United States non-ratification of the UNCLOS
The United States was among the nations that participated in the third United Nations Conference on the Law of the Sea, which took place from 1973 through 1982 and resulted in the international treaty known as the United Nations Convention on the Law of the Sea (UNCLOS). The United States also participated in the subsequent negotiations of modifications to the treaty from 1990 to 1994. The UNCLOS came into force in 1994. Although the United States now recognizes the UNCLOS as a codification of customary international law, it has not ratified it.
UNCLOS, also called the Law of the Sea Convention or the Law of the Sea Treaty, defines the rights and responsibilities of nations in their use of the world's oceans; it establishes guidelines for businesses, the environment, and the management of marine natural resources. To date, 162 countries and the European Union have joined the Convention.
The Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened in late 1973 in New York. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of maritime boundary disputes. With more than 160 nations participating, the Conference continued until its final meeting in late 1982, at which time the final act was signed and the Convention was opened for signature. As time went on, it became clear that the United States, among other developed states, was not willing to agree to Part XI of the Convention concerning deep seabed portions and mining of potentially valuable metals.
The United States objected to Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. The U.S. claimed that the provisions of the treaty were not free-market friendly and were designed to favor the economic systems of the Communist states. The U.S. also argued that the International Seabed Authority established by the Convention might become a bloated and expensive bureaucracy, due to a combination of large revenues and insufficient control over what the revenues could be used for.
The United States accepted all but Part XI as customary international law. In March 1983 President Ronald Reagan, through Proclamation No. 5030, claimed a 200-mile exclusive economic zone. In December 1988 President Reagan, through Proclamation No. 5928, extended U.S. territorial waters from three nautical miles to twelve nautical miles for national security purposes. However a legal opinion from the Justice Department questioned the President's constitutional authority to extend sovereignty as Congress has the power to make laws concerning the territory belonging to the United States under the U.S. Constitution. In any event, Congress needs to pass laws defining if the extended waters, including oil and mineral rights, are under State or Federal control.
Revision of the UNCLOS
From 1983 to 1990, the United States attempted to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.
Thus, modifications to that provision were negotiated, and an amending agreement was finalized in July 1994. The U.S. signed the Agreement in 1994 and now recognizes the Convention as general international law, but has not ratified it at this time. UNCLOS entered into force in November 1994 with the requisite sixty ratifications.
On April 24, 2004 Jeane Kirkpatrick (Reagan Administration United Nations Ambassador 1981-1985), testified against United States ratification of the treaty before the Senate Armed Services Committee, in which she argued that "Viewed from the perspective of U.S. interests and Reagan Administration principles, it was a bad bargain," and that "its ratification will diminish our capacity for self-government, including, ultimately, our capacity for self-defense."
On April 11, 2006, the 5-Member UNCLOS Annex VII Arbitral Tribunal, presided over by H.E. Judge Stephen M. Schwebel, rendered after two years of international judicial proceedings, the landmark Barbados/Trinidad and Tobago Award, which resolved the maritime boundary delimitation (in the East, Central and West sectors) to satisfaction of both Parties and committed Barbados and Trinidad and Tobago to resolve their fisheries dispute by means of concluding a new Fisheries Agreement.
On May 15, 2007, United States President George W. Bush announced that he had urged the Senate to approve the UNCLOS.
On September 20, 2007, an Arbitral Tribunal constituted under UNCLOS issued its decision on a longstanding maritime boundary dispute between Guyana and Suriname, which contained a ruling blaming both nations for violating treaty obligations.
On January 13, 2009, speaking at her Senate confirmation hearing as nominee for United States Secretary of State, Senator Hillary Clinton said that ratification of the Law of the Sea Treaty would be a priority for her.
On May 23, 2012, Secretary of State Hillary Clinton testified before the U.S. Senate Committee on Foreign Relations and argued for the ratification of the treaty. During the same hearing, Secretary of Defense Leon Panetta and Joint Chiefs of Staff Chairman General Martin Dempsey also urged swift ratification of the Law of the Sea Treaty.
On June 14, 2012, The U.S. Senate Committee on Foreign Relations held the so-called "24 Star" hearing, featuring six four-star generals and admirals representing every branch of the U.S. Armed Forces. Each witness, including the Vice Chairman of the Joint Chiefs of Staff, Chief of Naval Operations, Commandant of the Coast Guard, Commander of U.S. Transportation Command, Commander of U.S. Northern Command, and Commander of the U.S. Pacific Command all testified in favor of ratifying the treaty.
On June 28, 2012, the U.S. Chamber of Commerce, the American Petroleum Institute (API), the National Association of Manufacturers (NAM) and Verizon Communications testified before the U.S. Senate Committee on Foreign Relations that the Law of the Sea Treaty would strengthen the U.S. economy and help create American jobs.
