United States: On Threshold of UNCLOS

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United States: On Threshold of UNCLOS

□Shen Yamei

Amidst the rapidly evolving international maritime situation, a policy debate has been brewing among US decision-makers over the longdelayed issue of ratifying the United Nations Convention on the Law of the Sea (UNCLOS). While the US can rest assured knowing that it is the dominant sea power, it is still mulling the pros and cons of ratifying the Convention. Yet the prospect of the US formally joining UNCLOS looms large in the long run, and that will have adverse effects on China’s maritime security rights and interests.

Globalist Elite Argue for Joining UNCLOS

Being a maritime superpower and significant coastal country, the US took an active role in the drawing up of UNCLOS. It consistently engaged in the multilateral negotiation process and has successfully written its major concerns into the Convention. To illustrate, many important rules and regulations of UNCLOS, such as the right of innocent passage in territorial seas, transit passage in international straits, and the legal system covering the continental shelf, as well as freedom of the high seas, have all been modified to meet US demands.

In early 2009 when Hillary Clinton gave her testimony at her nomination hearing as secretary of state before the US Senate Foreign RelationsCommittee, she pointed out that “ratification of the Law of the Sea Treaty is long overdue”, and would be “a top priority” for her.1Nomination To Be Secretary of State, Hillary Rodham Clinton, Testimony before the Senate Foreign Relations Committee, Washington DC, January 13, 2009, http://2001-2009.state.gov/r/pa/ei/rm/113814.htm.In mid-2012, the Foreign Relations Committee of the US Senate held a series of hearings on the UNCLOS ratification issue. Most of the governmental officials, military officers, congressmen, as well as representatives from academia, industry and NGOs who testified argued for joining the Convention, and they provided a strong supporting case for that.

Being signatory to the Convention would render the US more forceful in intervening and mediating in maritime disputes.

First, a formal legal status inside UNCLOS is critical for the US to play a leadership role in today’s maritime affairs.As of January 7, 2015, altogether 167 States and entities are party to the Convention.2“Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as at 3 October 2014”, Division for Ocean Affairs and the Law of the Sea, United Nations, http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The United Nations Convention on the Law of the Sea.In fact, the US is the only permanent member of the UN Security Council and the only NATO member that is not yet a party to UNCLOS. No matter if the US joins the Convention or not, the fact is that the Convention has served as the foundation for global maritime order over the past thirty years, and it has provided an effective legal framework for countries’maritime activities. Most of the industrialized countries, emerging countries and US allies are signatories to the treaty. In particular, the US’ allies and partners in the Asia Pacific including Japan, Australia, and the Philippines attach great importance to it as they want to develop their maritime economies and strengthen maritime security. The Obama administration aims to repair the nation’s damaged image and restore its international status, and seeks to reclaim global leadership in foreign strategies. Only by ratifying the Law of the Sea Treaty, can the US join a common multilateral framework with its allies and partners, and create opportunities for pursuing common globalmaritime agendas with its allies and partners. In that way, being signatory to the Convention would render the US more forceful in intervening and mediating in maritime disputes.

Due to it not being a signatory to the Convention, the US is not able to function in the UN Commission on the Limits of the Continental Shelf, nor is the US involved in the work of the International Seabed Authority. However, these two regimes are establishing key legal systems for utilizing maritime resources, such as mining on the seabed and continental shelf demarcation in the Arctic. The US is also not represented in the International Tribunal for the Law of the Sea, and therefore cannot turn to it to resolve maritime disputes. Hillary Clinton, as secretary of state, strongly advocated that the US “needs to be at the stable where rights essential to our interests are debated and interpreted”.3Written Testimony of Hillary Rodham Clinton, Secretary, US Department for State, before the Senate Foreign Relations Committee, May 23, 2012, http://www.foreign.senate.gov/hearings/the-law-of-the-seaconvention-treaty-doc-103-39-the-us-national-security-and-strategic-imperatives-for-ratification.

Second, it is vital to lock-in maritime economic and resource interests with the legality and legitimacy provided by a binding treaty.The US boasts the biggest area of economic exclusive zones and wide extension of continental shelf; and it pays special attention to the utilization of oceanic resources and distribution of oceanic interests. As early as 1996, the US had foreseen possible exhaustion of traditional fishing resources, and signedThe Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.It is vital for the US to be protected by the Convention with regard to its rights and interests on the seas.

