Will the USA really ratify the UN Convention for the Law of the Sea (UNCLOS)? This question has preoccupied much of the law-related public debate in the USA during the recent days. After the Senate Foreign Relations Committee (SFRC) on Wednesday last week (31 October) voted 17 to 4 in support of recommending the Senate to accede to the UNCLOS, the issue seems to have caught the interest of the various presidential candidates as well. Apparently, all republican candidates have now spoken out against the UNCLOS. Initially, only Mike Huckabee was against the ratification of the treaty, calling it “one of the defining issues of our time”. But now all republican candidates have made it clear that they do not support the treaty, calling it a threat to US sovereignty and fundamentally flawed (for a summary see this article in the NY-Times).
This stance is somewhat interesting considering that the Bush administration (read President Bush’s endorsement of the UNCLOS here), the US military (especially of course the Navy), NGOs and the industry (in particular the oil and gas companies) have expressed support of the UNCLOS.
At least one of the republican candidates, namely John McCain, expressed the possibility of supporting the ratification of the treaty in the near future: “I think that we need a Law of the Sea. (…) I think it’s important, but I have not frankly looked too carefully at the latest situation as it is, but it would be nice if we had some of the provisions in it. But I do worry a lot about American sovereignty aspects of it, so I would probably vote against it in its present form.” Considering that Senator McCain did support the UNCLOS in the past (see his statement in the SFRC hearing in 2003) his – as well as other candidates’ – current stance against the UNCLOS may simply be seen as a means to raise support for his candidacy, i.e. as a position motivated by domestic politics only. Unfortunately I did not check on the position of the democratic presidential candidates. However, since at least Barack Obama is a member of the SFRC himself, it is highly unlikely that any significant criticism of the UNCLOS will be found in the Democratic Party. Next stop then – the US Senate!
For more information take a look at the website of the Rule of Law Committee for the Oceans.
Playing devil’s advocate, does it really make a difference whether or not the US becomes a party to UNCLOS? As far as the substantive rules are concerned, the US accepted much of the Convention as a statement of customary international law back in 1983 – see [1983] 77 AJIL 619. Indeed, through its Freedom of Navigation programme, the US actively asserts the freedoms provided for in the Convention – see e.g. http://www.defenselink.mil/policy/sections/policy_offices/gsa/fon_fy00-03.html Of course, the US famously objected to the provisions on deep seabed mining but it subsequently participated in the negotiation of the Part XI Agreement which was concluded in 1994, radically revising the deep seabed regime. It is true that the US cannot become a Member of the International Seabed Authority until they accept the Convention, but they already actively participate in the work of the Authority as an observer … more so than many Members!! Perhaps the principal sticking point for the US is that accession to UNCLOS would entail the acceptance of the dispute settlement provisions in Part XV of the Convention. As we all know, the US is shy when it comes to international courts and tribunals… is this concern alone sufficient to keep the US out of the Convention?
I guess there are indeed some hurdles that would argue for the US keeping out of the Convention. Eg the fact that the US would be responsible for appr. 25 percent of the budget of the Int. Seabed Authority while (probably) not having an equivalent right to say in matters before the Authority (just like in the UN). Furthermore the Authority might represent an uncontrollable financial transfer to developing States. The provisions on the settlement of disputes in Part XV of the Convention are likely to add to this overall perception of the UNCLOS. The question is, however, if these reasons really overweigh towards not becoming a party to the Convention. Probably not since these (and other) obstacles contained in the UNCLOS are no different than what can be found in post multilateral treaties.
Notwithstanding the above mentioned, here’s a reason for why the US should indeed become a party as soon as possible. At the end of 2008 the term of several judges at the ITLOS will come to an end. Since only State Parties to the UNCLOS are able to nominate new members of the tribunal, perhaps it is in the interest of the US to become a party after all. Because if much of the contents of UNCLOS is customary international law – as is often claimed – then why not try to influence the system as much as possible?