Revision of U.S. failure to ratify UNCLOS has been detrimental from Sat, 06/28/2014 - 15:38
Quicktabs: Arguments
The debate on the Convention would be just an interesting political science case study if it were not for the fact that there are serious consequences to not ratifying it. The Convention comes open for amendment for the first time in November of this year. If the United States is not party to the Convention at that time, we will not have a seat at the table to protect against proposed amendments that would roll back Convention rights we fought hard to achieve.
Some nations may press for restrictions on the movement of naval or commercial vessels near their coastline. Others may pursue the right to exclude nuclear-powered vessels from their territorial waters. (Under the Convention, a ship's propulsion system cannot be used as an argument to restrict its movements.) As a party, we will be in a very strong position to prevent harmful amendments.
In addition, the Convention's Commission on the Limits of the Continental Shelf will soon begin making decisions on claims to continental shelf areas that could impact the United States' own claims to the area and resources of our broad continental margin. Russia is already making excessive claims in the Arctic. Unless we are party to the Convention, we will not be able to protect our national interest in these discussions.
If one were to travel back in time and inform the high-level members of the eighteen agency National Security Council Interagency Task Force which formulated United States oceans policy under Presidents Nixon and Ford during the principal formative Convention process – an effort never matched before or since in the care with which it reviewed United States international oceans interests – that the Convention today in force, powerfully meeting all United States oceans interests, would not yet be in force for the United States nine years after being submitted to the Senate, the news would have been received with incredulity. As this suggests, the Congress should understand that United States oceans interests, including our critical security interests, are being injured – and will continue to be injured – until the United States ratifies the Convention. Among other costs of non-adherence we have missed out in the development of rules for the International Law of the Sea Tribunal and the Commission on the Limits of the Continental Shelf, and in ongoing consideration of cases before the Tribunal as well as ongoing consideration of the Russian continental shelf claim now before the Continental Shelf Commission; we have had reduced effect in the ongoing struggle to protect navigational freedom and our security interests against unilateral illegal claims; and we have been unable to participate in the decisions of the meetings of States Parties. These are not just my conclusions. They are the conclusions of every Chief of Naval Operations and every Secretary of State who has considered these issues and of all the law of the sea experts I work with on a continuing basis.
On balance, the arguments in favor of the convention far outweigh those opposed, which is the reason the convention has attracted such a diverse and bipartisan constituency. As presidents Clinton and George W. Bush forcefully argued in their written communications with the Senate (Appendix II), objections to the 1982 convention were substantively addressed in the 1994 agreement on implementation. Continuing to treat most parts of the convention as customary international law, as the United States does now, literally leaves it without a seat at the table in important decision-making bodies established by the convention, such as the Commission on the Limits of the Continental Shelf (CLCS); weakens the hand the United States can play in negotiations over critical maritime issues, such as rights in the opening of the Arctic Ocean; and directly undercuts U.S. ability to respond to emerging challenges, such as increasing piracy in the Indian Ocean. Joining or not joining the convention is more than an academic debate. There are tangible costs that grow by the day if the United States remains outside the convention.
Without becoming party to the Convention, the United States cannot benefit from all the Convention offers, while the rest of the world also loses from our non-participation in the continued progressive development ofthe Law of the Sea. The United States cannot turn to the binding dispute settlement regime of Part XV should it wish to contest overly assertive straight baseline claims or arbitrary restrictions on innocent passage or marine scientific research.16 The United States cannot make a claim for an extended continental shelf beyond 200 nautical miles under Article 76. The United States has also been without representation on the Commission on the Limits ofthe Continental Shelf. The Commission has been quietly developing international law on the continental shelf by formulating its Scientific and Technical Guidelines and by reviewing the dozen or so claims that have so far been made. If and when the United States ever does become a party, its extended continental shelf claim will be assessed, perhaps decades after the Commission began its work, on the basis of standards now being worked out without its participation.
MOORE: The third question is, well, why do we really need to have adhered to the convention? I hope I have answered that in giving you some of the issues already. Let me just say, if you really believe that you prefer the United States not to be THE oceans leader in the world but simply to be an observer while the rest of the world changes the law and things, then you should be for this opposition. Because that's exactly what is happening.
We are being harmed and being harmed in very serious ways. And one of those that I've been particularly paying attention to economically that has not gotten much attention is literally we have remaining three huge mine sites in the deep ocean floor. A mine site is approximately the size of the state of Rhode Island, each one somewhere around $1 trillion in aggregate value of hard minerals for the United States. We've lost one out of the four of those already because of the delay. The companies just got tired of this and basically sold it for nothing. And if the United States doesn't adhere in a reasonable period of time, what's going to happen is those sites will be turned over to the Chinese and the Russians and the others. And this will be one of the greatest travesties, I think, in the history of U.S. foreign policy.
The immediate effect of our failure to sign the Convention was a loss of political capital. Had we been only a peripheral player in the UNCLOS process, or had we objected earlier and more vigorously to certain proposals, our refusal to sign would not have been so conspicuous. Unfortunately, our 25 years of active participation in the process, and our mild objections to the initial deep seabed mining provisions, gave the community of nations every reason to believe we were going to sign and support the Treaty. Our refusal to sign at the end of the process was viewed as a capricious policy reversal, resulting in significant political cost.
This situation was exacerbated by the 1983 Reagan Proclamation, which appeared to the international community as an attempt to mold the Treaty for our own use. We lost significant political credibility with our decision not to sign the Treaty and touched off a further torrent of criticism in the wake of the Presidential statement. Some of the international community refused to accept the U.S. contention that the non-seabed provisions of the Treaty reflected customary law and therefore were applicable to all states, whether or not they were parties to it. As one of the most influential UNCLOS negotiators expressed it: “The provisions of the Convention are closely interrelated and form an integral package. Thus, it is not possible for a state to pick what it likesand disregard what it does not like.”10 
[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.