US Secretary of State Hillary Clinton (left) and Secretary of Defense Panetta (right) urged the Senate to ratify the UNCLOS, in Washington, May 23, 2012.

Oceanic industries could be an engine for economic growth, and such industries benefit from UNCLOS as it can lower manufacturing costs and enhance the security of the sea lanes for transportation by ship.4Testimony of Jay Timmons, President & CEO, National Association of Manufacturers, before the Senate Committee on Foreign Relations, June 28, 2012, http://www.foreign.senate.gov/hearings/the-law-of-thesea-convention-treaty-doc-103-39-perspectives-from-business-and-industry.For instance, the Convention provides the only authoritative legal regime with regard to international seabed mining, namely the International Seabed Authority (ISA). US businesses, despite their capability in seabed mining, are reluctant to commit big investments before their activities can be legally protected and potential conflicts of interests averted. Since mining companies from Canada, Australia, Germany, China and Russia have conducted seabed mining with licenses from the ISA, the US feels vulnerable as it believes it is losing its competitive edge to all of them.

In addition, geopolitics over the Arctic is heating up to such a degree that UNCLOS has become a basic tool for countries to gain presence there. If the US wants to claim the outer continental shelf beyond 200 nautical miles, it has to be a member of the Convention and submit its case to the UN Commission on the Limits of the Continental Shelf. Otherwise, US efforts for Arctic security and governance will be constrained.

Third, the Convention helps to broaden the scope of US sea power.The US is a superpower based on its unrivaled sea power. It consistentlypays great attention to building and maintaining its naval supremacy, so as to unequivocally command the sea. Since the end of World War II, the US has strived to control the sixteen choke points on the seas, including the Persian Gulf, the Strait of Hormuz, and the Malacca Strait, etc. Actually, the core of the US’national defense is its naval strength, which contributes essentially to its ability to project its power globally. The US military posture, therefore, calls for a wide range of maritime freedom and rights as contained in the UNCLOS. The US Department of Defense, the US Navy and the US Coast Guard are all in for the Convention. To be specific, the Convention endorses freedom of navigation and overflights over a vast area of water bodies, which enables the US to mobilize its forces worldwide and pursue global missions. In fact, the US military presence, whether in the Middle East or the Asia Pacific, is highly reliant on a strong and smart naval fleet. In times of conflicts, it is especially important for the military to have unimpeded access to forward positions.

The US military posture, therefore, calls for a wide range of maritime freedom and rights as contained in the UNCLOS.

The Convention entitles military ships complete immunity from the jurisdiction of any State other than the flag State on the high seas. And the Convention establishes the right to pursue and seize with regard to certain law-breaking behaviors of a target ship, commensurate with the duty to render assistance, to prohibit transport of slaves, as well as the duty to cooperate in combating piracy. This regime, coupled with relevant resolutions of the UN Security Council, statements of the G8 and bilateral agreements between the US and States concerned, will provide sharper teeth for US naval interception operations for anti-terrorism and non-proliferation purposes. In particular, international cooperation on enforcement of the Proliferation Security Initiative will be further validated.

Grounds of Anti-UNCLOS Conservatives

The other side of the coin is that conservatives in the US have managedto block ratification of the treaty in Congress for years. Resumption of the aforementioned positive arguments nowadays have once again touched the sensitive antenna of the “anti-UNCLOS” factions, as represented by officials such as former secretary of defense Donald Rumsfeld and scholars such as Steven Groves, a senior research fellow at the Heritage Foundation. These anti-UNCLOS conservatives are few in numbers, but their political influence is impressive, and more than a few Congressmen see eye to eye with them and act to obstruct any efforts to raise the ratification agenda on the Senate floor.

Most conservatives against the treaty maintain that the treaty bears “natural defects”, which are detrimental to US national security.For example, Article 82 in Chapter Six stipulates that “the coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured”, and that “the payments or contributions shall be made through the Authority”. Before the US has thoroughly examined the storage of nonliving resources in the covered area, such commitment is understood as bearing the possibility of creating an unbalanced share of rights and obligations. And in that event, accession would invite an open-ended global taxation on the US to forgo an incalculable amount of domestic royalty revenue.5Prepared Statement of Mr. Steven Groves, Bernard and Barbara Lomas Fellow, The Heritage Foundation, before the Senate Committee on Foreign Relations, June 14, 2012, http://www.foreign.senate.gov/hearings/ the-law-of-the-sea-convention-treaty-doc-103-39-pm.

