Lawless on the High Seas: Why the U.S. Can and Must Ratify UNCLOS

Out in the middle of the South China Sea, several islands now exist where none did before. What were once simple reefs and shoals are now full-fledged islands that host massive Chinese military bases, thanks to a government initiative that used thousands of tons of sand to achieve the goal. The Chinese government’s justification is that they own most of the South China Sea due to “historical claims” that only date back to 1942. It’s a clear violation of international maritime law –– but the United States, the country in the best position to challenge that violation, hasn’t even ratified the relevant international law.

In 1982, the U.N. created the United Nations Convention on the Law of the Sea (UNCLOS), which defines the boundaries of a country’s sea territory, establishes a tribunal for resolution of disputes between countries, and sets guidelines for deep sea mining in international waters. It has been broadly accepted as the standard “constitution of the sea” and has since been ratified by 162 countries and the European Union. The United States is not one of those countries.

The United States’ original argument for not joining the rest of the world in signing onto UNCLOS was that the convention violated U.S. sovereignty and gave too much power to Communist countries like the Soviet Union. But even after the end of the Cold War –– and even after the U.S. government made the Convention agree to broad changes in 1994 – the United States still refused to ratify the agreement. While President Reagan did accept most of the convention’s content as “customary international law,” the Senate consistently blocked actual ratification time and time again.

Yet, beyond protecting it from hypocrisy in the South China Sea, ratifying UNCLOS would bring substantial benefits to the United States. The agreement would resolve many territorial disputes with other countries, encourage investors to take advantage of resources on the high seas and deep seabed, and allow the Navy easier access to foreign waters. What’s more, acceding to the agreement could serve as a signal that, after refusing to ratify treaty after treaty on the international stage, the U.S. is willing to play by the rules, at least when it comes to the oceans.

The United States depends on the oceans for its survival. $700 billion worth of goods are shipped through U.S. ports each year, and its fishing industry generates an annual $200 billion in sales. The ocean is poised to become more and more vital to Americans and the world as international trade continues to increase. Additionally, advancing technology will soon enable greater use of resources on the ocean floor, meaning that the question of who owns the oceans will only get more important in the future.

The best way to answer that question is through a written and codified set of rules, with a system of arbitration courts and voting councils to amend those rules when necessary. For example, as climate change melts the Arctic, new frontiers of trade and investment in the Arctic are constantly opening up. Because of this, maritime disagreements between the U.S. and Russia seem likely. But without ratifying UNCLOS, the U.S. technically has no claim in the Arctic based on its continental shelf, meaning that other countries can dispute its actions and investors will be unlikely to risk their capital in the region. As the race for the Arctic gets underway, America will be left on the sidelines, with no voice in international debates and no ability to affect the resolutions of UNCLOS councils. It is issues such as this that caused the American Petroleum Institute and National Ocean Industries Association to support ratification of UNCLOS.

"As the race for the Arctic gets underway, America will be left on the sidelines, with no voice in international debates and no ability to affect the resolutions of UNCLOS councils."

Moreover, despite the Senate’s hesitance in ratifying UNCLOS, the U.S. Navy itself is in favor of the treaty. Various top naval officials openly support ratification, including Admiral Jonathan W. Greenert, Chief of Naval Operations, who testified to the House that “As the world’s preeminent maritime power, the United States would have much to gain from the legal certainty and global order brought by UNCLOS.” The Navy contends that its ability to navigate freely on missions and patrols would be protected if it could rely on UNCLOS provisions and expect other countries to follow suit. Right now, the Navy relies on customary international law, which is amorphous, unwritten, and subject to the whims of foreign countries. It also leaves room for edge cases –– for instance, are new unmanned underwater vehicles granted the same freedom of navigation as manned ships? Customary international law has nothing to say about that, and no system of courts to make a determination either way.

On the issue of the islands in the South China Sea, the Philippines chose to sue, arguing that China was claiming far more territory than either UNCLOS or customary law allotted it. This forced the Philippines to lose out on one of the world’s busiest shipping areas. An independent UNCLOS-established tribunal ruled in favor of the Philippines and against China in 2016, but the PRC, of course, refused to adhere to the ruling. The United States attempted to condemn this flouting of international law, but China wasted no time in calling the United States out on its hypocritical stance – pointing out that the United States isn’t even party to the tribunal’s Convention in the first place.

The United States would gain a much more powerful and stable standing on the international maritime stage by ratifying UNCLOS. But as long as the United States refuses to sign, it has no way to protect countries like the Philippines from the dangerous claims of unaccountable countries like China. Clearly, America’s role as the so-called “leader of the free world” is undermined by its consistent refusal to play by the rules. UNCLOS is just one of 42 international treaties that the U.S. Senate has left to languish in the archives.

One of the main arguments against accession to UNCLOS is that the United States might have to surrender sovereignty to the International Seabed Authority (ISA), which has oversight over deep seabed mining. Critics of the convention claim that the U.S. would open itself up to international lawsuits over environmental policy from the ISA. However, legal experts have concluded that UNCLOS doesn’t actually require the United States to adhere to any environmental laws or regulations other than its own.

Opponents also decry the royalties that deep seabed mining companies would have to pay to the ISA. But no royalties would be due for the first five years of mining under UNCLOS, and after that the royalty rate would gradually increase to a cap of 7%. As a result of these realities, almost every major U.S. company with a stake in the oceans supports accession to the treaty. One business holder even remarked that “It is better to have 93% of something than 100% of nothing.” Without the security that the ISA provides, investors are unwilling to support ventures into the deep seabed in the first place.

Whether the U.S. ratifies it or not, the U.N. Convention on the Law of the Sea will continue to serve as the world’s standard agreement when it comes to the complex business of determining maritime rights and responsibilities. By rejecting UNCLOS, the United States loses out on national security, oceanic trade, resource extraction, and its own values as defender of the rule of law. The current system of relying on customary agreements and pure military might to secure U.S. interests has not been working, and will only continue to worsen in the future. But this is far from a moot point –– President Trump has not yet taken a position on acceding to UNCLOS, and (if he values the military as much as he claims) he may yet decide to push it through Congress. After forcing the world to rewrite the rules of the sea in 1994, it’s time that the U.S. took responsibility and followed them.

Photo: “Naval Surface Warriors”

About the Author

Indigo Funk '22 is a Staff Writer for the US Section of the Brown Political Review. Indigo can be reached at indigo_funk@brown.edu

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