Abroad Thoughts from Home

with Ian Townsend-Gault and Clive Schofield
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

Time for the United States to Join the Party?

Prospects for US Ratification of the United Nations Convention on the Law of the Sea

Clive Schofield and Ian Townsend-Gault

The re-election of President Obama in November 2012 once again raises the tantalising possibility that the United States (US) will finally become a party to the United Nations Convention on the Law of the Sea (UNCLOS).[1] The question is, following many dashed hopes in the past, will the US finally 'join the party' and, in common with the vast majority of the international community, subscribe to UNCLOS?

So Much to Gain, So Little to Lose
A particularly confounding, if not ironic, aspect of the non-ratification of the Convention by the United States is that not only did the US play such a significant role in shaping the Convention but that the US has so much to gain from UNCLOS.[2] A selection of the benefits to be derived from becoming party to the Convention are articulated below.

A Global Consensus
UNCLOS provides the overarching framework governing international ocean affairs. The Convention is one of the most wide-ranging, comprehensive international Conventions and, together with its associated agreements,[3] covers or touches on virtually all marine activities. UNCLOS has, moreover, achieved broad acceptance from the international community. At the time of writing the Convention boasted 164 parties, comprising 163 States plus the European Union. When it is recalled that there are 'only' 155 coastal States in the world, the near-comprehensive uptake of UNCLOS is underscored.

Indeed, despite being a non-party itself, the US nonetheless accepts that key aspects of UNCLOS, such as the maritime jurisdictional and boundary delimitation provisions, are declaratory of customary international law and conducts its policy accordingly.[4] In terms of international law and international relations, US accession to the Convention would therefore consolidate and reinforce the oceans policy and practice pursued by successive administrations of both political persuasions in the US.

Order for the Oceans
As noted above the Convention provides the overall governing international legal framework for ocean affairs. Fundamentally, the Convention promotes law and order in the oceans by specifying the nature and extent of state rights in maritime spaces while setting out concomitant responsibilities. It is founded on principles that counties such as the US have adopted and promoted, such as sustainable development, optimum utilisation of resources, equity, and the protection and preservation of the marine environment in the context of the legitimate rights of States. The Convention therefore serves to safeguard key concepts that are entirely keeping with US national interests, including freedom of navigation (see below). By providing the generally agreed framework governing oceans jurisdiction the Convention has played a significant role in restraining and regulating the so-called 'creeping jurisdiction' of coastal States.

Strategic Imperatives: Preserving Freedom of Navigation
As noted above, the US already conducts its oceans policy in accordance with the terms of UNCLOS. Indeed, and again rather ironically, it is the US that has proved itself to be the primary defender of the Convention. In particular, the United States has sought to counter excessive maritime claims on the part of other coastal States that run counter to the balance of rights and obligations laid out in the Convention. In particular the US has sought to defend and preserve freedom of navigation through the oceans.

The US seeks to achieve this aim through its Freedom of Navigation (FON) program which was established in 1979.[5] Through the FON program the US routinely protests against any practice excessive or contrary to the provisions of UNCLOS, or, more specifically, the United States' interpretation of those provisions. The rational for these actions is that, as a maritime nation, the national security of the US "depends on a stable legal regime assuring freedom of navigation on, and overflight of, international waters", and that in view of this, the United States will respond to what it views as excessive maritime claims in order to preserve the "careful balance of coastal and maritime state interests" enshrined in UNCLOS.[6]

The Freedom of Navigation Program provides for three types of responses - diplomatic representations in the form of formal protest notes, notes verbale or aides mémoire, "operational assertions" whereby United States air and naval forces undertake missions designed to emphasise freedom of overflight or navigation in a "low-key and non-threatening manner but without attempt at concealment" and through bilateral and multilateral consultations.[7]

Freedom of navigation remains a core strategic priority for the US, a view that the US has repeatedly and clearly articulated. For example, in January 2009 outgoing US President George W. Bush issued a National Security Directive in which it was stated that freedom of navigation was a "top national priority. "[8] Contrary to the allegation that the Convention somehow undermines US military and strategic interests, therefore, UNCLOS is actually a critical means by which the US safeguards its security.

The US is, of course, the world's sole superpower and its pre-eminent maritime power. Accordingly, the US clearly plays a leading role in global affairs. The US also perceives itself to be a world leader and is keen to project and promote this image and reality. The fact that the US is not a party to the Convention undermines that leadership role in the maritime sphere. Critically, when the United States comments on maritime issues of concern to it, such as regarding excessive maritime claims through the FON program or on the South China Sea disputes for instance, a frequently raised objection to Washington's interventions is that the US has not signed up to UNCLOS. This serves to compromise the credibility and authority of the US in global ocean affairs. US accession would therefore remove a somewhat irrelevant, but far from unimportant barrier to the United States playing a strong leadership role as the contemporary law of the sea. The counterpoint here is that by choosing not to participate the US is abdicating or at least undermining its credential to a leadership role in international ocean affairs. The rationale for ratification on this front alone is therefore, it is submitted, persuasive.

