The United States was among the few first nations that took part in the third United Nations Conference on the Law of the Sea, which took place from 1974 to 1982 which then resulted in a treaty known as the United Nations Convention of the Law of the Sea (UNCLOS). The US also then subsequently participated in the negotiations that led to the modification of the UNCLOS treaty from 1990 to 1994. UNCLOS officially as a treaty came into effect from 1994 onwards. Although the US recognises UNCLOS as a part of international customary law, it has not yet ratified it.
United Nations Convention of the Law of the Sea (UNCLOS) defined the rights and responsibilities of nations in their use of the world’s oceans. In particular, it establishes guidelines for businesses, the environment and management of marine natural resources while also covering dispute resolution. At present, a total of 162 countries and the European Union have ratified UNCLOS.
The South China Sea
The region of the South China Sea is important for many reasons:
Figure 1 SCS Dispute and its claimants
In 2016 came a ruling from the UN Permanent Court of Arbitration located in The Hague on the South China Sea dispute. This ruling stated that there was no legal basis for China to claim historic rights over the region. It also rejected the famous “Nine Dash Line” given by China, according to which China claimed the entire region for itself. The decision of the Court had several implications around the world, with most countries agreeing with the ruling. China on the other hand against whom the ruling went against, rejected it, stating that it was ‘ill-founded’. This ruling in specific reference talks about the South China Sea and the dispute for claiming it by many countries in the region such as China, Vietnam, Philippines, Malaysia and Taiwan.
To be precise, the South China Sea is located to the east of Vietnam, west of the Philippines, east of Taiwan and Malaysia and south of China. The dispute for claiming sovereignty over the region by all these countries does not seem nonsensical if we consider what this region has to offer economically and militarily.
One historical argument against the US not ratifying the UNCLOS was that the convention violated U.S. sovereignty and gave too much power to Communist countries like the Soviet Union. But even after the end of the Cold War –– and even after the U.S. government made the Convention agree to broad changes in 1994 – the United States still refused to ratify the agreement. While President Reagan did accept most of the convention’s content as “customary international law,” the Senate consistently blocked actual ratification time and time again.
Another set of arguments against accession to UNCLOS is that the United States might have to surrender sovereignty to the International Seabed Authority (ISA), which has oversight over deep seabed mining. Critics of the convention claim that the U.S. would open itself up to international lawsuits over the environmental policy from the ISA. However, legal experts have concluded that UNCLOS doesn’t actually require the United States to adhere to any environmental laws or regulations other than its own.
On the flip side of it, ratifying the UNCLOS would bring substantial benefits such as the agreement would resolve many territorial disputes with other countries, encourage investors to take advantage of resources on the high seas and deep seabed, and allow the Navy easier access to foreign waters. Moreover, acceding to the agreement could serve as a signal that, after refusing to ratify treaty after treaty on the international stage, the U.S. is willing to play by the rules, at least when it comes to the oceans.
The United States depends on the oceans for its survival. $700 billion worth of goods are shipped through U.S. ports each year, and its fishing industry generates an annual $200 billion in sales. The ocean is poised to become more and more vital to Americans and the world as international trade continues to increase.
Additionally, advancing technology will soon enable greater use of resources on the ocean floor, meaning that the question of who owns the oceans will only get more important in the future. The best way to answer that question is through a written and codified set of rules, with a system of arbitration courts and voting councils to amend those rules when necessary.
Concomitantly, the US is under the belief that its ability to navigate freely on missions and patrols would be protected if it could rely on UNCLOS provisions and expect other countries to follow suit. Presently, the US Navy relies on customary international law, which is unwritten and subject to the whims of foreign countries. It also leaves room for cases –– for instance, are new unmanned underwater vehicles granted the same freedom of navigation as manned ships? Customary international law has nothing to say about that, and no system of courts to make a determination either way.
To this present day, the UNCLOS remains one of the forty-five treaties that has not been ratified by the US Senate, which is also sometimes referred to as the ‘world’s greatest deliberative body’. However, in practice, the US accepts and complies with all of the treaty provisions without ratifying it.
On March 10, 1983, President Ronald Reagan issued the United States Oceans Policy Statement, supported by National Security Decision Directive 83, which documents the U.S. view that UNCLOS reflects customary international law and fulfils U.S. interest in “a comprehensive legal framework relating to competing uses of the world’s oceans.” Successive presidential administrations – Republican and Democrat – have relied upon Reagan’s precedent to legitimize and guide the Freedom of Navigation (FON) Program in global hot spots like the South and East China Seas.
