Revision of U.S. ratification of UNCLOS would benefit Marine Conservation efforts from Tue, 06/17/2014 - 11:47
By most accounts, U.S. ratification of UNCLOS will have a positive effect on the environment. This is not because the U.S. will be binding itself to any new substantive norms. On the contrary, most substantive provisions of UNCLOS are already part of U.S. policy and have been for many years. Despite this, the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support
Quicktabs: Arguments
UNCLOS is now international law. As such, parties are bound by the obligations and duties imposed by the "constitution for the oceans." Arguably, even states that have not formally ratified the treaty are bound due to its status as customary international law.
UNCLOS requires states to cooperate globally to "protect and preserve the marine environment." As a compromise package, UNCLOS carefully balances the need for states to maintain sovereignty over their territorial waters and EEZs with the global need to manage effectively the ocean ecosystem. Because such careful balancing is necessary to preserve global harmony and provide effective resource management, the participants in UNCLOS agreed to rigid dispute settlement procedures that are both compulsory and binding.
UNCLOS resulted from a long, arduous negotiation, in which the parties present compromised on numerous policies to achieve a global balance. The United States played a major role in the negotiations and greatly influenced the resulting policies.
While the United States took a leading role in creating UNCLOS, it is not one of the 165 countries that have ratified the treaty. At the Economist World Oceans Summit in February, Secretary Kerry criticized the U.S. Senate for inaction—while adding that the United States is nonetheless “committed to living by the law of the sea even though it isn’t ratified.” But there is no substitute for ratification, which would benefit the United States for a host of reasons, both practical and symbolic. One of the most important is the signal it would send to the rest of the world. In his May speech at West Point, President Obama once again called for Senate action on UNCLOS. “American influence is always stronger when we lead by example,” he explained, “we can’t exempt ourselves from the rules that apply to everybody else.”
Preventing the continued destruction of three quarters of our planet will require inspired U.S. leadership of the sort that was on display last week in Washington. The health of the ocean is essential for the survival not only of sea life, but of human life. As oceanographer Jacques Cousteau warned in 1981, “[the ocean] is man’s only hope. …we are all in the same boat.”
The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles. They create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life.
Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention.
The Law of the Sea Convention provides a comprehensive framework for international cooperation to protect the marine environment. It imposes minimum requirements—all of which are already being met by the United States—to protect and preserve the marine environment. Under the Convention, states are required to take measures to address pollution from vessels and landbased sources, to prevent the introduction of alien or invasive species, and to conserve and manage coastal fisheries.
The Convention also requires states to work together to protect the oceans. States are required to cooperate in the management of high seas fish stocks, as well as stocks that migrate between the high seas and exclusive economic zones, setting the stage for regional agreements essential to managing ocean fisheries. States are also required to work together to protect marine mammals, which are given special protections under the Convention.
The standards for environmental protection set forth in the Convention work strongly to the advantage of the United States, which has already met and in most cases significantly exceeded these standards but necessarily depends on actions by other nations to protect the marine environment.
By most accounts, U.S. ratification of UNCLOS will have a positive effect on the environment. This is not because the U.S. will be binding itself to any new substantive norms. On the contrary, most substantive provisions of UNCLOS are already part of U.S. policy and have been for many years. Despite this, the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support.
A fourth reason arguing for United States accession to the convention is the building global consensus on management of the environment. Part XII of the convention deals extensively with the protection and preservation of the marine environment. Part XII covers a wide array of issues running from general principles, to global and regional cooperation, to technical assistance, to monitoring and environmental assessment, to responsibility and liability." The inclusion of strong environmental protection measures in the convention was an early and enduring goal of the United States. Given the fact that the language of Part XII creates a diffuse but effective international mechanism for control of a significant amount of marine pollution, it would seem especially advantageous for the United States to agree to the convention in order to ensure the maintenance of a stable regime for environmental protection.19
Rear Admiral William Schachte, former judge advocate general of the Navy and active participant with the U.S. delegation to the Third U.N. Conference on the Law of the Sea (UNCLOS III), has pointed out that the convention provides a unique, outstanding framework for addressing and resolving environmental concerns. He notes that the convention is far superior to any of the numerous conventions and protocols addressing marine pollution that have been attempted over the past 4 decades and that it strikes a delicate balance on environmental issues.20
Leadership in Environmental Concerns. A fourth reason for the change in the American attitude toward the Convention was a new global attitude toward management of the environment. Part XII of the Convention deals extensively with the protection and preservation of the marine environment, covering a wide array of issues, from general principles to global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liability.31 The inclusion of strong environmental protection measures in the Convention was an earlier and enduring goal of the United States. In the decade following its completion, the U.S., along with many other nations, became even more interested in preserving the environment, to the point that such concerns in many cases supplanted economic considerations.32 Given that Part XII creates an effective, if diffuse, international mechanism for controlling marine pollution and establishes a symbiotic relationship between the Convention and other issue-specific agreements, the Clinton administration decided that agreeing to the Convention would ensure a stable regime for environmental protection.33
Mr. Chairman, the Law of the Sea Convention is a powerful and successful environmental treaty precisely because it seeks to achieve a reasonable balance between environmental and other interests. For many years, in the law of the sea negotiations and in other fora, the United States has tried to make clear that environmental treaties must be carefully framed to produce a reasonable accommodation of diverse interests. Some people have characterized this as opposition to environmental protection. Some of the extreme rhetoric used abroad has been particularly damaging to our reputation in important allied countries. The Senate now has a signal opportunity to set the record straight. Its approval of the Convention and the Implementing Agreement would suggest that there is every reason to ensure that the multilateral agenda is pursued carefully and that, as long as it may take, at the end of the day relevant interests are reasonably accommodated. It would announce that when that is done, America will stand second to none in joining to strengthen multilateralism, to strengthen the rule of law in international affairs, and to strengthen international protection of the environment.