Chapter Twelve on protection and preservation of the marine environment is also a contentious point since it will impose on the US an environmental law not of its own making. According to Article 194, “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source,” including from land-based sources, from or through the atmosphere, or by dumping. And States “shall endeavor to harmonize their policies in this connection”. This means the US must exercise restraint regarding emission of pollutants from land-based, atmospheric oroceanic sources. This equals a voluntary reconciliation with and surrender to what the US had not accepted in the Kyoto Protocol to the UN Framework Convention on Climate Change. It also means that the US will be exposed to lawsuits pursued by any other country regarding virtually any maritime activity of the US, such as alleged pollution of the marine environment from a land-based source or through the atmosphere.

“What this treaty proposes is nothing less than the international nationalization of roughly two-thirds of the Earth’s surface”.

Chapter Fifteen on settlements of disputes provides procedures to settle maritime disputes by peaceful means, combining both compulsory procedures and their optional exceptions. This type of flexibility is perceived to have created lack of certainty, and could be a “two-edged sword” against the US. On the one hand, the US could encourage or coerce the parties concerned into compliance with the treaty, by applying relevant clauses to resolve a dispute, probably resulting from different interpretations or implementations of the treaty. On the other hand, other countries could also find reasons and means to resort to their preferable procedures, if they differ from the US, in interpreting or implementing the treaty.

What is more, Article 309 claims that “no reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention”, this term is rejected for “undermining US sovereignty”.

Critics also claim that international authorities established by the Convention may abuse their power ensuing from the Convention.Since Barak Obama took office, the US has enhanced interactions with the United Nations in order to show some smart power charm and restore the US’ international image. However, this drew a fierce backlash from US conservatives in general and the Republicans in particular, who have been traditionally suspicious of the “intrusive role” of international organizations and worked to prevent the country from falling into “the trap” of the UN. They claim that the International Seabed Authority established by the Conventionis hostile to US interests, that it includes undemocratic governments, and that it would regulate US activities over or under the world’s oceans. All this would lead to a global government above US sovereignty, imposing on it more international obligations than it voluntarily accepts.

To illustrate, Oklahoma Republican Senator James Inhofe, a staunch treaty opponent, pointed out that the US would, under the Law of the Sea Treaty, “surrender billions, possibly trillions, in royalty payments for oil and gas produced from our Outer Continental Shelf to the International Seabed Authority,” and “that would be the first time in history to entitle an international organization to taxation on the US”.6Sen. James M. Inhofe and Sen. Jim DeMint, “U.N. treaties mean LOST US sovereignty,” July 25, 2012, http://www.inhofe.senate.gov/newsroom/oped/un-treaties-mean-lost-us-sovereignty-washingtontimes-07/25/2012.

In an article with theWall Street Journal, former secretary of defense Donald Rumsfeld quoted the words of former British Prime Minister Margaret Thatcher in 1982 that “what this treaty proposes is nothing less than the international nationalization of roughly two-thirds of the Earth’s surface”. Rumsfeld also cautioned that the treaty “remains a sweeping power grab that could prove to be the largest mechanism for the world-wide redistribution of wealth in human history,” and that it “proposes to create a new global governance institution that would regulate American citizens and businesses without being accountable politically to the American people.”He further accused the treaty’s supporters of “paying little attention to constitutional concerns about democratic legislative processes and principles of self-government”, which the American people take seriously as “the foundations of our nation.”7Prepared Testimony by Former Secretary of Defense Donald Rumsfeld before the Senate Foreign Relations Committee, June 14, 2012, http://www.foreign.senate.gov/hearings/the-law-of-the-seaconvention-treaty-doc-103-39-pm.

Harsh criticism also came from Edwin Meese III, who served as US attorney general during the Reagan administration, in that “once the treaty has been accepted, there is nothing to prevent a coalition of anti-American interests from taking over the tribunal and ruling against us (in theInternational Seabed Authority)”. He stated, “We have no reason to trust our security and economic health to the whims of an international tribunal.”8“The Law of the Sea Treaty Is Not for the US”, The Wall Street Journal Asia, June 13, 2012, p. 12.

