THE US AND UNCLOS NEGOTIATIONS, 1973-1982
The Third UN Conference on the Law of the Sea (Conference) began in 1973 and ended with the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) on 12 December 1982. The administration of U.S. Republican President Richard Nixon was a principal initiator of the Third Conference. The U.S. maintained a bipartisan approach and actively participated in conferences throughout the presidencies of Richard Nixon (Republican, 1969-74), Gerald Ford (Republican, 1974-1977) and Jimmy Carter (Democratic, 1977-81). However, the situation changed with the election of Republican President Ronald Reagan in 1980. Reagan replaced the U.S. negotiating team and called for a review of the provisions in Section IX on Deep Sea Mining. [1]
The US and Part IX on Deep Sea Mining
The Reagan administration called for fundamental changes to Part IX of deep -sea mining because it believed that the statute was inconsistent with its views on the role of private companies that fit in deep -sea mining. However, the Conference was not willing to acceded to what many countries perceived as American “last-minute” demands for major changes to a section of the draft convention indicating that from this outset it was agreed that the entire convention would be discussed as a “package deal”. The Conference decided to proceed with the formal adoption of the UNCLOS text on 10 December 1982.
UNCLOS opened for signature on the same day the text was adopted. President Reagan announced that the U.S. would not sign UNCLOS because of its provisions on deep -sea mining. However, in 1983, President Reagan issued a Policy Statement stating that the U. To see also : The U.S. delegation has been unable to secure the release of Americans arrested in Venezuela.S. would accept and implement in accordance with UNCLOS provisions relating to traditional uses of the oceans, but not to the provisions of Section IX on the deep sea floor. Reagan stated that the U.S. will exercise and assert its rights and freedoms of navigation and overflight around the world in a manner consistent with the balance of interests seen in UNCLOS. He also declared the US Exclusive Economic Zone (EEZ) within 200 nautical miles of the coast in accordance with UNCLOS. [2]
1994 Implementation Agreement on Deep Sea Mining
UNCLOS provides that it will be enforced 12 months after the deposit of the ratification instrument or accession to the Sixties with the UN Secretary -General. Potential problems arise because almost all countries that ratified or accessed UNCLOS from 1982 to 1990 were developing countries. Most Western industrialized countries support the U. Read also : Review of Chinese Words for ‘America’ Over Time.S. objection to Part XI on the deep sea floor and refuse to be a party to UNCLOS. This raises the prospect that the goal of establishing a universally accepted legal regime for all ocean uses cannot be realized.
As a result, UN Secretary -General Pérez de Cuéllar established an informal group of experts in the early 1990s to review the provisions in Part XI to determine whether they could solve the problems of the U.S. and other Western industrialized countries. Everyone sees the need for a universally accepted set of rules for the oceans. Administration of President George H.W. Bush (1989-93) participated in the discussion, which continued under the government of President Bill Clinton (1993-2001).
The result of the negotiations was the 1994 Implementation Agreement on Part XI which actually changed the provisions in Part XI of UNCLOS on deep -sea mining to address the issues that had already been addressed by the Reagan administration. Other Western industrialized countries then began to ratify UNCLOS. It came into force on 17 November 1994 and is now universally accepted by 168 Parties including the European Union. The only major power that is not a party to UNCLOS is the United States.
Because the United States has not yet acceded to UNCLOS, its citizenship cannot serve the institutions established under UNCLOS, including the International Tribunal for the Law of the Sea, the International Seabed Authority and the Commission on the Limitation of Continental Lands. In addition, the U.S. cannot bid for deep -sea mining sites from the International Submarine Authority. Furthermore, as a non-party to UNCLOS, the U.S. does not have access to the dispute resolution system at UNCLOS. [3]
WHY THE US FAILED TO BECOME A PARTY TO UNCLOS
Given that U.S. concerns about deep -sea mining were addressed by the 1994 Implementation Agreement, many observers are confused about why America is not a party to UNCLOS, despite the U. To see also : Boris Johnson defies calls to resign in the midst of mass exodus from his government.S. position that UNCLOS “for the most part” reflects customary international law. [4]
According to the U.S. Constitution, Article II, Part 2, the President has the power to enter into treaties “with the advice and permission of the U.S. Senate, provided two -thirds of the senators present agree”. Simply stated, the availability of the U.S. Constitution and U.S. Senate rules allows a small group of right -wing senators to block U.S. access to UNCLOS.
