Flag officers testify on the Law of the Sea before the Senate Foreign Relations Committee in Washington, D.C., June 14, 2012. DOD photo by U.S. Air Force Sgt. Chuck Marsh
By Elisabeth Ferland
The military, business leaders, environmentalists, and labor groups all support the ratification of the U.N. Convention on the Law of the Sea (UNCLOS). In testimony to the Senate Foreign Relations Committee, Navy Adm. James Winnefeld Jr. spoke in favor of accession to UNCLOS, saying that the Treaty will protect U.S. access to the maritime domain, fortify U.S. credibility as the world’s leading naval power, and will allow the United States to bring to bear the full force of its influence on maritime disputes. Despite widespread support for accession to UNCLOS there remain opposition from a vocal conservative minority of purported defenders of U.S. sovereignty.
Three of the arguments commonly cited by opponents of U.S. accession to UNCLOS are an erosion of U.S. sovereignty, U.S. vulnerability to lawsuits and loss of economic revenue, and a redundancy in accession. The Treaty has created the International Seabed Authority (ISA) with its own dispute resolution tribunal. Despite the presence of the ISA, retired Admiral James Lyons highlighted that accession to the Treaty has not prevented China from undertaking illegal maritime claims in the South China Sea. Because China illegally lays claim to the entire South China Sea, UNCLOS is not applicable in this case in their opinion, rendering ISA incapable of action.
Admiral Lyons also said that U.S. accession to UNCLOS would have a negative effect on legitimate U.S. naval operations because the Treaty gives other nations access to its mandatory dispute-resolution mechanisms. Because submersible vehicles need to navigate on the surface in territorial waters, anti-submarine warfare operations could have serious negative impacts. Opponents believe that accession to the Treaty would have a negative impact on the United States’ ability to carry out legitimate naval operations, undermining U.S. maritime supremacy.
Second, accession to UNCLOS could open the U.S. to lawsuits over virtually any maritime activity, including alleged pollution of the maritime environment either through land-based activities or through the environment. Despite lack of merit, the U.S. would have to defend itself against any of the lawsuits, at the expense of the taxpayer. Finally, any decision by the UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
Alongside the possibility of lawsuits, U.S. accession to UNCLOS would bind the U.S. to transfer royalties from hydrocarbon production to the ISA for redistribution to developing and landlocked countries. As the amount of hydrocarbon royalties could be in the trillions of dollars, the amount that the Treasury would have to give the ISA would not be inconsequential. However, the U.S. does not need to accede to UNCLOS to gain the rights to the hydrocarbon resources, because international law and U.S. policy and practice have already given U.S. jurisdiction and control over its extended continental shelf (ECS). Therefore accession would deprive the U.S. of revenue it already has the right to.
Last, the U.S. already honors most of the provisions contained in UNCLOS and it is therefore simply not necessary for the U.S. to ratify the Treaty. Practically, there is no pressing issue requiring ratification that outweighs the binding negative impacts of the Treaty. As the preeminent naval power, the U.S. does not need to be bound by the articles of the Treaty for fear of a rising challenger, and as it already honors most of the provisions, the need is just not there.
Despite strong support for accession to UNCLOS the potential negative impacts of the Treaty for the U.S. are not insignificant and have succeeded thus far in the Senate failing to gain the two-thirds majority needed for its ratification.
Elisabeth Ferland is a recent graduate of the accelerated bachelor and master program in Georgetown University’s School of Foreign Service. Her bachelor’s degree is in Science, Technology, and International Affairs and her master’s is in Security Studies. She is currently looking to begin a career on Capitol Hill. Having grown up in Europe she loves to travel, have adventures, and try new things. She can be reached at izzzyf@gmail.com
Ms. Ferland should note that the International Seabed Authority only has a role with regard to mineral resources of the deep seabed beyond national jurisdiction. There is no part of the South China Sea in which the ISA would have jurisdiction, nor would it have jurisdiction over navigation (beyond a narrow safety zone around mining operations) or continental shelf energy development.
Unmentioned in the article is that the ISA has been in operation for 18 years, working within its limited role. The only threat from the ISA is its success in providing a regime for ocean mineral exploration that now has 12 commercial exploration operations underway and 5 more queued for review this summer. Meanwhile, the US is down to only one of the original four domestic ocean mining licensees and that one, Lockheed Martin, has said that it can only undertake at-sea operations under the framework of the LOS Convention – because that is the only way to get international recognition of exclusive access to a mine site and, most important, recognition of title to the recovered minerals. I'll point out that deep seabed mining as a potential source of strategic minerals was the only part of the convention that Ronald Reagan addressed before he became president, and staying outside the convention is putting his vision to an end while parties to the Convention reap the benefits.
Whether it is on the high seas or on the extended shelf, a unilateral claim of authority cannot compel foreign recognition. In fact, it was the threat of continued expansion of coastal state jurisdiction over the seas and the failure of the 1958 and 1960 conferences to define limits tot he territorial sea and continental shelf that led to the negotiation of a comprehensive agreement in the third Conference on the Law of the Sea. Business with international markets or subsidiaries are particularly unimpressed by claims that a unilateral extension of jurisdiction is sufficient, and on that issue I would listen to the oil and mineral industries rather than advocacy think tanks.
It should also be noted that the US Navy is unlikely to intervene in civilian maritime disputes, but these are the type of disputes where the LOS Convention gives protection to US interests. The US Navy can't mandate for India to speed up its approval of cable maintenance activities in the EEZ, and we have already established precedent that we will not use force to free impounded civilian vessels except in the most extreme cases (such as the seizure of the SS Mayaguez by the Khmer Rouge in 1974).
Furthermore, the convention has always been viewed as protection against erosion of sovereign rights at sea. Since we will always need maritime partnerships to fight piracy, patrol straits, gather local intelligence, and provide safe ports and depots, the threat of use of force is often hollow. In such cases, international law will further US interests in maintaining partnerships far better than the threat of force. And as the more advanced developing countries expand their navies and coast guards, cost-free use of force is no longer in the cards.
The claim of potential climate change lawsuits grew from an over-enthusiastic environmental law professor who had failed to read the article of the convention that put very tight limits on the application of binding settlement to environmental law suits.This article appears in the dispute resolution section (Part XV) rather than the marine environment section (Part XII) of the Convention. Opposition op-eds are a poor substitute for going to the original source for information on such an important issue.
What the LOS ratification argument comes down to is not one individual issue or another, it is whether the US can work in collaboration with other countries to maximize the security, economic, environmental and scientific uses of the seas or whether we are going to take an anti-globalization approach that undercuts international cooperation both for our own national security and for global ocean development.
The USA is embarking down a very slippery slope when it even cracks open the door of allowing it sovereignty to be restrained or controlled by any international organization. Many of these nations would be under comunist rule had it not been for the USA defending them from other rogue nations. This is no deal for the USA, why do these people want to control the USA?