Abroad Thoughts from Home
Time for the United States
to Join the Party? Prospects for US Ratification
of the United Nations Convention on the Law of the Sea Clive Schofield and Ian Townsend-Gault The re-election of President
Obama in November 2012 once again raises the tantalising possibility that the United States (US) will finally
become a party to the United Nations Convention on the Law of the Sea
(UNCLOS).[1] The question is, following many dashed hopes in the
past, will the US finally 'join the party' and, in common with the
vast majority of the international community, subscribe to UNCLOS?
So Much to Gain, So Little to Lose
A Global Consensus Indeed, despite being a non-party itself, the US
nonetheless accepts that key aspects of UNCLOS, such as the maritime
jurisdictional and boundary delimitation provisions, are declaratory
of customary international law and conducts its policy accordingly.[4]
In terms of international law and international relations, US accession
to the Convention would therefore consolidate and reinforce the oceans
policy and practice pursued by successive administrations of both political
persuasions in the US.
Order for the Oceans
Strategic Imperatives: Preserving Freedom of Navigation The US seeks to achieve this aim through its Freedom
of Navigation (FON) program which was established in 1979.[5] Through
the FON program the US routinely protests against any practice excessive
or contrary to the provisions of UNCLOS, or, more specifically, the
United States' interpretation of those provisions. The rational for
these actions is that, as a maritime nation, the national security of
the US "depends on a stable legal regime assuring freedom of navigation
on, and overflight of, international waters", and that in view of
this, the United States will respond to what it views as excessive maritime
claims in order to preserve the "careful balance of coastal and maritime
state interests" enshrined in UNCLOS.[6] The Freedom of Navigation Program provides for three
types of responses - diplomatic representations in the form of formal
protest notes, notes verbale or aides mémoire, "operational assertions"
whereby United States air and naval forces undertake missions designed
to emphasise freedom of overflight or navigation in a "low-key and
non-threatening manner but without attempt at concealment" and through
bilateral and multilateral consultations.[7] Freedom of navigation remains a core strategic priority
for the US, a view that the US has repeatedly and clearly articulated.
For example, in January 2009 outgoing US President George W. Bush issued
a National Security Directive in which it was stated that freedom of
navigation was a "top national priority. "[8] Contrary to the
allegation that the Convention somehow undermines US military and strategic
interests, therefore, UNCLOS is actually a critical means by which the
US safeguards its security.
Leadership
A Place at the Table In This Issue
Geopolitical Tales
The kind of teaching that I do doesn't fit at Corporate U
Jurisdictional Gains An added dimension to this equation is the prospect
of the Russian Federation resubmitting to the CLCS in respect of substantial
parts of the Arctic seabed. This may well occur in 2013. This will,
in all likelihood, reignite US jurisdictional concerns over Russian
claims in the Arctic and will, moreover, be reinforced by Canada and
Denmark's (on behalf of Greenland) submissions due in 2013 and 2014
respectively. Clearly one way for the US to address these concerns
would be to become a party to the Convention and make its own submission
to secure jurisdiction its own extended continental shelf rights. Indeed,
the US is already well advanced and prepared in this respect. Alternatively,
the US could simply take the view that that outer continental shelf
limits defined on the basis of the CLCS's recommendations are not
binding upon the US and thus of little interest. The latter perspective
is, in our view, a less than sure way to address US policy imperatives.
The major expansion of US maritime jurisdiction available through the
provisions of UNCLOS also directly contradicts the oft-repeated myth
pedalled by opponents of the Convention that it somehow undermines rather
than enhances US sovereignty. A particular concern raised by opponents
of the Convention in this context relates to the UNCLOS regime on seabed
mining including the creation of the International Seabed Authority
(ISA) to regulate activity on the international seabed ("the Area")
beyond national jurisdiction and distribute the proceeds of that activity.
However, these concerns were addressed through a supplementary agreement
to the Convention negotiated in 1994. In short, the US stands to expand
its maritime jurisdiction to a significant extend through UNCLOS.