In November 1994, after the 1994 Implementation Agreement amending Part XI of the deep seabed to solve the Reagan administration’s problems, President Bill Clinton sent UNCLOS to the U.S. Senate for approval. However, Conservative Senator Jesse Helms, Chairman of the Committee on Foreign Relations, even refused to hold a hearing on the Convention. [5]
Support for the Convention and Subsequent Attempts to Obtain Senate Approval
The US position on UNCLOS is even more confusing when one considers the fact that there is overwhelming support for the US accession to UNCLOS by all government agencies and all major interest groups in America. These include the Ministry of Defense and the Ministry of Foreign Affairs, as well as almost all industries with commercial interests in the ocean, including the shipping industry, deep sea mining industry, fishing industry, oil and gas industry and submarine cable industry. Leading marine scientists and environmental organizations in the U.S. also chose to be the party.
Two further attempts to obtain permission from the U.S. Senate were made during the administration of Republican President George W. Bush. In 2004, the Senate Foreign Relations Committee held hearings on the issue and unanimously recommended that the Senate give advice and permission for accession. However, procedural moves made by conservative senators prevented the issue from being sent to the Senate for a full vote. [6] In 2007, President Bush again urged the Senate to allow the United States to become a UNCLOS party. [7] The Senate Foreign Relations Committee held a hearing and voted 17-4 to support the United States to be the party. However, opponents of UNCLOS prevented a full Senate vote from taking place.
The main argument put forward by opponents of UNCLOS is that if the US becomes a party, it will hand over part of its sovereignty to international organizations. Their argument is governed by the Heritage Foundation, a conservative think tank that has led the drive to prevent the U.S. from becoming a party. [8] Leading U.S. experts on maritime law have disputed the Heritage Foundation’s arguments and explained in detail the reasons why it was in the national interest of the United States to be a party, but to no avail. [9] For a summary of the arguments and statements of leading experts on both sides of the debate, see UNCLOS Debate, a web site dedicated to that issue. [10]
The most recent attempt to get U.S. Senate approval was in 2012, under the government of Democratic President Barack Obama. A series of hearings were held at UNCLOS to gain the perspectives of the U.S. business community and the U.S. military, with a special focus on UNCLOS and U.S. national security interests. All sectors support UNCLOS. However, once again, UNCLOS was not referred to the full Senate for voting. [11]
The increased political polarization in the US makes it likely that it will be a UNCLOS party in the future. Despite the fact that President Joe Biden was a member of the Senate Foreign Relations Committee for many years and fully understood the importance of UNCLOS to the U.S., he was realistic enough to know that the opportunity to receive approval by two-thirds of the vote. in the U.S. Senate practically nothing.
THE PRACTICES OF THE US ON LAW OF THE SEA ISSUES
Although it is not a UNCLOS party, the U.S. Department of State carefully examines the extent to which the practices of countries that become UNCLOS parties are consistent with their obligations under UNCLOS.
Limits in the Seas
Since 1970, the U.S. Department of State has conducted studies and published reports examining maritime claims and borders of other countries, including an assessment of whether in the U.S. opinion, the claims and borders were consistent with international law. Prior to the adoption of UNCLOS, most studies were about maritime boundaries and the use of straight baselines. Because the rules on the straight baseline are the same in UNCLOS and in the 1958 Geneva Convention on Territorial Seas and Contiguous Zones, initial studies of straight baselines remain relevant. After UNCLOS was strengthened, the U.S. study expanded to include maritime claims based on the archipelago baseline.
The U.S. State Department has conducted a study in the Limits in the Seas series on whether China’s maritime claims in the South China Sea are consistent with UNCLOS. In December 2014, when the Philippine case against China was taking place, the US issued the Border at Sea No. 143 of the Chinese Maritime Claims in the South China Sea. [12] After the Arbitration Tribunal’s decision in the South China Sea case in 2016, the Chinese statement seems to indicate that it bases its maritime claims from a straight baseline around four “island groups” that claim sovereignty in the South China Sea. In response, in January 2022, the US issued Limits on Sea No. 150 on the Chinese Maritime Claims in the South China Sea. [13]
The US can justify its study of Chinese maritime claims in the South China Sea because there is a strong argument that Chinese claims limit the right of passage and freedom of the upper sea in a way that is inconsistent with UNCLOS. However, some would argue that U.S. studies are a form of “lawfare” that is part of rising competition between existing superpowers and rising superpowers.
On a more general level, critics may also ask whether a country that is not a party to UNCLOS should appoint itself as a judge to determine whether the practice of a country that is a party complies with UNCLOS. U.S. justification for his actions is in the Freedom of Navigation Program.
