The Case for America joining the United Nations Convention on the Law of the Sea

By Leslie-Anne Duvic Paoli for RUSI.org

The United States is undeniably the world's leading maritime power, enjoying the largest Exclusive Economic Zone (EEZ) and possessing the world's largest and most powerful navy. Yet despite relying heavily on the use of the seas for its economy as well as its national security, the US is surprisingly not party to the United Nations Convention on the Law of the Sea (UNCLOS), the one treaty that governs the use of the oceans. This universal legal framework for the maritime domain is endorsed by 162 countries.

Ironically, the US is often described by experts as 'the Convention's best supporter', having formidable influence during the drafting of UNCLOS. Today it follows the rules set out by the treaty and even takes part in UNCLOS meetings as an observer. Endorsed by Presidents Clinton, Bush and Obama, always supported by the military chiefs, and recognised as fundamental by all key maritime stakeholders in the US, UNCLOS paradoxically still has not made its way to the Senate. Submitted to the Senate by President Clinton in 1994, the Senate Foreign Relations Committee overwhelmingly approved it twice in 2003 and 2007, sending it to the full Senate for ratification. However, some Senate Republicans have blocked a vote on the treaty on the grounds that membership of UNCLOS would compromise national security and sovereignty.

There is a small chance that this could now change as Senate Foreign Relations Committee Chairman John Kerry presses once more for Senate approval. He is supported by the Committee's ranking Republican, Senator Richard Lugar, and by the Chairman of the Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard, Senator Mark Begich. However, opposition remains strong, in particular with Senate Minority Leader Mitch McConnell opposing the ratification.

The main US arguments against UNCLOS can be summarised as follows:

1. UNCLOS offers nothing new, as its main dispositions are already integrated in international customary law;

2. The US would have to share the revenue generated from the exploitation of the deep seabed with developing nations without having any control over who the revenue would go to;

3. The dispute resolution system would leave the US open to criticism by opportunistic nations who could lodge fallacious allegations against the US;

4. The US should not subjugate itself to the UN, a 'corrupt body' whose activities are mainly hostile to American interests.[1]

However, the relatively limited opposition to UNCLOS should not be allowed to prevent  the Senate from taking a vote on ratification. It will cost the US more to be excluded from the UNCLOS system than the limited amount of sovereignty it will give up by binding itself to this international treaty. The US will deeply hurt its own economic, diplomatic and military interests, while other countries will strengthen their maritime power.

Clear strategic and economic gains

UNCLOS has contributed to the successful building  of a stable international order at sea, accommodating the desire of states to exploit their marine resources whilst preserving the right to free navigation on the high seas. The Convention's major provisions are widely recognised as being integrated into international customary law. Yet, international customary law leaves sufficient space for numerous uncertainties to be addressed as experts disagree about which precise rules are actually part of customary law.

Without a written text to refer to, misunderstandings over US rights and duties at sea is bound to generate disputes with other nations. The predictability of international law is key in maintaining international peace and security. For instance, although the United States Navy considers it has the right to navigate freely on the high seas and on foreign EEZs, some states, including China, have divergent interpretations of UNCLOS and strictly control the activities of other states in their EEZ. This leads to frequent tensions. The fact that the US is not part of UNCLOS makes its position weaker whenever it tries to defend its interpretation of the rules.[2] Simply following international customary law does not allow the US to fully defend its interests and assert its claims.

Apart from clarifying existing rights that the US can already enjoy, UNCLOS also provides the US with additional rights. Only a country party to UNCLOS is allowed to seek UN permission to extend its continental shelf beyond the usual 200 nautical miles. The continental shelf is home to many resources such as natural gas and oil and an extension of the continental shelf can prove very profitable. It is no surprise therefore that, since 2001, fifty-six submissions have already been made to the relevant UN body, and many more are still to come. Australia, for instance, has managed to extend its continental shelf by an extra 2.5 million square kilometres of continental shelf (five times the size of France) thanks to this procedure.  However, because the US is not party to UNCLOS, it cannot do the same. Needless to say, this deeply hurts its economic interests.

The failure to ratify UNCLOS also undermines the strategic importance of the US role in the Arctic region. Russia, Norway and Denmark have already made their submissions for an extension of their continental shelf into the Arctic. Without membership of UNCLOS, the US cannot do the same, thereby preventing itself from playing a key role in one of the highly sensitive strategic questions of the Twenty-first century. Important economic gains are also at stake. It is estimated that Alaska's offshore natural assets holds 27 billion barrels of oil and 132 trillion cubic feet of natural gas. Those resources could generate hundreds of billions of dollars and contribute to the country's goal of achieving energy independence.[3]

On-going scepticism towards the deep-sea mining system

Although ratifying the Convention would clearly enhance US interests, President Ronald Reagan did not sign it in 1982 because of his opposition to Part XI, which addresses the issue of deep-sea mining regime.[4] When UNCLOS was first opened for signature, most major Western powers - the US included - refused to sign it because of these specific provisions. An amendment to the Convention was eventually concluded in 1994, this additional agreement being more favourable to the national interests of developed countries. This modification was necessary to secure ratifications from more countries, and was welcomed by the US.