Prospects No vote on UNCLOS was taken by the Committee at that
stage. Instead it was decided to delay a vote until after the Presidential
election. It was envisaged that post-election the Senate Committee on
Foreign Relations would take a vote. It was (and is) anticipated that
the vote would be heavily in favour of US domestic ratification of the
Convention. UNCLOS could then be put to the vote in the 'lame duck'
period prior to newly elected legislators arriving in Washington at
the end of January 2013. The advantage of this timing was perceived
to be that narrow political interests such as assuaging the concerns
of powerful even if in our view deeply misguided domestic constituencies
that oppose not only the UNCLOS but anything to do with the United Nations
and even international law itself, could be side-stepped. That time
is now upon us. The critical consideration now is whether the US
President backs ratification of UNCLOS with conviction or not. This
will be critical to achieving the two-thirds majority necessary for
passage of the treaty. The fear must be that other concerns will take
priority (the so-called 'fiscal cliff' for instance) and that the
seemingly in-built, if in our view deeply misguided, opposition of conservative
Republicans to international law and treaties will prove an insurmountable
obstacle. We have been here before. There is always some other apparently
more urgent concern that distracts attention from UNCLOS. Similarly,
the instinctive scepticism of US conservatives towards anything associated
with the words "United Nations" remains as a major obstacle. The
benefits of US ratification do, however, considerably outweigh the alleged
costs so one can but hope that the present opportunity to pursue US
ratification of the Convention will not once again be lost. Most unfortunately,
at the time of writing (December 2012), the outlook for US accession
to UNCLOS appears to be bleak. Notes 1. United Nations Convention on the Law of the Sea, Dec. 10, 1982,
1833 U.N.T.S. 397 (hereinafter LOSC). The Convention goes by a number
of different acronyms, "UNCLOS" (United Nations Convention on the
Law of the Sea) is used here as it is generally the most widely used
and recognised term. "LOSC" (Law of the Sea Convention), is also
used as this distinguishes the Convention from the three UN Conferences
on the Law of the Sea (UNCLOS I, UNCLOS II and UNCLOS III) of 1958,
1960 and 1974-1982 respectively. In contrast, opponents of the treaty
in the US tend to use the term "LOST" (Law of the Sea Treaty). 2. While the US needs to ratify the Convention domestically, as UNCLOS
is in force the US would accede to it internationally. 3. Notably the Agreement relating to the Implementation of Part XI
of the convention and the UN Fish Stocks Agreement. See, Agreement relating
to the implementation of Part XI of the United Nations Convention on
the Law of the Sea of 10 December 1982, available at, <http://www.un.org/Depts/los/ 4. Roach, J.A. and Smith, R.W.,
United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff Publishers, 1996), 4-6. 5. Ibid., 3-13. 6. Ibid., 4. 7. Ibid., 6-7 and 10-11. 8. While this statement was made in the context of the Arctic, it
is nonetheless reflective of US oceans policy more generally. See, Memorandum
from The White House Office of the Press Secretary, Presidential Directive
on Arctic Region Policy, III(B)(5), 9 January 2009, on file with the
National Science Foundation, available at <http://www.nsf.gov/od/opp/ 9. Neither of the terms "outer" or "extended" continental
shelf are ideal or have gained universal acceptance. The term "outer
continental shelf" suggests that there are distinct parts of the continental
shelf when legally this is not the case. For its part the term "extended
continental shelf" gives a somewhat misleading impression that coastal
States are somehow extending or advancing claims to additional areas
of continental shelf. This is not the case as the sovereign rights enjoyed
by the coastal State over the continental shelf are inherent. See, LOSC,
Article 77(3) and the Judgment of the International Court of Justice
in the North Sea Continental Shelf Cases (ICJ Reports, 1969, 3, at para.19). 10. See, Presidential Proclamation No.2667 "Policy of the United
States With Respect to the Natural Resources of the Subsoil and Sea
Bed of the Continental Shelf", 28 September 1945, Federal Register
12303; 59 US Stat.884; ; 3 C.F.R. 1943-1948 Comp., p. 67; XIII Bulletin,
Department of State, No. 327, September 30, 1945, p. 485. Copy included
in Volume II of Brown, E.D., The International Law of the Sea, (Aldershot:
Dartmouth, 1994), at 113. |