US Freedom of Navigation Program and US Responses to Excessive Maritime Claims
The U.S. Freedom of Navigation Program (FON) was established in 1979 by the Carter administration to highlight navigational certainty in a draft convention to provide greater recognition of U.S. national interests in protecting maritime rights and maritime freedoms. The basic policy of the program is to ensure that the normal activities of the U.S. Navy do not operate in a manner that can be construed as compliance with claims that are inconsistent with international law and therefore not recognized by the U.S. [14]
On March 9, 1992, the US issued Limits in the Seas No. 112 entitled United States Responses to Excesive National Maritime Claims. [15] This study focuses on the U.S. Freedom Navigation Program. The U.S. position on excessive maritime claims was later published in a book authored by two State Department officials, Captain J. Ashley Roach and Robert Smith under the title Excessive Maritime Claims. The first edition was published in 1994. The fourth by J. Ashley Roach and published in 2021. [16]
Under the FON program, the U.S. began to take diplomatic action on what it considered excessive maritime claims. [17] This can involve bilateral consultations or formal diplomatic protests. If diplomatic efforts are not successful, the U.S. can undertake operational challenges to assert the rights and freedoms guaranteed by international law as enshrined in UNCLOS. These operations are known as Freedom of Navigation Operations (FONOPs).
One problem with FONOPs is that the U.S. government often fails to make it clear to the international and local media what they are doing and why they are doing it. As a result, it is sometimes seen by observers that the U.S. is only asserting its naval power in ways that increase tensions and cause the risk of military conflict.
U.S. policies on freedom of navigation and overflight codified in 2018 under the Trump administration are as follows:
(a) Policy Declaration: It is the policy of the United States to fly, sail, and operate throughout the oceans, seas, and airspace of the world wherever international law allows.
(b) Policy Implementation: In implementing the policies described above, the Secretary of Defense shall:
(i) plan and conduct a strong series of regular and routine air and naval missions around the world and throughout the year, including critical transportation corridors and key routes for global trade;
(ii) execute the routine and routine air and maritime freedom of navigation operations throughout the year, in accordance with international law, including, but not limited to, maneuvers beyond plain passage, and;
(iii) to the maximum practical extent, carry out this mission with regional partner countries and allies of the United States. [18]
Since 2018, the U.S. has been more active in implementing a strong FONOP program to challenge what the United States believes to be an excessive maritime claim by China of the disputed islands in the South China Sea. These include China’s use of a straight baseline around the Paracel Islands, claims about territorial seas of tidal and submerged features, and the requirement that ships exercising plain crossing rights in territorial seas seek authorization for such routes. The U.S. position is that if it does not implement an operational challenge to China’s excessive maritime claims, it will appear to have complied with the legality of those claims. The intensification of these FONOPs has increased tensions between the U.S. and China and has become a concern in some regional countries – that an incident can trigger a response that can be out of control.
FONOPS focuses on excessive maritime claims that illegally limit the rights and freedoms of U.S. naval vessels. This operation, however, does not challenge China’s excessive maritime claims to natural resources in the South China Sea – a far more important concern of many countries. ASEAN member states that border the South China Sea assert that under UNCLOS they have sovereign rights and jurisdiction to explore and utilize natural resources, both fisheries and hydrocarbons, within 200 nautical miles of EEZ measured from the baseline along their mainland coast or from their archipelago . baseline. They asserted that China’s claims to “historic rights” in the nine lines, and China’s claims to the EEZ of four “island groups” in the South China Sea, are inconsistent with UNCLOS and its prejudices of sovereignty and jurisdiction to explore and utilize natural resources in the zone. their exclusive economy.
The U.S. also strives to exercise freedom of navigation operations with its regional partner countries and allies. However, because FONOPS goes so far as to challenge excessive maritime claims that limit naval rights and freedoms, and not to challenge unauthorized claims to natural resources, ASEAN member states are reluctant to participate or even generally support US FONOP in the South China Sea. . Some may even regard the “strong” FONOP series as an action that could increase tensions in the region and increase the risk of conflict between the U.S. and China. As such, these operations cannot enhance American prestige.
Hopefully, the day will come when the U.S. Senate realizes that it is in the national interest of the country to accompany UNCLOS. This would enhance the U.S. reputation as a promoter of rule-based legal order for the oceans and give it an additional tool to challenge what it believes excessive maritime claims: the mandatory binding dispute settlement system at UNCLOS.
* About the author: Robert Beckman is Professor Emeritus in the Faculty of Law and Head of the Ocean Law and Policy Program of the International Law Center, National University of Singapore (NUS). The authors thank Ms. Teo Jian Ling, Student Research Assistant, for her research assistance.
Source: This paper was published in ISEAS Perspectives 2022/73
[1] “Law of the Sea Convention”, United States Department of State, https://www.state.gov/law-of-the-sea-convention/.
[2] “Statement of United States Maritime Policy”, Ronald Reagan Library and Museum of the President, https://www.reaganlibrary.gov/archives/speech/statement-united-states-oceans-policy.
[3] Marjorie A Browne, “The Law of the Sea Convention and U.S. Policy”, Congressional Research Service Brief for Congress (10 February 2005), https://sgp.fas.org/crs/row/IB95010.pdf.
