Why the U.S. Should Ratify the Law of the Sea Treaty

| Bonnie S. Glaser
Bonnie S. Glaser
Director of the China Power Project, CSIS

Although the United States participated in the negotiations that culminated in the United Nations Convention on the Law of the Sea (UNCLOS), which came into force in 1994, it has not yet ratified the treaty. While it is true that the U.S. recognizes UNCLOS as a codification of customary international law, failure to become a signatory to the Treaty is increasingly harmful to American political, military, and economic interests.

UNCLOS provides a legal framework for governing navigation on the sea and use of ocean resources. With the largest Exclusive Economic Zone (EEZ) in the world that contains 3.4 million square nautical miles of ocean, the United States can reap advantages by becoming a signatory. Joining the Convention would enable the U.S. to safeguard its claim to an extended continental shelf (ECS) of over one million square kilometers—an area approximately twice the size of California. International recognition of both its EEZ and ECS would secure U.S. sovereign rights to fishing, mineral, and hydrocarbon resources in those waters. It would also provide legal protection to American companies that seek to invest in deep seabed mining, telecommunications operations, and commercial shipping lanes in the Arctic.

By joining the Convention, the U.S. will be better positioned to respond to Russian efforts to exert influence over the new passage that is opening in the Arctic as the ice melts, which will provide a maritime trade route that shortens transit to Asia by over 30 days. Assuming a seat at the UNCLOS table will allow the U.S. to have a voice in establishing ground rules for how the Arctic Ocean will be governed.

Ratification benefits the United States militarily as well. The U.S. Navy has long supported and adhered to the treaty, because it preserves navigation and overflight rights and high seas freedoms for its fleet, which remains the largest in the world. UNCLOS grants the right of innocent passage for all vessels on the high seas, including within other countries’ 12nm territorial sea. The U.S. Freedom of Navigation (FON) program that asserts navigation and overflight rights and freedoms globally, including in the South China Sea, can gain further legitimacy and support if the United States is an UNCLOS signatory.

Joining the treaty would enable the United States to participate in dispute resolution mechanisms, including an arbitral tribunal under UNCLOS like the one formed to rule on the Philippines’ case against China’s nine-dash line claim.The U.S. request to send a delegation to observe the hearing in that case at The Hague was denied because it is not a party to the Convention. As a party to UNCLOS, the U.S. would be able to nominate members to the Law of the Sea Tribunal and the Continental shelf Commission, both of which provide a platform to defend territorial claims and discuss freedom of navigation. The Obama administration has rightfully emphasized the importance of establishing a rules-based international order and shaping norms for managing and resolving territorial disputes. Since treaty provisions can become customary law, the U.S. cannot watch from the sidelines while precedents are established that will affect American interests.

Ratifying UNCLOS would bolster American moral authority and legitimacy on international maritime issues at an important time. Doing so would eliminate one of Beijing’s justifications for rejecting the July 12 international Arbitral Tribunal ruling against China’s claims in the South China Sea—that the U.S. is hypocritical since it is not a party to the treaty. Frankly, it also confounds America’s allies that the U.S. calls for all nations to uphold the values, principles, and rules-based order that has produced security, stability, and prosperity for all, but refuses to ratify UNCLOS. The Commander of the U.S. Pacific Command, Adm. Harry Harris, noted the cost to America’s reputation in a House Armed Services Committee hearing last February: “I think that in the 21st century our moral standing is affected by the fact that we are not a signatory to UNCLOS.”

Becoming a treaty member would help advance U.S. interests in promoting multilateral cooperation on a range of issues globally. For example, it would aid in building coalition partnerships in the Global War on Terrorism and the Proliferation Security Initiative, and help support multinational efforts to combat piracy.

Introducing their bipartisan resolution (H. Res. 631) last March, Congressman Joe Courtney (D-CT) and Congressman Don Young (R-AK), rightly stated: “As our country continues to challenge excessive maritime claims in the South China Sea, or jockey for standing in the increasingly competitive Arctic region, we risk being left on the sidelines during these important negotiations unless we are a party to this agreement.”

Arguments against the United States becoming a party to UNCLOS are not persuasive given the evident and rising costs of remaining outside the treaty. Reservations based on the deep seabed mining regime, which was the basis for President Ronald Reagan’s rejection of the treaty in 1982, were addressed by the 1994 revisions made to UNCLOS during the Clinton Administration. Other objections are based on concerns that ratification would expose the U.S. to broad liability for environmental damage in international courts; obligate the U.S. to transfer technology; require the U.S. to transfer royalties to the International Seabed Authority and give the United Nations the ability to impose taxes on U.S. citizens; and damage U.S. national security by restricting the ability of the U.S. to conduct activities such as maritime interdiction operations and gathering maritime intelligence.

Treaties by their very nature impose some constraints as part of the process of establishing international norms and rules. Presidents Bill Clinton, George W. Bush, and Barack Obama backed the treaty and urged Senate ratification, to no avail. Supporters of UNCLOS ratification include a broad American constituency composed of the U.S. military as well as actors in the energy, shipping, fishing, shipbuilding, and communication industries, as well as environmental groups. The clear benefits of becoming a party to the treaty outweigh the potential costs. It’s well past time to leave the small group of countries that refuse to join treaty, which includes North Korea, Iran, Syria, Libya, and Venezuela, and side with the 167 countries that are UNCLOS state parties.

The Author is Bonnie S. Glaser

Bonnie S. Glaser is a senior advisor for Asia and the director of the China Power Project at CSIS, where she works on issues related to Chinese foreign and security policy. She is concomitantly a non-resident fellow with the Lowy Institute in Sydney, a senior associate with CSIS Pacific Forum and a consultant for the U.S. government on East Asia.

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