However, US opponents to UNCLOS continue to strongly criticise the role of the the International Seabed Authority (ISBA), a newly-created institution within Part XI of the Convention,. The Authority organises and controls the activities in the seabed and ocean floor beyond national jurisdictions (known as the 'Area'), granting authorisation for deep seabed exploration and exploitation. It is also responsible for redistributing some of the revenue generated from the exploitation of extended continental shelves and of the 'Area' to least developed countries and landlocked countries (up to 7 per cent of the value of the production). This appears to be a fair system, based on the idea that beyond national jurisdictions the sea is something to be used for the 'common good'. In other words, countries that do not have the expertise or the financial means to exploit the sea can still get some benefit out of it. Those modest revenue sharing provisions are however what make most opponents hesitant to ratify UNCLOS.

Yet without being party to UNCLOS, the US will not be able to exploit the resources without infringing international law. It is highly likely that US companies will seek legal certainty afforded only to UNCLOS members before investing in any exploitation opportunities which emerge. If it was a signatory to UNCLOS, with some of the most advanced equipment and expertise to explore the deep seabed the US could already be carrying out research in the 'Area', just as other countries - such as China, Russia but also Nauru and Tonga - are starting to do.[5] Research and exploitation of what could become very lucrative opportunities - in terms of profit and job creation - has started without the US.

The US is generally reluctant to defer to multilateral processes, especially to the UN, which sometimes is seen as a risky forum for promoting US interests. Therefore, the role of the ISBA has raised concerns over the extent to which it would impede US sovereignty. However the US, if it joins the ISBA, will have a strong leverage on the decision-making process thanks to the 1994 amendment which also modified the decision-making system within the institution. The argument that the ISBA will have the opportunity to distribute to any country the revenue generated by seabed exploitation without the US having a say is flawed. The Agreement clearly states that if the US were to become a party, it would be granted a seat in the Council of the Authority, the main decision-making body: as a maritime leader, the US can be sure that its voice will be heard. It should also be appreciated that decisions are made based on consensus, thereby preventing the tyranny of a majority that could go counter to the US interests.

An innovative system of disputes settlement

There is little ground for arguing that the compulsory system of disputes settlement created by UNCLOS - obliging participant countries to resolve a dispute through judicial means - will strongly impede US sovereignty. Indeed, the idea that ill-meaning countries could lodge specious allegations against the US is unconvincing. Bringing a country to court or arbitration is often prohibitively expensive and time-consuming - even for a state which may wish to undermine US power.

Although the provision on compulsory settlement of disputes is innovative, the system is not as restrictive as it might appear. The US cannot be subjected to any dispute resolution procedures without its consent. The Convention gives a varied choice of courts and tribunals to solve a dispute. The US is likely to choose the less constraining one - arbitration - as the method applicable for most categories of disputes.[6]

Moreover, the system of compulsory settlement of disputes has many exceptions, notably on most issues closely related to the sovereignty of the state, such as the delimitation of maritime boundaries or the military use of the seas, thus leaving the most sensitive issues out of the system.

An international treaty safeguarding national interests

US opponents of UNCLOS generally have been sceptical of the US need to join any multilateral treaty. But the maritime domain is unique: recognised as the 'common heritage of mankind', shared and used by everyone, the oceans can only be governed through multilateral institutions. UNCLOS has managed to accommodate various interests in a domain where sovereignty issues often are particularly exacerbated: stakes are high in terms of economic, diplomatic and military power.

It is time to admit that UNCLOS enhances the US sovereignty more than it constrains it, for it gives the US the ability to play in the maritime domain on an equal footing with other maritime powers and to assert its rights and interests strongly. By staying outside of the system the US opens itself to criticism from other countries and loses some control over global maritime affairs. This is worrying as the peaceful use of the seas is fundamental to the maintenance of wider international security. The sea is becoming a ground for competition over resources and a means to display military power.[7] The US is now faced with new maritime challenges - such as China's growing assertiveness in the South China Sea, the melting of the ice in the Arctic region, and an increase in piracy attacks in various regions of the globe. Ratifying UNCLOS is a first necessary step to successfully address these issues.

Notes

---

 

[1] Kim Holmes, 'UN Sea Treaty Still a Bad Deal for US', The Heritage Foundation, 14 July 2011. For a full overview of arguments in opposition of UNCLOS, see Scott Borgerson, The National Interest and the Law of the Sea, Council on Foreign Relations Press, May 2009, Appendix I, pp.41-47

[2] The 2009 incident between the Impeccable and Chinese vessels illustrates such divergences in the interpretation of UNCLOS. For a full analysis of the legal implications of the incident, see Mark Valencia, 'The Impeccable Incident: Truth and Consequences', China Security, vol.5-2, spring 2009.

[3] Testimony of Peter Slaiby, Vice President of Shell Alaska, before the US Senate Commerce Committee, Subcommittee on Oceans, Atmosphere, Fisheries and Coastguards, 27 July 2011, p. 3.

[4] President Ronald Reagan had declared that the US would abide by all non seabed parts of the Convention. See President Reagan, 'Statement on U.S. Oceans Policy', March 10, 1983.

[5]  International Seabed Authority, "Seabed Council Approves Four Applications for Exploratory Contracts with Authority in Deep Seabed Area", Press Release SB/17/11, 19 July 2011.

[6] According to the draft Senate Resolution of Advice and Consent, Senate Committee on Foreign Relations, December 2007.

[7] Robert Kaplan, 'The South China Sea is the Future of Conflict', Foreign Policy, Sept/Oct 2011.