On July 16, 2012, 34 Republican Senators signed a letter to U.S. Senate Foreign Relations Committee Chairman John Kerry pledging to vote against the treaty. Because treaty ratification in the U.S. requires 2/3 of the United States Senate to vote for approval, the 34 signatories are enough to stop treaty ratificiation. However, Senator Lisa Murkowski later said that the vote to deny passage in 2012 was purely political and that the U.S. Chamber of Commerce would deliver enough Republican votes for passage in the lame duck session.
In the United States there has been vigorous debate over the ratification of the treaty, with criticism coming mainly from political conservatives who consider involvement in some international organizations and treaties as detrimental to U.S. national interests. A group of Republican senators, led by Jim Inhofe of Oklahoma, has blocked American ratification of the Convention, claiming that it would impinge on U.S. sovereignty. Other commentators have argued that although the Bush administration, the Pentagon and the Senate Foreign Relations Committee favored ratification, other US congressional committees possessing oversight jurisdiction have yet to undertake an open, transparent and substantive public review of this most complex treaty's significant environmental regulatory and judicial enforcement provisions, their relationship to the provisions of other multilateral environmental treaties, and the need to amend US federal environmental, wildlife, chemicals and offshore drilling laws and/or regulations in order to implement the international legal obligations the US would assume upon ratification of the UNCLOS. It is arguable whether such a review would have revealed the relationship between US UNCLOS accession efforts, environmental legislation previously proposed by members of the 111th Congress and oceans policies adopted by the Obama administration.
- The environment: Oceans cover over 70% of the Earth. In the U.S., there are laws to keep marine resources available for future generations. UNCLOS sets a legally binding international standard which aims to protect the marine wildlife and environment.
- National security: The U.S. military, which relies heavily on its ability to freely navigate on and fly over the sea, has been a strong advocate of UNCLOS. In the absence of treaty law, the US relies on customary law that can change as states' practices change. Also, under this customary law, the Pentagon claims that countries often make unreasonable and irresponsible claims on marine territory that frustrate U.S. military action. The U.S. has tried to work around these claims, but without a legal framework to support them, the Pentagon believes it risks compromising its intelligence and military operations at sea.
- International diplomacy and peaceful dispute resolution: The Convention offers a peaceful way to resolve territorial and natural resource disputes through the International Tribunal for the Law of the Sea (ITLOS), based on agreements to which signatory parties have already committed. In contrast, without ratification, the US has no peaceful recourse if another non-signatory party decides to close its straits to navigation except through the Permanent Court of Arbitration which was established in 1902 to allow States to settle disputes in a manner other than war.
- It helps American businesses: Each country has exclusive rights to manage the resources in areas near its coast. Under the terms of UNCLOS, which maps out the boundaries of these areas, the American zone is larger than that of any other country in the world. The size of this zone is 3.36 million square miles — bigger than the lower 48 states combined. In addition, under UNCLOS, coastal states can exercise sovereign rights over natural resources within the extended continental shelf area beyond this territory. It would also give US companies an opportunity to apply for licenses with the ISA, which manages claims to resources in the deep seabed, an area over which no country has sovereign rights.
- Helpful for American allies: Ed Royce has pointed out that the treaty is already providing a rule of law route for resolving territorial disputes in the South China Sea.
- National sovereignty: The treaty creates the International Seabed Authority (ISA) with its own dispute resolution tribunal. However, should the U.S. stop its current compliance with the U.S.-negotiated laws of the Convention, the U.S. could not be taken to the Law of the Sea Tribunal since the U.S. has indicated that it would choose binding arbitration rather than availing itself of the International Tribunal on the Law of the Sea.
- The environment: Some of the Convention's conservation provisions would provide new avenues for non-U.S. environmental organizations to affect domestic U.S. environmental policies by pursuing legal action in both US and international courts. In addition, requirements that nations either harvest their entire allowable catch in certain areas or give the surplus to other nations (article 62) could result in mandated overfishing.
- Taxation: The license fees and taxes levied on economic activities in the deep seabed area by the ISA would be, in effect, a form of 'taxation without representation'. Citizens would be indirectly taxed through business and governmental activities in the area.
- Economics: Businesses can already exploit resources from the international area; ratifying the treaty would force them to buy licenses for that right and pay taxes on the proceeds.
- Navigation rights not threatened: One of the treaty's main selling points, legally recognized navigation rights on, over, and under straits, is unnecessary because these rights are not currently threatened by law or by any military capable of opposing the U.S.
- Harm to de-militarizing operations: The treaty would require all undersea ocean vessels, including submarines used for mine detection to protect ships exercising the right of innocent passage, to navigate on the surface in territorial waters to be entitled to the right of innocent passage. The operative language is identical to that contained in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the U.S. is already a party.
- Limited control over funding: The U.S. would have no direct control over how the money is used.
- Lack of need: The U.S. already honors almost all the provisions of the treaty. For practical purposes, opponents argue, there is no pressing need to ratify it that outweighs the negatives of the remaining provisions. Indeed, the UNCLOS is already customary law, meaning the US is bound by its provisions regardless.
- United Nations Convention on the Law of the Sea
- International Tribunal for the Law of the Sea
- Maritime Security Regimes
- Territorial waters
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