The Arctic Question
Climate change is heating up the race for the Arctic as receding sea ice gives way to increasing human activity. In addition to advancing new sea lanes, nations bordering the Arctic Ocean are seeking to develop offshore resources, particularly in the energy sector. UNCLOS (Part VI) gives the coastal state sovereign rights over the resources of its continental shelf. The Convention also permits a coastal state with a broad continental margin to establish a shelf limit beyond 200 nautical miles, subject to the review and recommendations of the Commission on the Limits of the Continental Shelf. Accordingly, the five Arctic coastal states – the United States, Canada, Russia, Norway, and Denmark have made or are in the process of preparing submissions to the commission.
Given that the United States has not ratified UNCLOS, U.S. nationals cannot serve as members of the Commission on the Limits of the Continental Shelf. It is not clear whether the United States, as a non-state party, can even make a legally recognized submission to the commission to assert its claim and fully protect its proprietary rights and energy interests. In contrast, Russia, which may be entitled to almost half of the Arctic region area and coastline, has already made its submission for vastly extending its continental margin, including a claim to an undersea feature spanning the Arctic from Russia to Canada. Russia and Canada are the two countries with which the United States has potentially overlapping extended continental shelf claims.
This maritime boundary dispute is no small matter. The U.S. Geological Survey estimates that the Arctic holds 22 percent of the world’s undiscovered oil and gas, amounting to more than 412 billion barrels of oil equivalent.
As a sovereign state, the United States can object to overlapping claims and take action in the Arctic consistent with international law. However, arguments against UNCLOS ratification must turn to support from the International Court of Justice, which has ruled (Nicaragua v. Columbia, 2012) that continental shelf rights exist as a matter of fact and do not need to be expressly claimed. Even if custom provides one remedy, a contract is better than a handshake – more so in a world of power and interdependence. Moreover, the Arctic coastal states, including the United States, have positively affirmed that the law of the sea provides the “legal framework” for resolving overlapping territorial claims. Intergovernmental bodies like the Arctic Council, while useful for a multilateral cooperation, lack authority for resolving territorial conflicts.
Critics against ratifying argue that UNCLOS is unnecessary for the U.S. to access and exploit its maritime resources. Although the U.S. follows UNCLOS regulations concerning its EEZ, these claims technically have no legal protection. Ratifying UNCLOS will provide legal justification and protection for U.S. maritime interests.
The point that the ratification of UNCLOS will be financially disadvantageous for the U.S., due to revenue sharing requirements in Article 82 from outer continental shelf profits, is also without merit. However, no payments are required in the first 5 years, and only 1 percent of site proceeds each year afterwards (increasing by 1 percent each year to a maximum of 7 percent). These costs are minor, and a worthwhile investment in strengthening UNCLOS to protect U.S. interests in the long run.
The Bush Administration issued a Presidential Directive asserting that “the United States is an Arctic nation.” The Directive declares that “[t]he United States has broad and fundamental national security interests in the Arctic region and is prepared to operate either independently or in conjunction with other states to safeguard these interests.” In addition to asserting “lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region,”270 the Directive encourages U.S. agencies to “[take all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law. “The terms of the Directive essentially instruct the United States to abide by UNCLOS and map the U.S. continental seabed in order to submit an extended continental shelf claim to the CLCS.
Proliferation Security Initiative (PSI)
The Proliferation Security Initiative (PSI) is an intergovernmental initiative which was established in 2003 by then President of the United States of America, George W. Bush, in 2003, to interdict the shipments of weapons of mass destruction (WMD) and related goods to terrorists and countries of proliferation concern. Initially, 11 countries joined with the United States to shape and promote the initiative which includes Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, and the United Kingdom. It has now grown to include a total of 105 countries who have publicly committed to the initiative. Membership in PSI only requires a state to endorse the PSI “Statement of Interdiction Principles”, a non-binding document that lays out the framework for PSI activities. Despite the support of over half the members of the United Nations, the initiative has received opposition from India, China and Indonesia of which China, despite being courted by the US to join the regime, turned it down citing concerns about the legality of interdictions.
The motivation behind the PSI was known to be the So San case in which Spanish and American forces cooperated in stopping and seizing a Cambodian registered vessel sailing in international waters off the Yemeni coast. The vessel was carrying missile parts and chemicals from North Korea to Yemen. It emerged that there was no basis in international law for the seizure of the vessel or its cargo and it was released and allowed to continue to its destination. The Bush administration was chagrined over an embarrassing episode where its actions did not match its tough rhetoric on non-proliferation. The seizure and subsequent release of the So San preceded only by days the release of the administration’s National Strategy to Combat Weapons of Mass Destruction, in which the U.S. government promised an aggressive approach to halt WMD proliferation. Since international law did not allow them to confiscate the vessel, in order to remove this gap in international law, several months later, President George W. Bush along with his counterpart, Polish President Aleksander Kwaśniewski, announced the initiative in Kraków, Poland on May 31, 2003. PSI’s ultimate goal is to effectively “interdict the transfer or transport of WMD’s, their delivery system, and related materials to and from states and non-state actors of proliferation concern”.