A Place at the Table
US accession to the UNCLOS regime would also enable and facilitate full US participation in how the law of the sea is further defined, applied, and modified. The 1982 Convention marked the end of the Third UN Conference on the Law of the Sea (UNCLOS III). It did not mark the cessation of the evolution and development of this branch of international law. And yet, the international community, by and large, has decided to pursue this process of evolution and development in the context of the UNCLOS regime. This alone speaks to the importance of securing the participation of all major ocean states. US non-participation compromises this. In essence, US non-participation denies the US a 'place at the table' within key institutions created as a consequence of the Convention and related agreements. For example, as a non-party the US has no representative on the International Tribunal on the Law of the Sea (ITLOS) and is ineligible to put forward a member of the Commission on the Limits of the Continental Shelf (CLCS). This is surely problematic from a US perspective. As noted above, the Convention is now widely accepted as the basis for global oceans governance yet the law of the sea continues to evolve and change. Without US input, the international law of the sea is likely to be shaped in a manner that does not fully take into account US national interests. This is why complacent arguments that the US can take advantage of the benefits that the Convention offers on the basis that it is reflective of customary international law, whilst avoiding the costs of participation are flawed. Such a strategy represents a distinct abdication of responsibility that carries with it the long-term risk that international custom will ultimately run counter to US interests.

In This Issue

Time for the United States to Join the Party?
Prospects for US Ratification of the United Nations Convention on the Law of the Sea

Ian Townsend-Gault and Clive Schofield

An Introduction to Geopolitical Tales
Mladen Klemenčić and Clive Schofield

Geopolitical Tales

II & I
Gerard Toal

Soft Drinking in Zambia
Elena dell'Agnese

Should Students Tell Professors When They Are Wrong?
Julian Minghi

The kind of teaching that I do doesn't fit at Corporate U
Steve Wexler

Jurisdictional Gains
Perhaps the most obvious and compelling gain for the United States will be secure title to jurisdiction over the non-living resources of the seabed and subsoil of the continental shelf extending beyond 200 nautical miles (nm). Both customary and conventional international law recognize state rights to this limit, but sea areas beyond are high seas, and sea-bed and sub-soil are part of the common heritage of humanity. These principles have been in process of development since the 1960s. The Convention, however, allows coastal States to establish outer limits to the continental shelf that go beyond 200nm provided the conditions set for in Article 76 of the Convention are satisfied. Through this process the United States stands to gain rights to enormous areas of seabed, especially in the Arctic. The Convention established the Commission on the Limits of the Continental Shelf (CLCS) to give official imprimatur to such outer continental shelf limits and thus the 'extended' or 'outer' continental shelf areas enclosed within them.[9] This is crucially important, because without secure legal title, it is hard to envisage any commercial entity wishing to explore and exploit resources beyond 200nm being able or willing to invest the billions of dollars necessary to conduct such operations, especially in hostile environments such as the Arctic. It should not be forgotten that security of title, and the need to ensure proper control of activities, were among the policy considerations which led to the 'Truman Proclamation' on the Continental Shelf of 1945.[10] This Proclamation laid the foundation for the entire modern law of the sea, because it took state rights beyond the limits of the territorial sea for the first time.

An added dimension to this equation is the prospect of the Russian Federation resubmitting to the CLCS in respect of substantial parts of the Arctic seabed. This may well occur in 2013. This will, in all likelihood, reignite US jurisdictional concerns over Russian claims in the Arctic and will, moreover, be reinforced by Canada and Denmark's (on behalf of Greenland) submissions due in 2013 and 2014 respectively.

Clearly one way for the US to address these concerns would be to become a party to the Convention and make its own submission to secure jurisdiction its own extended continental shelf rights. Indeed, the US is already well advanced and prepared in this respect. Alternatively, the US could simply take the view that that outer continental shelf limits defined on the basis of the CLCS's recommendations are not binding upon the US and thus of little interest. The latter perspective is, in our view, a less than sure way to address US policy imperatives. The major expansion of US maritime jurisdiction available through the provisions of UNCLOS also directly contradicts the oft-repeated myth pedalled by opponents of the Convention that it somehow undermines rather than enhances US sovereignty. A particular concern raised by opponents of the Convention in this context relates to the UNCLOS regime on seabed mining including the creation of the International Seabed Authority (ISA) to regulate activity on the international seabed ("the Area") beyond national jurisdiction and distribute the proceeds of that activity. However, these concerns were addressed through a supplementary agreement to the Convention negotiated in 1994. In short, the US stands to expand its maritime jurisdiction to a significant extend through UNCLOS.

