“Up for Debate” is a project of the Center for Maritime Strategy geared towards driving thoughtful, energizing discussion about pressing issues facing the U.S. Sea Services and international maritime security. Our monthly series places two contrasting expert views into written conversation with each other about a timely issue of maritime significance. “Up for Debate” provides a platform for respectful and informed debate which can shape thinking about maritime strategy and security policy. The authors’ arguments are their own, not reflecting any institutional perspectives. In this edition, Mr. James Kraska, Charles H. Stockton Chair of International Maritime Law at the U.S. Naval War College, and Raul (Pete) Pedrozo, Howard S. Levie Chair on the Law of Armed Conflict at the U.S. Naval War College, debate the following issue: Should the U.S. ratify the United Nations Convention on the Law of the Sea?
Argument of James Kraska, Charles H. Stockton Chair of International Maritime Law, U.S. Naval War College
The United States is once again considering accession to the United Nations Convention on the Law of the Sea (“UNCLOS”). Joining the agreement would bring major benefits, advancing virtually every U.S. oceans interest. Because is sets forth the rules for operating throughout 71 percent of the planet, UNCLOS is the second most important treaty in existence after the Charter of the United Nations. The Charter is the constitution for the world; UNCLOS is the constitution for the oceans.
The treaty advances U.S. economic and military interests in a liberal order that protects freedom of navigation and overflight for commercial and naval vessels and aircraft. The principal U.S. and allied objective during the negotiations for the treaty were to secure the right of transit passage in international straits essential for U.S. ships, aircraft, and submarines to transit the world’s chokepoints. This generous navigational regime is the bedrock of U.S. force presence and maintenance of alliance commitments in Europe and East Asia, as well as the key to ensuring global trade. The importance of these fundamental interests to advancing American security and prosperity in the world cannot be overstated. And while the navigational regimes reflected in UNCLOS are generally accepted as customary international law, joining the treaty provides a compulsory legal mechanism for enforcing them.
UNCLOS secures major U.S. interests as a coastal state. The United States is blessed with an extensive coastline, the largest exclusive economic zone (“EEZ”) in the world, and a vast outer or extended continental shelf. The treaty would provide greater legal certainty over this enormous reservoir of natural resources. Within this area, the U.S. is entitled to exercise sovereign rights and jurisdiction over the living resources such as fish and non-living resources, such as oil and gas and some 50 hard minerals, including 16 valuable rare earth elements needed for making everything from military radar to artificial intelligence (“AI”). Although the U.S. has inherent rights to the resources on its continental shelf, joining UNCLOS ensures it has access to an expert international body created by UNCLOS called the Commission on the Limits of the Continental Shelf (“CLCS”) that can validate the outer extent of the American claims, which extend hundreds of miles beyond the EEZ in some areas. This process reduces the potential for other states to challenge the U.S. claim.
Furthermore, UNCLOS created another international organization – the International Seabed Authority (“ISA”) – to coordinate mineral extraction from deep seabed mining beyond coastal state continental shelves. The deep seabed comprises more than half of the ocean and it contains areas with extraordinarily high concentrations of strategic minerals and rare earth. China and some twenty other states are moving aggressively to stake exclusive legal claims at the ISA to lock up the wealth of the deep seabed to fuel economic growth in the coming decades. Just as the United States views the generous navigational regimes as reflective of customary international law, nearly the entire world accepts that deep seabed mining can only be lawfully done through the ISA. If U.S. companies act unliterally to exploit the mineral wealth of the deep seabed, they would do so without secure legal tenure and likely incur passionate objection from allies and adversaries alike.
The Law of the Sea Convention also provides an effective and evolving framework on numerous other U.S. oceans interests, such as submarine communication cables through which travels nearly all Internet traffic, protection of the marine environment, conservation of high seas fisheries, and the advancement of marine scientific research. The United States was one of the most influential negotiators at UNCLOS and it stands to benefit in a multitude of ways from joining the treaty.
Response of Raul (Pete) Pedrozo, Howard S. Levie Chair on the Law of Armed Conflict, U.S. Naval War College
For the past 40 years, the United States has wisely remained an outlier to the United Nations Convention on the Law of the Sea (“UNCLOS”). President Reagan was right not to sign the treaty, and it would be a grave mistake for the Biden administration to now advocate U.S. accession to the convention. Because the navigational provisions of the treaty reflect customary international law, U.S. ships already have access to the world’s oceans as a matter of right without subjecting the United States to potentially disastrous compulsory dispute settlement procedures and payment of assessed contributions for the sprawling UN bureaucracy created by the convention.
