By: Ben Haight
“As the broader U.S. domestic debate over UNCLOS’ many provisions continues, let there be no misunderstanding: from a national security perspective, UNCLOS is overwhelmingly in the United States’ best interest.”
-Vice Admiral James W. Houck[i]
The third United Nations Conference on the Law of the Sea took place from 1973 until 1982 and resulted in the international agreement called the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS came into force in 1994. While the United States took the lead in drafting the original 1982 instrument, as well as a later 1994 agreement, the U.S. has not ratified UNCLOS. Today, UNCLOS has 157 signatories and 166 parties.[ii] The United States remains on the sideline.
American presidents, both Democrat and Republican, have supported U.S. accession to UNCLOS. President Ronald Reagan, an early skeptic of UNCLOS, later in his administration ordered that we follow UNCLOS’ terms.[iii] Department of Defense was very active in drafting UNCLOS and has consistently supported accession.[iv] Despite the fact that the Senate Foreign Relations Committee has voted and supported UNCLOS during the committee stage, the treaty has not been fully voted on by the Senate.[v] This failure to act has left the United States without a strong voice and without legal backing during international ocean and sea negotiations.
Opponents to UNCLOS consistently argue that the convention is not necessary and requires the United States to forfeit substantial amounts of sovereignty. Additionally, they point out that UNCLOS does not allow reservations and subjects the U.S. to every provision.[vi] Opponents argue that America’s navigational interests are protected by customary international law and, therefore, convention ratification is worthless.[vii] This argument makes a big assumption, however, that customary international law will not change. Just in recent years, there seems to be shifting trends in foreign states’ ocean policies that may modify what is now considered customary.[viii]
Furthermore, ratification does not seem unnecessary because UNCLOS ensures the availability of legal certainty for U.S. corporations seeking offshore developments and a navigational structure for America’s Navy. Part XI of UNCLOS regulates “The Area.”[ix] The Area is the deep ocean and is referred to as “the common heritage of mankind.”[x] It contains a great amount of minerals and hydrocarbon resources, which are used in many products today and highly sought after by major companies. UNCLOS opponents argue that there are no legal barriers to developing the Area. Deep-sea development would be a major investment and, without the legal certainty guaranteed by UNCLOS, business executives refuse to invest in the Area absent UNCLOS accession. During a time of drastic Arctic ice melting, which has exposed lots of untapped hydrocarbon resources, the time to accede to UNCLOS and invest in the Area is now. America cannot afford to stand by and watch Russia take the lead in the Area.[xi]
United States accession to UNCLOS is critical to maintaining national security and navigational freedom. Furthermore, the need for legal certainty is extremely critical to both American businesses interested in developing the Area as well as the United States Navy. Customary international law is not static and should not be considered as a realistic barrier to UNCLOS accession. As drafted by many American representatives, UNCLOS is overwhelmingly in America’s best interests. It would be wise and timely for the next American President to make UNCLOS accession a priority in the first 100 days in office and put pressure on the Senate to vote in favor of UNCLOS.
Ben Haight is third-year law student at The Pennsylvania State University. Ben is a Senior Editor on the Penn State Journal of Law and International Affairs and is an Ensign in the Judge Advocate General’s Corps, U.S. Navy.
[viii] See Wendell Minnick, Experts Wary Over News of China’s 2nd Carrier, Military Times (Jan. 27, 2014), available at http://www.militarytimes.com/article/20140127/NEWS04/301270018/Experts-wary-over-news-China-s-2nd-carrier ; see also Eduardo Zachery Albrecht & Betty Chemier, Diplomatic Dance Intensifies Over South China Sea’s Spratly Islands, THE GLOBAL OBSERVATORY (Oct. 25, 2013), available at http://www.theglobalobservatory.org/analysis/608-diplomatic-dance-intensifies-over-south-china-seas-spratly-islands.html.
[xi] See C.J. Chivers, Russians Plant Flag on the Arctic Seabed, THE NEW YORK TIMES (Aug. 3, 2007), available at http://www.nytimes.com/2007/08/03/world/europe/03arctic.html?_r=0.