Prior to the election a series of hearings were held before the US Senate's Committee on Foreign Relations. US Secretary of State Hillary Clinton spoke passionately in favour of US ratification whilst US Defense Secretary Leon Panetta commented that US accession to the Convention "secures our freedom of navigation and overflight rights as bedrock treaty law." Similarly, the Commander of the US Pacific Command (PACOM), Admiral Samuel Locklear stated unequivocally that "The Convention in no way restricts our ability or legal right to conduct military activities in the maritime domain." The Chairman of the Joint Chief of Staff Army General Martin Dempsey expressed analogous views. The strong showing in those hearings from proponents of the Convention reflected the broad alliance of interests that favour US accession to UNCLOS. Those speaking in favour of the US becoming a party to the Convention therefore included not only senior representatives of the US Executive branch and military as noted above, but representatives from key industries with a stake in the oceans (oil and gas, fisheries, shipping and telecommunications for example) as well as environmental groups.

No vote on UNCLOS was taken by the Committee at that stage. Instead it was decided to delay a vote until after the Presidential election. It was envisaged that post-election the Senate Committee on Foreign Relations would take a vote. It was (and is) anticipated that the vote would be heavily in favour of US domestic ratification of the Convention. UNCLOS could then be put to the vote in the 'lame duck' period prior to newly elected legislators arriving in Washington at the end of January 2013. The advantage of this timing was perceived to be that narrow political interests such as assuaging the concerns of powerful even if in our view deeply misguided domestic constituencies that oppose not only the UNCLOS but anything to do with the United Nations and even international law itself, could be side-stepped. That time is now upon us.

The critical consideration now is whether the US President backs ratification of UNCLOS with conviction or not. This will be critical to achieving the two-thirds majority necessary for passage of the treaty. The fear must be that other concerns will take priority (the so-called 'fiscal cliff' for instance) and that the seemingly in-built, if in our view deeply misguided, opposition of conservative Republicans to international law and treaties will prove an insurmountable obstacle. We have been here before. There is always some other apparently more urgent concern that distracts attention from UNCLOS. Similarly, the instinctive scepticism of US conservatives towards anything associated with the words "United Nations" remains as a major obstacle. The benefits of US ratification do, however, considerably outweigh the alleged costs so one can but hope that the present opportunity to pursue US ratification of the Convention will not once again be lost. Most unfortunately, at the time of writing (December 2012), the outlook for US accession to UNCLOS appears to be bleak.


1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (hereinafter LOSC). The Convention goes by a number of different acronyms, "UNCLOS" (United Nations Convention on the Law of the Sea) is used here as it is generally the most widely used and recognised term. "LOSC" (Law of the Sea Convention), is also used as this distinguishes the Convention from the three UN Conferences on the Law of the Sea (UNCLOS I, UNCLOS II and UNCLOS III) of 1958, 1960 and 1974-1982 respectively. In contrast, opponents of the treaty in the US tend to use the term "LOST" (Law of the Sea Treaty).

2. While the US needs to ratify the Convention domestically, as UNCLOS is in force the US would accede to it internationally.

3. Notably the Agreement relating to the Implementation of Part XI of the convention and the UN Fish Stocks Agreement. See, Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, available at, <http://www.un.org/Depts/los/convention_agreements/convention_overview_part_xi.htm>; and, The United Nations 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, (in force as from 11 December 2001), available at, <http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm>.

4. Roach, J.A. and Smith, R.W., United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff Publishers, 1996), 4-6.

5. Ibid., 3-13.

6. Ibid., 4.

7. Ibid., 6-7 and 10-11.

8. While this statement was made in the context of the Arctic, it is nonetheless reflective of US oceans policy more generally. See, Memorandum from The White House Office of the Press Secretary, Presidential Directive on Arctic Region Policy, III(B)(5), 9 January 2009, on file with the National Science Foundation, available at <http://www.nsf.gov/od/opp/opp_advisory/briefings/ may2009/nspd66_hspd25.pdf>.

9. Neither of the terms "outer" or "extended" continental shelf are ideal or have gained universal acceptance. The term "outer continental shelf" suggests that there are distinct parts of the continental shelf when legally this is not the case. For its part the term "extended continental shelf" gives a somewhat misleading impression that coastal States are somehow extending or advancing claims to additional areas of continental shelf. This is not the case as the sovereign rights enjoyed by the coastal State over the continental shelf are inherent. See, LOSC, Article 77(3) and the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases (ICJ Reports, 1969, 3, at para.19).

10. See, Presidential Proclamation No.2667 "Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf", 28 September 1945, Federal Register 12303; 59 US Stat.884; ; 3 C.F.R. 1943-1948 Comp., p. 67; XIII Bulletin, Department of State, No. 327, September 30, 1945, p. 485. Copy included in Volume II of Brown, E.D., The International Law of the Sea, (Aldershot: Dartmouth, 1994), at 113.

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