Law of the S.E.A.

With the recent statements from U.S. Secretary of Defense Panetta and the U.S. Chairman of the Joint Chiefs of Staff (CJCS) advocating the ratification of the three decade-old UN Law of the Sea Convention (UNCLOS), it is clear that U.S. policy will continue to support a cooperative approach to maritime security.  Besides Secretary Panetta’s detailed justification for UNCLOS in providing “economic jurisdiction” and a seat at the table (sans hypocrisy) for future international maritime dispute resolutions, UNCLOS supports freedom of navigation and access to the global commons (unless restricted by historical treaties such as the Montreux Convention).

Nations' Outer Continental Shelf boundaries and unilateral mining may not extend beyond "constraint lines" defined by UNCLOS.

UNCLOS ratification enshrines the principles of freedom of navigation and access, thereby strengthening the U.S. position in the pacific region and the U.S. pivot to South East Asia (S.E.A.). Ratification supports future S.E.A. diplomatic developments through its focus on the region’s most prominent domain.  Maritime territorial claims continue to inflict tension in S.E.A. and with UNCLOS as the primary legal guidance, the U.S. would be forced to stay on the diplomatic sidelines for a multilateral discussion without ratification.  Yet, U.S. accession and ratification would result in isolation and a decline in future cooperation with those remaining maritime countries that have maintained disputes over UNCLOS and chose not to accept or ratify it, namely:

Cambodia, Colombia, Democratic People’s Republic of Korea, Ecuador, El Salvador, Eritrea, Iran, Israel, Libya,  Peru, Syria, Timor-Leste, Turkey, United Arab Emirates, Venezuela [1] 

Despite the advantages Secretary Panetta and other U.S. advocates cite for the international maritime legal framework and global commons access rights (including the Arctic), the U.S. and other non-ratifying countries have long since acknowledged various negative aspects of the convention: increased non-local environmental policies, International Seabed Authority fees and taxes, international eminent domain grabs of intellectual property (to share new technology used in exploiting the economic opportunities of the expanded maritime domain), and the perception of a requirement to suspend all military-related actions while conducting innocent passage.

Claims submitted by the origina 2009 deadline.

In order to fully address the impact of UNCLOS ratification to S.E.A. regional stability, countries such as the U.S. must weigh the finer points of the treaty and second-order effects its ratification might bring.  As a new signatory, would U.S. diplomatic relations with Turkey and Israel now hinge on ignorance of Greece and Cyprus maritime boundary and Exclusive Economic Zone claims?  As U.S. businesses continue to explore deep sea beds, would the U.S. concede to limited exploitation and research of (traditionally unquestioned) U.S. bodies of water by an international consensus?  How would the U.S. discuss future fish stock trade with South American countries concerned with migratory fish locations beyond 200nm?  Perhaps the U.S. pursuance of UNCLOS to support the pivot to the Pacific truly outweighs these other non-vital diplomatic considerations, but I can’t stop wondering if by doing so, the U.S. may cause yet another pivot among its allies.


3 thoughts on “Law of the S.E.A.”

  1. Damned if you do, damned if you don’t. We can debate cascade effects, but if the risk of signing it outweighs the risk of not, and it supports the current strategy (which hopefully lasts longer than six months), execute. It’s not as simple as that, but sometimes your decision matrix has to skinny down that way.

    1. There are many sound reasons to join the convention, particularly for the international competitiveness of US industry (in addition to improving conditions for international maritime security cooperation).

      Ascribing vague criticisms to unidentified colleagues only introduces statements of dubious value. Without being a party to the Convention, potential US deep seabed miners cannot get international recognition of title to recovered minerals and would be closed out of international markets. More important, capital would not be available from lenders and investors when domestic legislation provides exclusivity only against other American firms. The same anti-investment issues apply to US oil drilling beyond 20nm from shore (heads of two major investment firms reconfirmed that this summer at the “Arctic Imperative” conference in Anchorage).

      Furthermore, the International Seabed Authority has been in existence for 18 years and is working as well as we hoped, perhaps even better, but we can’t take advantage of that when we are limited to the row of observer seats at the back of the conference room. It has developed and implemented a rule-based process for approval of applications for mining rights and has approved 17 sites in the Pacific, India and Atlantic Oceans. This summer, private firms in the UK and Belgium applied for and received exploration permits. Rules governing operation are comparable to rules for land based operations, and the boogyman of possible ‘mandatory technology transfer’ was eliminated by the 1994 Agreement on Implementation. You’ll have to be more specific with your criticisms because 18 years of practice don’t seem to bear out what you wrote with regard to the seabed mining system – and note that Lockheed Martin, our sole domestic licensee, has said that they will not conduct at sea activities under their licenses until the US becomes party to the Convention.

      US economic interests are not limited to seabed mining, oil drilling and shipping. While it doesn’t get much attention, you should also check out the support of AT&T, Verizon and other carriers for the convention as a tool for protecting their rights to lay and maintain cables across the continental shelf and through the EEZ of other countries.

      I can’t tell from your graphic whether you are criticizing the “constraint lines’ on the breadth of the legal continental shelf, but you should note that those lines extend far beyond the most liberal reading of the fatally ambiguous 1958 Convention on the Continental Shelf and even extend beyond the prolongation of the continental material underlying the sediment that has been the basis of every previous claim over the continental margin. We enshrined better terms for the limits of the continental shelf that we had hoped in our most optimistic strategy sessions, but we can apply them effectively until be become party to the convention.

      Regarding fish stocks beyond 200nm, in 1996 the US ratified the 1995 Fish Stocks Agreement that grew out of the LOS Convention after sailing through the foreign relations committee under Sen. Jesse Helms. That provides the basis for addressing the management of tuna, salmon and other migratory and straddling stocks beyond the EEZ.

      Regarding the right of innocent passage, the Convention largely adopts the exact provisions as the 1958 Geneva Convention on the Territorial Sea, but in the process it limits the basis on which a coastal state might deny innocent passage. It also adds a right to maneuver and stop in the territorial sea to conduct rescue operations.

      Your statement that joining the Convention might lead to a decline in cooperation with your short list of states (which includes North Korea and Iran) while not considering the stresses we have had in cooperation with parties to the convention due to our non-party status and our weakness in holding others to a convention to which we are not party seems exceedingly odd – did you really mean to say that? And being party to the convention is not going to change our cooperation with Israel or with Turkey. It seems to me that improving our cooperation at sea with 164 current parties is more important than worrying about difficulties for the countries on your short list.

      Finally, a point of information: a couple month after you made this post Ecuador joined the Convention. Peru and Cambodia are in their internal ratification process as well. There are now only 15 coastal states that are not party to the convention and that number continues to decline slowly but surely.

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