The convention was heralded as the “constitution for the oceans,” purportedly codifying customary norms and resolving outstanding disputes over interpretation of those norms. Given the growing number of States asserting excessive claims, the convention has failed miserably in this regard. Take, for example, the convention’s baseline rules. An objective and precise application of these rules would prevent excessive claims. Yet, the treaty’s straight baseline provisions are the most abused articles of the convention, illegally extending coastal state jurisdiction seaward in a manner that is detrimental to navigational rights and freedoms. The United States has rejected more than 50 of these excessive baseline claims. The treaty also recognizes the concept of historic waters but fails to provide guidance on the criteria needed to establish such claims. This ambiguity empowers revisionist States, like China and Russia, to exploit this gap and claim sovereignty over expansive areas of the sea where navigational rights and freedoms are precluded. These historic claims are also exempt from the compulsory dispute settlement provisions of the convention.
Of greater concern is the convention’s recognition of coastal state “residual rights” in the exclusive economic zone (“EEZ”). The ambiguity of this allows states, like China, to claim non-resource-related jurisdiction in the EEZ that is clearly unlawful, to include a right to restrict foreign military activities. Similarly, despite the clear language in the convention, the number of States that condition passage of warships on prior notice or consent has proliferated. Nearly 30 percent of the parties to the convention condition the right of innocent passage of foreign waters in their territorial sea.
Finally, the treaty establishes an elaborate compulsory dispute settlement mechanism to enhance compliance with its provisions. Nonetheless, even though decisions of a court or tribunal are intended to be final and binding on the parties to the dispute, the procedures lack an enforcement mechanism and are therefore of minimal value. Case in point: China’s refusal to comply with the decision of the tribunal in the South China Sea arbitration case with the Philippines was a serious blow to the rule of law.
The treaty also creates a new, sprawling UN bureaucracy to manage the world’s oceans. To date, these organizations have not paid their expected dividends. The ISA has been in existence for 40 years and is still working on codifying a mining code. There is also growing concern that deep seabed mining will wreak havoc to the marine environment. The Commission on the Limits of the Continental Shelf has a daunting task ahead of it. To date, it has received over 90 submissions from states, over 50 percent of which are still awaiting consideration. Moreover, the Commission may only make recommendations to states and has no authority to adjudicate overlapping claims, like the Russian, Canadian, and Denmark claims in the Arctic. This inability to resolve overlapping claims could lead to conflict between the states.
In short, the costs of joining the convention far outweigh any purported benefits that might inure to the United States by becoming a party to the treaty. The best guarantor of our navigational rights and freedoms is a strong U.S. Navy, not the treaty.
James Kraska is Charles H. Stockton Chair of International Maritime Law at the U.S. Naval War College.
Raul (Pete) Pedrozo is the Howard S. Levie Chair on the Law of Armed Conflict at the U.S. Naval War College.
The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.
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Center for Maritime Strategy
By James Kraska, Raul (Pete) Pedrozo
“Up for Debate” is a project of the Center for Maritime Strategy geared towards driving thoughtful, energizing discussion about pressing issues facing the U.S. Sea Services and international maritime security. Our monthly series places two contrasting expert views into written conversation with each other about a timely issue of maritime significance. “Up for Debate” provides a platform for respectful and informed debate which can shape thinking about maritime strategy and security policy. The authors’ arguments are their own, not reflecting any institutional perspectives. In this edition, Mr. James Kraska, Charles H. Stockton Chair of International Maritime Law at the U.S. Naval War College, and Raul (Pete) Pedrozo, Howard S. Levie Chair on the Law of Armed Conflict at the U.S. Naval War College, debate the following issue: Should the U.S. ratify the United Nations Convention on the Law of the Sea?
Argument of James Kraska, Charles H. Stockton Chair of International Maritime Law, U.S. Naval War College
The United States is once again considering accession to the United Nations Convention on the Law of the Sea (“UNCLOS”). Joining the agreement would bring major benefits, advancing virtually every U.S. oceans interest. Because is sets forth the rules for operating throughout 71 percent of the planet, UNCLOS is the second most important treaty in existence after the Charter of the United Nations. The Charter is the constitution for the world; UNCLOS is the constitution for the oceans.
The treaty advances U.S. economic and military interests in a liberal order that protects freedom of navigation and overflight for commercial and naval vessels and aircraft. The principal U.S. and allied objective during the negotiations for the treaty were to secure the right of transit passage in international straits essential for U.S. ships, aircraft, and submarines to transit the world’s chokepoints. This generous navigational regime is the bedrock of U.S. force presence and maintenance of alliance commitments in Europe and East Asia, as well as the key to ensuring global trade. The importance of these fundamental interests to advancing American security and prosperity in the world cannot be overstated. And while the navigational regimes reflected in UNCLOS are generally accepted as customary international law, joining the treaty provides a compulsory legal mechanism for enforcing them.
UNCLOS secures major U.S. interests as a coastal state. The United States is blessed with an extensive coastline, the largest exclusive economic zone (“EEZ”) in the world, and a vast outer or extended continental shelf. The treaty would provide greater legal certainty over this enormous reservoir of natural resources. Within this area, the U.S. is entitled to exercise sovereign rights and jurisdiction over the living resources such as fish and non-living resources, such as oil and gas and some 50 hard minerals, including 16 valuable rare earth elements needed for making everything from military radar to artificial intelligence (“AI”). Although the U.S. has inherent rights to the resources on its continental shelf, joining UNCLOS ensures it has access to an expert international body created by UNCLOS called the Commission on the Limits of the Continental Shelf (“CLCS”) that can validate the outer extent of the American claims, which extend hundreds of miles beyond the EEZ in some areas. This process reduces the potential for other states to challenge the U.S. claim.
