Revision of The U.S. would Benefit from Ratification of UNCLOS from Tue, 02/18/2014 - 06:40
Yet refusing to allow direct application of the Convention in U.S. courts would also carry costs. It is consistent with some U.S. traditions to regard international law, even as it applies to individuals, as fully justiciable law, like domestic statutory and case law. In this view, applying the Convention in U.S. cases concerning individuals would be an ordinary exercise ofjudicial authority. In general, direct application of the Convention in cases involving individuals could have the salutary effect of promoting respect for basic human rights in other countries. There may be other benefits of such application as well. Recognizing the direct applicability of the Convention's prompt release articles in U.S. court, for example, could defuse conflicts with other states. In addition, the U.S. tradition of promoting international trade and commerce - reflected in the Medellin dissent's concern that the majority's decision "threatens to deprive ...businesses [and] property owners ....of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide"'103 - suggests an historically strong reason not to read the Medellin Court's non-self-execution holding too broadly. The concern with safeguarding commercial relationships also counsels against writing the non-self-executing provisions of the Advice and Consent Resolution too broadly, or at least counsels in favor of insuring that U.S. legislation fully implements Convention provisions.
Of course, many nations have a vigorous interest on both sides of this dichotomy, but none more so than the United States. With the largest claimed EEZ of any nation (due in part to the long coast of Alaska, the Aleutian islands and Pacific territories) the U.S. is a coastal nation and as such demands protection for its coastal natural resources. From this perspective, the United States may wish to limit transport by other nations in its EEZ to protect habitats or to ensure that illegal fishing is not occurring. Indeed, the United States has imposed mandatory ship reporting requirements to protect right whales12, and is seeking approval of the International Maritime Organization for limitations on transit in the northwest Hawaiian islands, which has recently been designated a National Monument. But with the largest and most wide ranging blue water Navy, the U.S. is a maritime nation that must maintain its existing rights to passage throughout the world’s oceans and seas. Moreover, the U.S. is reliant on international shipping imports and restrictions on navigation will raise costs to U.S. consumers. These conflicts are concentrated in nations’ territorial seas and straits, although conflicts in the wider boundaries of the EEZ are emerging.
A natural effect of this split interest is that any one sided argument about the perils of the U.S. joining the Convention is immediately contradicted. For example, alarmist arguments that Convention nations have or will impose limitations on transit are contradicted by the fact that the U.S. does impose some limits to transit in our own EEZ and has plans to continue to do so. Indeed, the very fact that the U.S. has perhaps the world’s strongest interest in both protection of coastal resources and right of free transit on, under and above the ocean, is the most compelling reason to join the Convention. As four former U.S. Coast Guard Commandants stated in a letter urging the Chairman of the U.S. Senate Foreign Relations Committee to support accession to the treaty:
As a global maritime power and a nation with one of the longest coastlines, the United States has strong interests both in preserving freedom of the seas and in protecting our own coastal areas, including offshore marine resources. The Convention strikes the right balance between these sets of interests13.
UNCLOS is, in many respects, an amazing treaty. Hailed as "possibly the most significant legal instrument of [the twentieth] century,"UNCLOS strikes a delicate balance between freedom of navigation and utilization of the oceans on the one hand, and on the other, sovereign rights and control over the ocean and its resources.1 It solves long-standing issues that had proved to be intractable (e.g., the allowable breadth of the territorial sea) and creates new legal regimes to reflect evolving state practice (such as the exclusive economic zone). Against a backdrop of overweening national self-interest, it achieves a remarkable degree of consensus and compromise in areas that significantly impact national sovereignty and sovereign rights, particularly over resources-matters that have historically caused nations to go to, or threaten, war.2
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.
The advantages of U.S. ratification are clear. The United States would be able to invoke clear rules to support its claims to navigational freedoms.6 It would be able to rely on the text of the Convention to support its claims to an extended continental shelf in the Western Gap area of the Gulf of Mexico7 and in the Arctic.8 It would be able to utilize the principles and institutions of the Convention to work with other nations to protect the marine environment.9 It would be able to utilize the sophisticated and flexible dispute-resolution procedures established by the Convention. It would be able to put a U.S. ocean law expert on the International Tribunal for the Law of the Sea and a U.S. scientist on the Commission on the Limits of the Continental Shelf. It would be able to participate actively in the interpretation and implementation of all aspects of this comprehensive treaty, and thus could better protect all of its ocean interests.10