Discussion regarding accession to UNCLOS in the United States

Hideshi Ueno,editorial staff of OPRF MARINT Monthly Report


In May, the U.S. Senate Foreign Relations Committee began a sequence of public hearing concerning whether the United Sates should accede to UNCLOS. The United States is the only permanent member of the U.N. Security Council and the only Arctic nation that is not a party to the treaty, which has been endorsed by 161 countries.

U.S. Secretary of State Hillary Rodham Clinton, U.S. Secretary of Defense Leon E. Panetta, and the Chairman of the U.S. Joint Chiefs of Staff Martine E .Dempsey gave statements to develop arguments for U.S. accession to UNCLOS at a public hearing hold on the 23rd.

In this Intelligence Assessment, the briefs of their statements along with the tones of recent arguments over U.S. accession to UNCLOS will be introduced.

1. Summary of U.S. Secretary of State Clinton’s Testimony

Testimony of Hillary Rodham Clinton, U.S. Secretary of State, emphasized, “Now, one could argue, that 20 years ago, 10 years ago, maybe even five years ago, joining the convention was important but not urgent. That is no longer the case today. Four new developments make our participation a matter of utmost security and economic urgency.” Below is the gist of her testimony.

(1) First, for years, American oil and gas companies were not technologically ready to take advantage of the convention’s provisions regarding the extended U.S. continental shelf. Now they are. The convention allows countries to claim sovereignty over their continental shelf far out into the ocean, beyond 200 nautical miles from shore. The relevant area for the United States is probably more than 1.5 times the size of Texas. U.S. oil and gas companies are now ready, willing, and able to explore this area. But they have made it clear to us that they need the maximum level of international legal certainty before they will or could make the substantial investments, and, we believe, create many jobs in doing so needed to extract these far-offshore resources. If the Unites States were a party to the convention, we would gain international recognition of our sovereign rights, and therefore be able to give our oil and gas companies this legal certainty. Staying outside the convention, we simply cannot.

(2) The second development concerns deep seabed mining, which takes place in that part of the ocean floor that is beyond any country’s jurisdiction. Now for years, technological challenges meant that deep seabed mining was only theoretical; today’s advances make it very real. But it is also very expensive, and before any company will explore a mine site, it will naturally insist on having a secure title to the site and the minerals that it will recover. The convention offers the only effective mechanism for gaining this title. China, Russia, and many other countries are already securing their licenses under the convention.

(3) The third development that is now urgent is the emerging opportunities in the Arctic Ocean. As the area gets warmer, it is opening up to new activities such as fishing, oil and gas exploration, shipping, and tourism. This convention provides the international framework to deal with these new opportunities. The United State is the only Arctic nation outside the convention. Russia and the other Arctic states are advancing their continental shelf claims in the Arctic Ocean. As a party to the convention, we would have a much stronger basis to assert our interests throughout the entire Arctic region.

(4) The fourth development is that the convention’s bodies are now up and running. The U.N. Commission on the Limits of the Continental Shelf (CLCS) that makes recommendations regarding countries’ continental shelves beyond 200 nautical miles is actively considering submissions from over 40 countries without the participation of a U.S. commissioner. International Seabed Authority (ISBA), the body addressing deep seabed mining, is now drawing up the rules to govern the extraction of minerals of great interest to the United States and American industry. It simply should not be acceptable to us that the United States will be absent from either of those discussions. Our negotiators obtained a permanent U.S. seat on the key decision-making body for deep seabed mining. No other international body that accords one country and one country alone − us − a permanent seat on its decision making body. But until we join, that reserved seat remains empty.

(5) Now as a non-party to the convention, the United States has to rely on what is called customary international law as a legal basis for invoking and enforcing these norms. So far we have been fortunate, but our navigational rights and our ability to challenge other countries’ behavior should stand on the firmest and most persuasive legal footing available, including in critical areas such as the South China Sea. The benefits of joining have always been significant, but today the costs of not joining are increasing. Please give advice and consent to this treaty before the end of this year.