Furthermore, UNCLOS created another international organization – the International Seabed Authority (“ISA”) – to coordinate mineral extraction from deep seabed mining beyond coastal state continental shelves. The deep seabed comprises more than half of the ocean and it contains areas with extraordinarily high concentrations of strategic minerals and rare earth. China and some twenty other states are moving aggressively to stake exclusive legal claims at the ISA to lock up the wealth of the deep seabed to fuel economic growth in the coming decades. Just as the United States views the generous navigational regimes as reflective of customary international law, nearly the entire world accepts that deep seabed mining can only be lawfully done through the ISA. If U.S. companies act unliterally to exploit the mineral wealth of the deep seabed, they would do so without secure legal tenure and likely incur passionate objection from allies and adversaries alike.
The Law of the Sea Convention also provides an effective and evolving framework on numerous other U.S. oceans interests, such as submarine communication cables through which travels nearly all Internet traffic, protection of the marine environment, conservation of high seas fisheries, and the advancement of marine scientific research. The United States was one of the most influential negotiators at UNCLOS and it stands to benefit in a multitude of ways from joining the treaty.
Response of Raul (Pete) Pedrozo, Howard S. Levie Chair on the Law of Armed Conflict, U.S. Naval War College
For the past 40 years, the United States has wisely remained an outlier to the United Nations Convention on the Law of the Sea (“UNCLOS”). President Reagan was right not to sign the treaty, and it would be a grave mistake for the Biden administration to now advocate U.S. accession to the convention. Because the navigational provisions of the treaty reflect customary international law, U.S. ships already have access to the world’s oceans as a matter of right without subjecting the United States to potentially disastrous compulsory dispute settlement procedures and payment of assessed contributions for the sprawling UN bureaucracy created by the convention.
The convention was heralded as the “constitution for the oceans,” purportedly codifying customary norms and resolving outstanding disputes over interpretation of those norms. Given the growing number of States asserting excessive claims, the convention has failed miserably in this regard. Take, for example, the convention’s baseline rules. An objective and precise application of these rules would prevent excessive claims. Yet, the treaty’s straight baseline provisions are the most abused articles of the convention, illegally extending coastal state jurisdiction seaward in a manner that is detrimental to navigational rights and freedoms. The United States has rejected more than 50 of these excessive baseline claims. The treaty also recognizes the concept of historic waters but fails to provide guidance on the criteria needed to establish such claims. This ambiguity empowers revisionist States, like China and Russia, to exploit this gap and claim sovereignty over expansive areas of the sea where navigational rights and freedoms are precluded. These historic claims are also exempt from the compulsory dispute settlement provisions of the convention.
Of greater concern is the convention’s recognition of coastal state “residual rights” in the exclusive economic zone (“EEZ”). The ambiguity of this allows states, like China, to claim non-resource-related jurisdiction in the EEZ that is clearly unlawful, to include a right to restrict foreign military activities. Similarly, despite the clear language in the convention, the number of States that condition passage of warships on prior notice or consent has proliferated. Nearly 30 percent of the parties to the convention condition the right of innocent passage of foreign waters in their territorial sea.
Finally, the treaty establishes an elaborate compulsory dispute settlement mechanism to enhance compliance with its provisions. Nonetheless, even though decisions of a court or tribunal are intended to be final and binding on the parties to the dispute, the procedures lack an enforcement mechanism and are therefore of minimal value. Case in point: China’s refusal to comply with the decision of the tribunal in the South China Sea arbitration case with the Philippines was a serious blow to the rule of law.
The treaty also creates a new, sprawling UN bureaucracy to manage the world’s oceans. To date, these organizations have not paid their expected dividends. The ISA has been in existence for 40 years and is still working on codifying a mining code. There is also growing concern that deep seabed mining will wreak havoc to the marine environment. The Commission on the Limits of the Continental Shelf has a daunting task ahead of it. To date, it has received over 90 submissions from states, over 50 percent of which are still awaiting consideration. Moreover, the Commission may only make recommendations to states and has no authority to adjudicate overlapping claims, like the Russian, Canadian, and Denmark claims in the Arctic. This inability to resolve overlapping claims could lead to conflict between the states.
In short, the costs of joining the convention far outweigh any purported benefits that might inure to the United States by becoming a party to the treaty. The best guarantor of our navigational rights and freedoms is a strong U.S. Navy, not the treaty.
James Kraska is Charles H. Stockton Chair of International Maritime Law at the U.S. Naval War College.
Raul (Pete) Pedrozo is the Howard S. Levie Chair on the Law of Armed Conflict at the U.S. Naval War College.
The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.