Revision of U.S. already abides by UNCLOS as a matter of customary international law and domestic policy from Sat, 03/01/2014 - 16:26
Even though U.S. has not ratified UNCLOS, it still has committed itself to abiding by its principles in two ways: through numerous policy statements and laws drafted in accordance with UNCLOS and committing the U.S. to abiding by it; and due to the fact that the Law of the Sea has become customary international law.
Quicktabs: Arguments
Joining is a win/win proposition. We will not have to change U.S. laws or practices, or give up rights, and we will benefit in a variety of ways. The United States already acts in accordance with the Convention for a number of reasons:
- First, as noted, we are party to a group of 1958 treaties that contain many of the same provisions as the Convention.
- Second, the United States heavily influenced the content of the 1982 Convention, based on U.S. law, policy, and practice.
- Finally, the treaty has been the cornerstone of U.S. oceans policy since 1983, when President Reagan instructed the Executive Branch to act in accordance with the Convention’s provisions with the exception of deep seabed mining.
Thus, we are in the advantageous position in the case of this treaty that U.S. adherence to its terms is already time-tested and works well.
The legal regime applicable in the Arctic is the customary international law as reflected in the United Nations Convention on the Law of the Sea (UNCLOS). While the United States has not ratified UNCLOS, it considers the convention’s navigation and jurisdiction provisions to be binding international law. The convention advances and protects the national security, environmental, and economic interests of all nations, including the United States, codifying the navigational rights and freedoms that are critical to American military and commercial vessels. It also secures economic rights to offshore natural resources.26 Article 76 of the convention allows nations to claim jurisdiction past their exclusive economic zones on the basis of undersea features that are considered extensions of the continental shelf, if a structure is geologically similar to a nation’s continental landmass.27 In May 2008 five of the Arctic nations adopted the Illulissat Declaration, which acknowledges that “the Law of the Sea is the relevant legal framework in the Arctic” and that there is “no need to develop a new comprehensive international legal regime to govern the Arctic,” committing the signatories to an “orderly settlement of any possible overlapping claims.”28
Currently there are overlapping, unresolved maritime boundary claims between the United States and Canada, Canada and Denmark, Denmark and Norway, and Norway and Russia. At this time, none of these disputed boundary claims pose a threat to global stability. While the United States and Canada disagree on the location of the maritime boundary in and northward of the Beaufort Sea, the United States considers Canada a close ally, and the dispute does not jeopardize this relationship.29 Unfortunately, the United States is the only Arctic nation that has not joined UNCLOS, despite support from President Barack Obama and the Bush and Clinton administrations. Because the Illulissat Declaration recognizes the law of the sea as the framework for deciding issues of Arctic territoriality, the United States will likely find itself at a disadvantage when critical Arctic conversations occur.30
We also should remember that the United States already has been abiding by the Law of the Sea Convention since President Reagan's 1983 Statement of Oceans Policy. In addition, the United States is a party to the 1958 Convention on the Territorial Sea and Contiguous Zone, a predecessor to the Law of the Sea Convention. Many of the provisions of the 1958 Convention are less advantageous to the United States than comparable provisions in the Law of the Sea Convention.
Given that the United States has been abiding by all but one provision of the Treaty for the last 21 years and that we are already a party to a less advantageous international agreement on ocean law, dire predictions about the hazards to our sovereignty of joining the Law of the Sea Convention ring particularly hollow.
Ultimately, the Convention settled on an outer limit for the continental shelf of 200 miles,38 which satisfied many geographically disadvantaged states (those that do have a naturally wide shelf), but also allowed special considerations for states with naturally broad shelves by granting them a potentially deeper shelf of up to 350 miles instead of the standard 200.39 With the exception of the special considerations, Convention provisions limiting the continental shelf echoed those in the 1964 Convention on the Continental Shelf which set the limit as 200 miles and gave coastal states exclusive rights over its continental shelf.40 The United States is a party to the 1964 Convention on the Continental Shelf and thus bound by these limits.41 However, if the United States qualifies for the special considerations provided for in the Convention for states with naturally broader shelves, it has the potential to increase its continental shelf.42
U.S. law and practice are already generally compatible with the Convention. Except [with respect to the enforcement of certain deep seabed mining decisions, which would be necessary at some point after U.S. accession], the United States does not need to enact new legislation to supplement or modify existing U.S. law, whether related to protection of the marine environment, human health, safety, maritime security, the conservation of natural resources, or other topics within the scope of the Convention. The United States, as a party, would be able to implement the Convention through existing laws, regulations, and practices (including enforcement practices), which are consistent with the Convention and which would not need to change in order for the United States to meet its Convention obligations….[t]he Convention would not create private rights of action or other enforceable rights in U.S. courts, apart from its provisions regarding privileges and immunities to be accorded to the Convention’s institutions.
The United States did not sign UNCLOS,76 but remains a party to Geneva LOS.77 UNCLOS superseded the Geneva LOS conventions as to parties of both treaties.78 Those parties include the major players in the fight against maritime piracy. Somalia, Kenya, Seychelles, Yemen, Denmark, France, Germany, the United Kingdom, China, India, and Japan are all parties to UNCLOS.79 Indeed, UNCLOS currently has 160 state parties,80 a sufficiently large proportion of all states for it to constitute a codification of customary international law.81 Additionally, submission for ratification gives UNCLOS force as between the United States and other state parties, and the United States has stated its intention to respect the rules of UNCLOS on “navigation and other matters.”82
Paradoxically, the critics seem not to have noticed that the less protective 1958 Conventions already binding on the United States, unlike the 1982 Convention, contain no denunciation clause. Unless the United States adheres to the 1982 Convention, which would automatically supercede our obligations under the 1958 Conventions, we would be faced with substantial uncertainty about revision or withdrawal from the 1958 Conventions. Under the 1958 Conventions, a request for revision of the Conventions would simply be referred to the United Nations General Assembly, which would then “decide upon the steps, if any, to be taken in respect of such requests.” And, in the absence of a denunciation clause in the 1958 Conventions, it would be unclear under international law whether the United States would be able to lawfully withdraw at all from these Conventions. In sharp contrast, not only will adherence to the 1982 Convention automatically supercede outmoded United States obligations under the 1958 Conventions, but the 1982 Convention does contain a denunciation clause. Under Article 317 of the Convention the United States may leave the Convention after one year following a simple denunciation. Thus, if the horribles espoused by the critics were to occur, the United States could simply denounce the Convention and withdraw;