Refer to the article: Testimony of Hillary Rodham Clinton, Secretary of State is available at; http://www.state.gov/secretary/rm/2012/05/190685.htm

2. Summary of U.S. Secretary of Defense Panetta’s Testimony

U.S. Secretary of Defense Leon E. Panetta said, “The fundamental point is clear: if the United States is to fully assert its historic role as a global leader, it must accede to this important Convention.” He stated five reasons for his approval of U.S. accession to UNCLOS. Below is the gist of his statement.

(1) First, as the world’s pre-eminent maritime power, and the country with one of the longest coastlines and largest extended continental shelf, the United States have more to gain from accession to the convention than any other country. With accession, U.S. interests can be defended.

(2) Second, by joining the convention, the United States can secure our navigational freedoms and global access for military and commercial ships, aircraft, and undersea fiber optic cables. As it currently stands, the United States is forced to assert our rights to freedom of navigation through customary international law. By joining the convention, the United States would find the firmest legal foundation freedom of navigation and our global mobility.

(3) Third, accession would bring legal certainty to a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad extended continental shelf beyond that zone.

(4) Fourth, accession would ensure our ability to reap the benefits of the opening of the Arctic, a region of increasingly important maritime security and economic interest. Each country has already tested new shipping routes and explored for natural resources as Arctic ice cover recedes. Joining the convention would maximize international recognition and acceptance of our substantial extended continental shelf claims in the Arctic. The United State is the only Arctic nation that is not a party to the convention. We are at a serious disadvantage in this respect. Accession would also secure our navigation and over-flight rights throughout the Arctic Ocean, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.

(5) Fifth, U.S. new defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia. Becoming a party to the convention would strengthen our position in this key area. For example, numerous countries sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea. By not acceding to the convention, the United States gives up the strongest legal footing for our actions. At the other end of this arc sits the Strait of Hormuz, a vital sea lane of communication to the United States and our partners. We are determined to preserve freedom of transit there despite Iranian threats to impose a blockade. U.S. accession to the convention would help strengthen worldwide transit passage rights under international law and help to further isolate Iran as one of the few remaining non-parties to the convention.

Refer to the article: Written Testimony of Leone Panetta, Secretary of Defense is available at; http://www.foreign.senate.gov/imo/media/doc/SecDef_Leon_Panetta_Testimonydocx.pdf

3. Summary of the Chairman of the U.S. Joint Chiefs of Staff Dempsey’s Testimony

The Chairman of the U.S. Joint Chiefs of Staff Martine E. Dempsey said, “There are many reasons for this support. I would like to highlight three.” Below is the gist of his statement.

(1) First, joining the convention would give U.S. Navy’s day-to-day maritime operations a firmer, codified legal foundation. The United States relies on customary international law and physical presence to secure global freedom of access. But there is risk in this approach. Tradition is a shaky basis upon which to rest U.S. national security and the protection of U.S. forces. Customs can be disputed, and they can change. Joining the convention would provide legal certainty to U.S. navigational freedoms and legitimacy to U.S. maritime operations that customary law simply cannot. UNCLOS would affirm critical navigational freedoms and reinforce the sovereign immunity of our warships as they conduct these operations. These include the right of transit through international straits, the right to exercise high seas freedoms in foreign exclusive economic zones, and the right of innocent passage through foreign territorial seas. The convention would also provide a stronger legal basis for some important activities such as stopping and boarding stateless vessels.

(2) Second, joining the convention would provide a consistent and effective legal framework for opposing challenges to the rules-based international order in the maritime domain. Around the globe nations are expanding their naval capabilities. We are also seeing countries expand their maritime claims—in the direction of restricting movement on the oceans. Illegitimate expansionism could become particularly problematic in the Pacific and the Arctic Ocean, two regions whose importance to our security and our economic prosperity will only increase over the next several decades. The convention would provide the United States an important tool to help stave off jurisdictional creep in these areas and to resolve future conflicts peacefully and with less risk of escalation.

(3) Last, being a member of the convention would better allow the United States to exercise global security leadership—a critical component of our global strategy. At this rate, the United States is the only permanent member of the U.N. Security Council and the only Arctic nation that is not a party to the convention. As a result, there are limits to U.S. ability to build coalitions for important international security efforts. The United States should become party to the Law of the Sea Convention now and demonstrate our global maritime leadership.

