convention in the early 1980s, arguing that its deep-seabed-mining regime was excessively anti-competitive and did not give the United States decision-making authority commensurate with its power.25 The changes to Part XI made by the 1994 Agreement satisfied President Reagan's objections to the Convention's original regime.26 Another U.S. concern-that U.S. military activities might be subject to review by an international tribunal under the Convention's dispute settlement procedures-could be eliminated by opting for a Convention-authorized jurisdictional exception.27 According to Convention proponents, the policy benefits of U.S. accession far outweigh any potential negative consequences.
With respect to the underlying objective of promoting stability in the law of the sea, four main advantages of widespread, including U.S., ratification have been identified:
- Treaties are perceived as binding. Legislators, administrators, and judges are more likely to feel bound to respect treaty obligations. … Even nonparties are more likely to be cautious about acting a manner contrary to a widely ratified Convention; if they do, they are more likely to be isolated when their claims are challenged.
- Treaty rules are written. Treaty rules are easier to identify and are often more determinate than customary law rules. Even if one argues that a customary law rule is identical to a treaty rule, that argument in and of itself is elusive and hard to prove. Even a nonlawyer reading the text of a binding treaty knows he or she is reading a binding legal rule, and can often form some appreciation of what the rule may require.
- Compulsory arbitration. Parties to the Law of the Sea Convention are bound to arbitrate or adjudicate most types of unresolved disputes regarding the interpretation or application of the Convention. This can help forestall questionable claims in the first place. Perhaps more importantly, it provides an option for responding to unilateral claims that may well be less costly than either acquiescence or confrontation. Because states are not bound to arbitrate or adjudicate disputes absent express agreement to do so, this benefit of the Convention … is dependent upon ratification.
- Long-term stability. Experience in [the twentieth] century has shown that the rules of the customary law of the sea are too easily undermined and changed by unilateral claims of coastal states. Treaty rules are hard to change unilaterally. At the same time, the Law of the Sea Convention establishes international mechanisms for ordered change that promote rather than threaten the long-term stability of the system as a whole.
While we have been able to gain certain benefits of the Convention from this approach, formal U.S. adherence to the Convention would have many advantages:
- The United States would be in a stronger position invoking a treaty’s provisions to which it is party, for instance in a bilateral disagreement where the other country does not understand or accept those provisions.
- While we have been able to rely on diplomatic and operational challenges to excessive maritime claims, it is desirable to establish additional methods of resolving conflict.
- The Convention is being implemented in various forums, both those established by the Convention and certain others (such as the International Maritime Organization). While the Convention’s institutions were not particularly active during the past decade since the Convention entered into force, they are now entering an operational phase and are elaborating and interpreting various provisions. The United States would be in a stronger position to defend its military interests and other interests in these forums if it were a party to the Convention.
- Becoming a party to the Convention would permit the United States to nominate members for both the Law of the Sea Tribunal and the Continental Shelf Commission. Having U.S. members on those bodies would help ensure that the Convention is being interpreted and applied in a manner consistent with U.S. interests.
- As a party, the United States could get the legal certainty with respect to its continental shelf claim beyond 200 miles that will facilitate activities in those areas by the U.S. oil and gas industry.
- Becoming a party to the Convention would strengthen our ability to deflect potential proposals that would be inconsistent with U.S. interests, including freedom of navigation. It is worth noting that the Convention will be open to amendments beginning next November. Beyond those affirmative reasons for joining the Convention, there are downside risks of not acceding to the Convention. U.S. mobility and access have been preserved and enjoyed over the past twenty years largely due to the Convention’s stable, widely accepted legal framework. It would be risky to assume that it is possible to preserve indefinitely the stable situation that the United States currently enjoys. Customary international law may be changed by the practice of States over time and therefore does not offer the future stability that comes with being a party to the Convention.
The Maritime Law Association of the United States, joined fully by the American Bar Association, emphatically urges the Biden Administration and the Senate to take immediate action to ratify both the Rotterdam Rules and UNCLOS and allow the U.S. to best address current and future global maritime issues.
The author makes a strong case for ratifying UNCLOS, arguing that by failing to do so, "the United States loses out on national security, oceanic trade, resource extraction, and its own values as defender of the rule of law."
Although the United States participated in the negotiations that culminated in the United Nations Convention on the Law of the Sea (UNCLOS), which came into force in 1994, it has not yet ratified the treaty. While it is true that the U.S. recognizes UNCLOS as a codification of customary international law, failure to become a signatory to the Treaty is increasingly harmful to American political, military, and economic interests.