[4] “Speech at the Commemoration of the UN General Assembly on the 40th Anniversary of the Opening for Signature of the 1982 Law of the Sea Convention”, United States Mission to the United Nations, April 29, 2022, https: //usun.usmission. gov/ statement-at-a-general-assembly-reminder-of-the-40-year-of-open-for-signature-of-the-1982-law-of-the-sea-convention/.
[5] John A Duff, “United States and the Law of the Sea Convention: Sliding Back from Accession and Ratification”, Oceans & amp; Coastal LJ 11 (2005), https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1297&context=oclj.
[6] Marjorie A Browne, “The UN Law of the Sea Convention and the United States: Developments Since October 2003”, Congressional Research Service Report for Congress (14 June 2007), https://apps.dtic.mil/sti/ pdfs/ADA471150.pdf.
[7] Robert Beckman, “Bush’s Decision for Access to UNCLOS Why It’s Important for Asia”, RSIS Comment 22, no. 42 (22 May 2007), https://www.rsis.edu.sg/rsis-publication/ idss/925-bushs-decision-to-accede-ka/? doing_wp_cron = 1653734955.2094221115112304687500 # .Yp2WshpBxyx.
[8] See Steven Groves, “U.S. Access to the UN Convention on the Law of the Sea Not Required for the Development of Oil and Gas Resources”, The Heritage Foundation, May 14, 2012, https://www.heritage.org/report/us-accession- un-convention-the-law -the-sea-unnecessary-development-of-oil-and-gas-resources; Steven Groves, “The Law of the Sea: Costs of U.S. Accession to UNCLOS”, The Heritage Foundation, 14 June 2012, https://www.heritage.org/testimony/the-law-the-sea-costs-us- accession-unclos.
[9] See John E. Noyes, “UNCLOS and the Continental Shelf: A Response to Steven Groves”, Opinio Juris, June 21, 2012, http://opiniojuris.org/2012/06/21/unclos-and-the- continental-shelf-a-response-to-steven-groves/; John Norton Moore and William L Schachte Jr., “The Senate Should Give Immediate Advice and Permission to the UN Convention on the Law of the Sea: Why Criticism Is Wrong”, Journal of International Affairs 59, no. 1 (2005), http: //www.jstor.org/stable/24358230; David D. Caron and Harry N. Scheiber, “United States and the 1982 Law of the Sea Treaty | RESULTS”, The American Society of International Law 11, no. 16 (11 June 2007), https://www.asil.org/insights/volume/11/issue/16/united-states-and-1982-law- maritime treaty.
[10] UNCLOSdebate.org is a web site dedicated to debating whether the U.S. should ratify UNCLOS through tools such as structured wikis. It contains more than 1300 citations and 200 citations for arguments about the issue. Statements and writings by authors are organized under “Resources – Authors”. For arguments for accession by the U.S., see James Kraska’s statement; John B. Bellinger; Richard Lugar; John Norton Moore; and Bernard H. Oxman. For arguments against US accession see the statements of Frank Gaffney and Steven Groves.
[11] “United States Senate Committee on Foreign Relations”, United States Senate Committee on Foreign Relations, https://www.foreign.senate.gov/treaties/103-39.
[12] Kevin Baumert and Brian Melchior, “Boundaries at Sea: Chinese Maritime Claims in the South China Sea”, U.S. Department: Bureau of Oceans and Environmental Affairs and International Science, no. 143 (2014), https: // www.state.gov/wp-content/uploads/2019/10/LIS-143.pdf.
[13] Kevin Baumert, Amy Stern, and Amanda Williams, “Boundaries at Sea: The People’s Republic of China: Maritime Claims in the South China Sea”, U.S. Department: Bureau of Oceans and Environmental Affairs and International Science, no. 150 (2022), https://www.state.gov/wp-content/uploads/2022/01/LIS150-SCS.pdf.
[14] Bernard H Oxman, “The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979)”, American Journal of International Law 74, no. 1 (1980), https://repository.law. miami.edu/cgi/viewcontent.cgi?article=1408&context=fac_articles.
[15] Robert W. Smith and J. Ashley Roach, “Boundaries at Sea: The United States Response to Excessive Maritime Claims”, U.S. Department: Bureau of Oceans and Environmental Affairs and International Science, no. 112 (1992), https http://www.state.gov/wp-content/uploads/2019/12/LIS-112.pdf.
[16] J. Ashley Roach, Maritime Excess Claims: Fourth Edition, Publication on Ocean Development (Brill, 2021), https://brill.com/view/title/59191?language=en.
[17] Ibid. Chapter 1 describes the background of FONOPS and details the U.S. position on several maritime claims based on the issue.