Refer to the article: Written Testimony of General Martin E. Dempsey, Chairman Joint Chiefs of Staff is available at; http://www.foreign.senate.gov/imo/media/doc/General_Dempsey_Testimony%20(2012-05-23)%20(Final).pdf

4. Argument that UCLOS is unnecessary

The American think tank Heritage Foundation’s research fellow Steven Groves contributed an article titled “U.S. Accession to U.N. Convention on the Law of the Sea Unnecessary to Develop Oil and Gas Resources” to the foundation’s BACKGROUNDER No. 2688 dated the 14th. Groves insisted in the article that (a) Under international law and long-standing U.S. policy and practice, the United States has already established jurisdiction and control over its extended continental shelf (ECS) and is in the process of delimiting the boundaries of its ECS. (b) The United States as a sovereign nation can accomplish its objectives regarding the ECS and its resources without acceding to a deeply flawed treaty or seeking the approval of an international commission of experts housed at the United Nations. Below is the summary of his article.

(1) Since 2003, in an effort to define the outer limit of the U.S. continental shelf, the United States has collected bathymetric and seismic mapping data on the outer margins of its continental shelf in the Arctic Ocean, Gulf of Alaska, Gulf of Mexico, and Bering Sea; along the Atlantic and Pacific Coasts; and off the Northern Mariana Islands, Kingman Reef, Palmyra Atoll, Guam, and Hawaii. The U.S. Extended Continental Shelf Task Force is conducting this data collection. To date, the ECS Task Force has identified six areas that “likely” contain submerged continental shelf and qualify as ECS and nine areas that “possibly” qualify (refer to MAP). The value of the hydrocarbon deposits lying beneath the U.S. ECS is difficult to estimate, but it is likely substantial.

(2) Regarding “International Recognition” of the U.S. ECS, since 1945, U.S. Presidents have issued proclamations and Congress has enacted laws on U.S. maritime claims and boundaries. None of these has been challenged by any nation, any group of nations, or the “international community” as a whole.

a. In 1945, U.S. President Truman claimed jurisdiction and control over the U.S. continental shelf and its resources and established a conservation zone for coastal fisheries.

b. In 1953, U.S. congress refined Truman’s continental shelf proclamation when it enacted the Outer Continental Shelf Lands Act.

c. In 1983, U.S. President Reagan declared a 200 nm exclusive economic zone (EEZ). After deciding in July 1982 not to sign UNCLOS. The announcement proclaimed “an Exclusive Economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast.”

d. In 1988, Reagan extended the breadth of the U.S. territorial sea from 3 nm to 12 nm.

e. In 1999, U.S. President Clinton proclaimed an extension of the U.S. contiguous zone from 9 nm to 24 nm

(3) Once the United States completes the mapping and delineation of its ECS, it should confirm its jurisdiction and control over those areas by presidential proclamation. In 1987, a U.S. government interagency group The Interagency Group on Ocean Policy and Law of the Sea issued a policy statement declaring its intent to delimit the U.S. ECS in conformity with Article 76 of UNCLOS. The policy statement sets out a process for obtaining domestic approval and providing international notification of the delimited U.S. ECS as follows: “After delimitation of the ECS is completed, the results of any such delimitation shall be…transmitted to the President for review. If approved, the Department of State shall transmit charts depicting the delimitation and other relevant information to the Secretary-General of the United Nations and any other organizations as the Interagency Group shall determine to be desirable.”

(4) Despite the claims of UNCLOS proponents, the United States can successfully pursue its national interests regarding its ECS—particularly oil and gas exploitation—without first gaining universal international recognition of its outer limits. While achieving unanimous international recognition for the borders of the U.S. ECS is unnecessary, it is important for the United States to negotiate on a bilateral basis with nations with which it shares maritime borders to delimit and mutually recognize each other’s maritime and ECS boundaries. This process is already underway in regions where the United States has presumptive areas of ECS, including resource-rich areas in the Gulf of Mexico and the Arctic Ocean.

(5) In June 2000, the United States and Mexico signed a treaty dividing the area of ECS within the western gap and it became effective in January 2001. In February 2012, the United States and Mexico signed a treaty regarding the exploitation of transboundary reservoirs located along the continental shelf boundary shared by the two nations within the western gap. The treaty has not yet been ratified by the U.S. Senate.