While these powers give us a great deal of control over our interests in both environmental protection and the productive use of our continental shelf, in themselves they are insufficient to protect the full range of either our environmental interests or our energy and other interests. To protect those interests, we need to influence the laws and practices of foreign countries. It is for this reason that the Convention establishes a floor of generally accepted international standards that every coastal state must apply. Among the American interests that this protects are the following:
- Our neighbors have the same exclusive rights over the continental shelf off their coasts as we have off ours. Pollution from their activities can easily affect our waters, our resources, and our shores. This became abundantly clear a number of years ago when a pollution incident on the Mexican continental shelf gave rise to extensive public concerns in Texas and other Gulf states that our waters and coastline would be polluted. As a party to the Convention, we will have increased credibility and leverage to protect ourselves from such incidents in a way that avoids any appearance that we are bullying our neighbors.
- While every coastal state has the right to impose higher standards on its continental shelf activities, and ours are among the strongest in the world, the oil and gas industry is a global enterprise that can achieve economic efficiencies from uniform global standards regarding equipment and operations. Those efficiencies can of course help to keep down the cost of energy and free up additional capital for investment. As a party to the Convention, we will have increased credibility and leverage to promote stronger and more efficient international standards and their general acceptance.
- We live in an era of instant global news. A serious pollution catastrophe on the continental shelf anywhere in the world is likely to be reported, and its consequences televised, throughout the globe. This can stimulate public demands in many countries for new restrictions on continental shelf development. To the extent that this means that we all continue to learn from each others’ mistakes, this is of course a good thing. But to the extent that public excitement can lead to hasty and ill-considered actions either in the United States or in other countries, the economic consequences can be adverse, and the result may be an unnecessary increase in the price of energy. As a party to the Convention, we will have increased credibility and leverage to ensure the emergence and enforcement of international standards that reduce the likelihood of such events.
- Our interest in the health of the oceans throughout the world is no mere abstraction. They comprise over two-thirds of our world, and are essential to our well-being and the overall ecological balance of the planet. Marine living resources from the far reaches of the globe supply us and the rest of the world with food, with sources of recreation, with valuable scientific knowledge, and with the promise of new and more effective medicines. We have neither an environmental nor an economic interest in a race to the bottom in pollution regulation in other parts of the world that destroys marine life. As a party to the Convention, we will have increased credibility and leverage to exercise the kind of balanced global leadership in protecting the oceans that is incumbent upon the leading maritime power in the world and that the American people expect.
This is but one example of the benefits of the approach taken by the Convention to environmental protection. There are many others. The provisions that successfully accommodate the interests of states with respect to freedoms and rights of navigation and their interests with respect to prevention of pollution are obviously of great importance. The maintenance over time of a reasonable balance responsive to both navigation and environmental interests would unquestionably be advanced by U.S. participation in the Convention.
The Convention is also an environmental accord that provides a comprehensive framework for the prevention, reduction, and control of maritime pollution. The Coast Guard conducts a wide-ranging port state control program to purge our waters of substandard ships and is assisting other nations in doing the same. This initiative will be enhanced through the consistent application of the Convention’s broad enforcement mechanisms. Additionally, the Convention carefully balances the rights of coastal states to adopt certain measures to protect the marine environment adjacent to their shores and the general right of a flag state to set and enforce standards and requirements concerning the operation of its vessels. Becoming a party to the Law of the Sea Convention will strengthen the international credibility of the U.S. and our efforts to guide the development of internationally accepted vessel standards, thereby improving marine safety and protection of the marine environment.
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A U.N. working group is discussing a proposed "international mechanism" for the protection of oceans. Any such treaty or convention will be a new implementing agreement under the 1994 U.N. Convention on the Law of the Sea (UNCLOS).
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