Thus the initiative is designed to make it more costly and risky for proliferators to acquire the weapons or materials they seek. By doing so, members hope that other countries will be dissuaded from pursuing weapons in the first place or experience significant delays in their acquisition efforts. Ironically, although the So San episode was critical to the formulation of PSI, the existence of PSI would have done nothing to change the final outcome. Because PSI is only designed to exploit existing legal authorities, not create new powers, were another So San episode to occur today, the United States would still be bound by international law to release the vessel.
US Domestic Politics
The Trump administration will face the same challenges as previous administrations when managing coastal borders. International waters are more fluid than land borders, with disputes over the precise locations of coastal borders, undersea mineral and petroleum exploration, commercial fishing and preserving areas as marine wildlife refuges, the Trump administration will now have to address many with many of the same issues that their predecessors had to. With specific regard to defining borders within waterways, disputed coastal borders with Canada still have not been resolved.
The Trump administration will also now be faced with issues which the preceding Presidents did not have to, such as the PRC constructing artificial islands within the Spratly Islands archipelago in the South China Sea, and whether the UN has the authority to order the PRC to cease constructing these artificial islands. The U.S. government’s potential ratification of the UNCLOS would effectively solve all of these issues.
Even assuming the Trump administration’s support, accession will not come easily. According to a Congressional report, in the course of U.S. history, only 1,100 treaties have been ratified in comparison to over 18,500 reported executive agreements. Senate inaction has proven to be a very effective veto. Even treaties that flow from American leadership, in areas like protecting rights for persons with disabilities, are rejected. As such, treaty ratification would be a monumental legacy-builder for Trump.
International frameworks like UNCLOS are also exceptional events in international affairs. Advocates and opponents of U.S. accession both acknowledge that the terms of UNCLOS would be impossible to negotiate today. This reality demonstrates the wisdom of locking-in U.S. gains and the importance of establishing international institutions capable of maintaining validity in a changing geopolitical environment.
In the current landscape, U.S. telecommunications companies are forced to seek foreign state sponsors to voice their concerns in UNCLOS disputes over undue interference by coastal states to the freedom to lay undersea cables. An estimated 98 percent of worldwide internet data is transmitted through the web of fiber optic cables lying on the ocean floor, which are the arteries of the global economy, and, therefore, a significant U.S. concern.
In addition, UNCLOS reflects current U.S. policy with respect to living marine resource management, conservation, and exploitation. For example, from within the treaty, the United States can more effectively exert its leadership in managing depleted fish stocks, which migrate internationally across maritime zones and the high seas. Organizations such as the World Wildlife Fund (WWF) and the U.S. Chamber of Commerce have strongly supported U.S. accession.
Unfortunately, America’s political environment is characterized by a rigidness and polarization that defy supple solutions for U.S. accession to UNCLOS. The current populist strain is characterized by faith in strong leaders, a disdain of perceived limits on sovereignty and a distrust of powerful international institutions. Criticism of international law has taken on religious fervour, become an emotional calling. The South China Sea case may only prove the ideological point of UNCLOS detractors, no matter how shortsighted.
Perhaps in this Trump era, only a figure like Donald Trump can lend legitimacy to a complex global undertaking that is in the U.S. national interest. In other words, a populist dealmaker may be required to overcome the trump card of domestic politics in this vital area of U.S. foreign policy. This scenario will require decisive presidential leadership and a clear view of the national interest in Washington.
Whether the U.S. ratifies it or not, the U.N. Convention on the Law of the Sea will continue to serve as the world’s standard agreement when it comes to the complex business of determining maritime rights and responsibilities. By rejecting UNCLOS, the United States loses out on national security, oceanic trade, resource extraction, and its own values as a defender of the rule of law. The current system of relying on customary agreements and pure military might to secure U.S. interests has not been working, and will only continue to worsen in the future. But this is far from a moot point –– President Trump has not yet taken a position on acceding to UNCLOS, and (if he values the military as much as he claims) he may yet decide to push it through Congress. After forcing the world to rewrite the rules of the sea in 1994, it’s time that the U.S. took responsibility and followed them.