There is no evidence that any nation, any group of nations, or the international community as a whole does not or will not recognize the treaty of the western gap. Yet UNCLOS proponents commonly claim that U.S. companies will lack the “certainty” they require to develop the hydrocarbon resources located on the ECS unless the United States accedes to the convention, in the U.S. jurisdictional marine area of the western gap, development mining areas have been leased to U.S. companies and one foreign company.

The U.S. experience of the western gap should serve as a model for future bilateral negotiations and treaties with other nations that share ECS boundaries with the United States. For example, the United States should negotiate a treaty with Mexico and Cuba to delimit their respective areas of ECS in the eastern gap in the Gulf of Mexico, with Russia in the North Pacific Ocean, with Canada in the Arctic Ocean and other marine areas, and the Pacific islands marine area.

(6) Regarding the Arctic Ocean, proponents insist that the right to exploit the ECS in the Arctic Ocean depends on U.S. accession to UNCLOS. Much of the supposed distress voiced by UNCLOS proponents stems from Russia’s 2001 submission to the CLCS, in which Russia laid claim to a vast area of Arctic ECS. The United States and the USSR concluded the maritime boundary agreement in September 1990. Russia’s 2001 submission to the CLCS in no way overlaps or infringes on potential areas of U.S. ECS in the Arctic. Russia’s claim adheres to a boundary line that the United States and the USSR agreed upon in a 1990 treaty. After Russia made its 2001 claim, five nations (Canada, Denmark, Japan, Norway, and the United States) submitted objections to the CLCS. The United States made an objection against Russia’s natural prolongation of its continental shelf, but Russia observes the boundary line agreed by the 1990 treaty. In June 2002, in light of the objections to Russia’s ECS claim, the CLCS recommended to the Russians that they provide a “revised submission.”

(7) The United States has long held the position that U.S. corporations and citizens have the right to explore and exploit the resources of the deep seabed and may do so whether or not the United States is an UNCLOS member. The United States made its position very clear in March 1983 during the final days of the Third U.N. Conference on the Law of the Sea.

5. Argument against U.S. accession

Paul S. Giarra, a former Senior Country Director for Japan in U.S. Department of Defense (currently, the president of Global Strategies & Transformation), contributed an article titled “The Folly of UNCLOS” to The Diplomat (electronic edition) dated May 28, developing opposing viewpoints on U.S. accession to UNCLOS. Giarra stated that the U.N. Convention on the Law of the Sea is as much as anything else about fundamental disagreements between the United States and China, and the United States should not sign up. The summary of his view is pointed out as follows.

(1) UNCLOS is deeply flawed. The U.S. Senate should be deeply skeptical of claims that because it is an international agreement. UNCLOS enshrined customary maritime law, but it also contradicted it by extending national claims far to sea, well beyond traditional claims, in the form of sui generis Exclusive Economic Zones. This creation of EEZs established new claims and conflicts that never before existed.

(2) China has espoused the doctrine of strict enforcement of its self-perceived UNCLOS rights through military and political intimidation. Moreover, China has, based upon its unitary interpretation of UNCLOS, assumed rights in the EEZs that not only were not intended by the framers, but which are troubling in their implications. These rights would extend security as well as economic rights to the limits of the EEZ, and in so doing preclude even routine military surveillance. The widespread recognition of these fabricated rights would be the death knell of freedom of the seas. Although the Chinese have prudently toned down their rhetoric in international fora in these days, their aggressive operations in the maritime commons belie any notions that Beijing has moderated its opinions or policies regarding Chinese rights.

(3) The particular issue of China within the UNCLOS accession debate has emerged only lately. Therefore, earlier American endorsements of UNCLOS are obsolete and have been negated by new circumstances. This is not the time to call for UNCLOS accession. It is time for a clear-eyed debate on the merits and demerits of UNCLOS, in the wider perspective of the rise of China.