The fundamental reason for the US’ reluctance to join the treaty is that its maritime rights and interests have been well protected, not thanks to a piece of paper, but to it being the world’s strongest maritime power.Treaty opponents are content with the fact that in the three decades since the UNCLOS entered into force, there has been no sign of US navigational rights and freedom, or access to any international water ways, being impeded due to non-membership of the treaty. Its opponents are confident that the best way to support US maritime rights and interest is through its dominant naval power, including both “hard”, sustained and forceful operation of fleets, and “soft”, the effective intervention of the State Department. International customary law also lays a solid legal basis for US maritime activities.

Furthermore, the US has comprehensively demarcated the limits of its maritime boundaries through presidential proclamations, acts of Congress, and bilateral treaties with neighboring countries. In the same way, full jurisdiction and control has been established over its entire continental shelf including key areas of “extended” continental shelf. To give one example: Proclamation 2667 was issued by President Truman on September 28, 1945, which effectively claimed that “the Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles.”9Proclamation 2667 - Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, by the President of the United States of America, September 28, 1945, http://www.presidency.ucsb.edu/ws/index.php?pid=12332.

Concerning US rights to deep seabed minerals, some treaty opponents asserted that Article 137 of the UNCLOS forbidding claims of sovereignty over the deep seabed or its resources is contractual in character, and may not as a matter of law prohibit seabed mining activities by non-parties to the treaty. In other words, the US does not incur the obligations provided for therein to which it objects. In practice, the US has signed a series of bilateral treaties and pacts with neighboring countries such as Mexico and Russia, on oil exploration in areas of the Gulf of Mexico, Bering Straits and the Arctic. In August 2011, Exxon Mobil and the Russian oil firm Rosneft agreed a deal to begin joint operations on Russia’s shelf in the Arctic Sea and in the deep waters of the Black Sea. This was regarded as one of the most important fruits of the “resetting” of US-Russian relations in the first term of Obama administration.

It is noteworthy that the US has been a member of the International Maritime Organization, which plays an important role in dealing with international maritime affairs, since 1950. The US is also a founding member of the Arctic Council and the Antarctic Treaty Consultative Parties. It would be fair to conclude that the status quo fully allows the US to be a de facto beneficiary of the current global maritime regime, sharing all the maritime rights and interests, while exempt from the restrictions of treatyrelated obligations.

Hidden Irritants for US-China Maritime Relations

A key catalyst for the US to reconsider the possibility of joining UNCLOS is the geopolitics in the Asia Pacific, and in particular the rise of China as an emerging power. Many US strategists and political pundits take seriously the development trends in this part of the world, and constantly express their concerns about China’s defense building drive in the maritime arena. In whichever way it has been described – “return”, “pivot”, or “rebalance”– the overarching aim of the US’ Asia Pacific strategy, has been to enhance the US’ regional presence, guard against any possible geopolitical challengesfrom other countries, and to maintain its maritime supremacy first and foremost. For this purpose, the defense report of 2012 identified “the arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia” as being inextricably linked to US economic and security interests.10Department of Defense, “Sustaining US Global Leadership: Priorities for 21st Century Defense”, United States of America, p.2, January 2012, www.defense.gov/news/Defense_Strategic_Guidance.pdf.And then secretary of defense Leon Panetta announced at the 2012 Shangri-la Security Dialogue that “by 2020 the Navy will reposture its forces from today’s roughly 50/50 percent split between the Pacific and the Atlantic to about a 60/40 split between those oceans”.11Secretary of Defense Speech, Shangri-la Security Dialogue, June 2, 2012, http://www.defense.gov/ speeches/speech.aspx?speechid=1681.

The Law of the Sea becomes a moral and legal instrument for the US to mould the regional maritime security architecture in accordance with its own strategic needs.

The fact that there is a temporal overlap between the US’ reconsideration of UNCLOS in mid-2012 and readjustments to its Asia-Pacific strategy since 2009 reveals much about US’ ambition to maintain its maritime supremacy, and its intention to tighten the “restraints” imposed by international laws and norms on China in dealing with regional maritime disputes.

