US not losing opportunity to guide development of UNCLOS, it can always make accession dependent on amendment

UNCLOS proponents have also recently argued that it is imperative that the United States join the Convention before it is amended by the states parties. Failure to do so, they argue, may later force the United States to accept a modified Convention “as is” with amendments that are contrary to U.S. interests.¹⁷ Such an argument is untenable at best and ignores a plain reading of Article 316 of the Convention, which provides in part:

4. A State which becomes a Party to this Convention after the entry into force of an amendment . . . shall, failing an expression of a different intention by that State: (a) be considered as a Party to this Convention as so amended; and (b) be considered as a Party to the unamended Convention in relation to any State Party not bound by the amendment (emphasis added).

In other words, if the United State were to accede to UNCLOS after an unfavorable amendment had entered into force, Washington could simply indicate that the United States would not be bound by that amendment. Such efforts to sensationalize the importance of joining UNCLOS by making incorrect statements of the law not only detract from the debate but also significantly undercut the legitimacy of the need to accede to the Convention.