(4) This is not a rule-of-law issue: this is a contract issue. UNCLOS is a bad contract, and getting worse because the environment to which it pertains has changed dramatically since it was drafted. Fundamentally, its merits are debatable, and whether or not we sign up to it is an option, and should not be perceived as an obligation. Perhaps one way to express this is to say that what is acceptable with regard to UNCLOS is not new, and what is new is not acceptable. It is the Chinese that are trying to redefine UNCLOS according to their own purposes, without re-negotiating the contract, and in so doing undermining customary law. At the tactical level, I do not believe for a moment that acceding to UNCLOS is going to improve our negotiating position with the Chinese, or change minds in Beijing. UNCLOS issue is as much as anything else, and more than most, the manifestation of the fundamental and systemic disagreement and contest now in place between the United States and China. We need to join that contest at times and places of our own choosing.

Refer to the article: The Folly of UNCLOS

6. Comment

This is the third hearing on accession to UNCLOS held by U.S. Senate Foreign Relations Committee. In 2004 the Senate Foreign Relations Committee endorsed the convention by a vote of 19 to 0; and in 2007, it approved the treaty by a vote of 17 to 4. But, because of staunch opposition from a handful of conservatives worried about what they say are threats to America’s sovereignty, the treaty has never come up for a vote before the full U. S. Senate.

Ernie Bower and Gregory Poling, belonging to the American think tank Center for Strategic & International Studies (CSIS), insisted that opponents have presented four general arguments:

(1) The Law of the Seas restrictions would interfere with U.S. military interests.

(2) The International Seabed Authority (ISA), which determines rights to seabed mining, would block U.S. economic interests.

(3) The Law of the Sea’s taxation scheme for exploitation of resources within a nation’s exclusive economic zone would redistribute revenues unfairly.

(4) The treaty would limit U.S. sovereignty.

According to Bower and Poling, such arguments against ratification have been steadily weakened in the last three decades and were overwhelmingly addressed in 1994. Some reasons are pointed out as follows. The first objection has largely been dropped in the face of more than two decades of overwhelming support from every branch of the U.S. military. The second is clearly not a concern to the U.S. industries actively pushing U.S. ratification. Regarding the third concern, U.S. business community has signaled they are willing to pay. Opponents too often overlook the fact that following renegotiation of the Law of the Sea, the United States is guaranteed the only permanent veto on how funds are distributed. Regarding the fourth objection, although opponents said that the United States is restricting its jurisdictional sovereignty by limiting itself to a 200 nautical mile exclusive economic zone, ratification would “massively increase U.S. sovereign jurisdiction”. It is a great opportunity to expand its sovereignty.

This time hearing differs from the past two times in being held during the change of security environments surrounding the United State in the Arctic Ocean and the South China Sea. The United States is the only Arctic nation outside the convention. U.S. Secretary of States Clinton stated that a great opportunity for its resources development in the Arctic Ocean is about to be created, and UNCLOS will become an international framework for the United States to deal with such new opportunities. Meanwhile, like Groves, there exists an opinion, saying bilateral treaties with neighboring countries enable the United States to develop resources in a continental shelf without international recognition based on UNCLOS.

Pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes in the South China Sea, the United States is a non-UNCLOS member. In addition, particularly the United States and China are involved in a dispute over the ways of military activities. Giarra insisted that the pros and cons of U.S. accession to UNCLOS should be debated under the new circumstance of the rising China, saying “the UNCLOS issue is as much as anything else, and more than most, the manifestation of the fundamental and systemic disagreement and contest now in place between the United States and China.”

Secretary Clinton emphasized, “The benefits of joining have always been significant, but today the costs of not joining are increasing.” Moreover, Bower and Poling said, “The most important reason, however, for U.S. accession has remained unchanged for 30 years: a rules-based international order is in the United States’ interests. The current global order and the U.S. preeminence within it are built upon legal norms and rules. Those rules do not unfairly constrain the United States. They constrain those that would overturn the system, and they prevent a return to an earlier era of great-power competition and might-makes-right diplomacy.” Also, successive U.S. Secretaries of State under the administration of the Republican Party argued, “U.S. accession will codify our maritime rights and give us new tools to advance national interests,” and “We have been on the sidelines long enough. Now is the time to get on the field and lead.”

However, as Secretary Clinton pointed out, if U.S. accession to UNCLOS might be an urgent issue, whether a two-thirds vote at the U.S. full Senate can be received seems to be a knife-edge situation, considering that the U.S. presidential election and congressional election are carried out this year.

From “Intelligence Analysis (May 2012)”