To take the South China Sea disputes as an example, during the 2010 ASEAN Regional Forum (ARF) held in Hanoi, then secretary of state Hillary Clinton directly inserted the US into the disputes, stating that her country has a “national interest in freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea”, and that “claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with UNCLOS”.12Remarks at Press Availability, Hillary Rodham Clinton, Secretary of State, National Convention Center, Hanoi, Vietnam, July 23, 2010, http://www.state.gov/secretary/20092013clinton/rm/2010/07/145095.htm.In November 2011 when she visited the Philippines, Clinton further stated that the US seeks to “see the Law of the Sea used as the overriding framework forhandling territorial disputes”.13Signing of the Partnership for Growth and Joint Press Availability with Philippines Foreign Secretary Albert Del Rosario, Remarks, Hillary Rodham Clinton, Secretary of State, Manila, Philippines, November 16, 2011, http://www.state.gov/secretary/20092013clinton/rm/2011/11/177234.htm.

In this context, the Law of the Sea becomes a moral and legal instrument for the US to mould the regional maritime security architecture in accordance with its own strategic needs. Freedom of maritime actions as abusively interpreted by the US is maximized to the extent of trespassing on a coastal State’s territorial waters and exclusive economic zones. In this way, its allies’ trust in the US to act in their favor is strengthened. And a firm foothold is established to better the US’ image as a promoter of peaceful resolutions to the maritime disputes.

The push for ratification also maintains that it would then enable the US to counter China’s view of the treaty over a negotiating table, rather than through a series of maritime confrontations. Since 2001, a string of maritime frictions and tensions has taken place between the US and China, including the EP-3 aerial collision (2001), theUSNS Bowditchincident (2002), and theUSNS Impeccableincident (2009), among others. On December 5, 2013, the US missile cruiserUSS Cowpens, despite warnings from China’s aircraft carrier task group, broke into the Chinese navy’s military exercises in the South China Sea, and almost collided with a Chinese warship.

Controversies between the two countries have been mostly about the legality of seaborne and airborne military activities in the EEZs. And these controversies will possibly be more acute, and pose more challenges, if the US were to ratify UNCLOS. While China resorts to articles 88, 141 and 301 to stand for peaceful use of the seas, the US asserts that the scope of peaceful purposes shall not impair the inherent right of self-defense as reflected in article 51 of the United Nations Charter.14Brian Wilson, “An Avoidable Maritime Conflict: Disputes Regarding Military Activities in the Exclusive Economic Zone”,Journal of Maritime Law and Commerce,Vol.41, Iss.3, July 2010, pp. 421-437.In other word, US interpretations are much broader, claiming that the treaty does not prohibit all military activities in EEZs, but only those that threaten or use force in a mannerinconsistent with the UN Charter.15Raul (Pete) Pedrozo, “A Response to Cartner’s and Gold’s Commentary on ‘Is it Time for the United Stated to Join the Law of the Sea Convention?’”,Journal of Maritime Law and Commerce, Vol.42, Iss.4, Oct 2011. pp. 487-510.

In the foreseeable future, the complexities will increase for China and the US to resolve their maritime legal disputes.

Conclusion

Judging from the policy debate within the US regarding the pros and cons of joining UNCLOS, it is fair to conclude that formal accession to the treaty is a mega trend for the long-term political, economic and security interests the treaty will bring. For the time being, however, the US remains undecided and reluctant because the US is fully capable of orchestrating the maritime order based on its naval power and existent policy instruments.

In the transitional period prior to prospective US ratification of UNCLOS, it can be foreseen that the US, in consistence with its particular way of treating international laws, will follow selective multilateralism on maritime issues, hold fast to its alliance system, and in time of necessity issue unilateral statements. Most likely, what will come together with the Senate resolution of advice and consent to US accession to the UNCLOS will be substantive declarations and understandings. In the foreseeable future, the complexities will increase for China and the US to resolve their maritime legal disputes. With the US lingering on the threshold of UNCLOS, dictating its own preferences to others, the odds will also be great for China and its neighboring claimants to peacefully resolve their maritime sovereignty disputes.

Shen Yameiis Associate Research Fellow at the Department for American Studies, China Institute of International Studies.