The United Nations Convention on the Law of the Seas (or UNCLOS) has been described as “the constitution of the oceans.” Originally finalized in 1982, UNCLOS’ 320 articles and nine annexes represent arguably the most holistic codification of international law in history. One hundred and fifty seven nations have signed on to the treaty and agreed to its wide-ranging provisions on topics such as coastal sovereignty, conservation and ocean resource management, and the freedom of the high seas. One thing, though, is missing from the Convention: the signature of the United States of America.
The United States faces critical issues that fall under the purview of UNCLOS, and its refusal to accede to the treaty undermines its ability to conduct foreign policy.
The Arctic and the South China Sea
America's relationship with UNCLOS is affecting two key issues in the Arctic Ocean and the South China Sea. The Arctic is strategically significant for several reasons. First, the United States has several refueling bases and missile stations located in the Arctic circle, impacting national security; second, Russia has claimed territory in the region on the basis of an extended continetal shelf, creating a geopolitical conflict over resource extraction. The United States has implicitly opposed these claims by emphasizing its desire to conduct business in the Arctic within the scope of international law.
Similarly, the South China Sea is fraught with national security and geopolitical issues for the United States. China claims vast swaths of territory in the South China Sea based on the historical precedence of the so-called “Nine-Dash Line,” which it has used for justification of expanding military assets and claims to key islands in the region over the course of recent decades. These claims are disputed internationally, including by the United States, which as recently as August of 2019 conducted operations in the region. Commander Ream Mommsen of the United States Navy’s Seventh Fleet explained that these exercises were intended “to challenge excessive maritime claims and preserve access to the waterways as governed by international law.”
The United States and UNCLOS
Both of these issues share a similar quality: the United States justifies its own actions and seeks to oppose those of Russia in the Arctic and China in the South China Sea on the grounds of international law. On the former issue, UNCLOS explicitly lays out the process and limitations of continental shelf territorial claims and resource extraction. On the latter, it lays out explicitly the process for claiming territory along the basis of islands and historical precedent.
However, the United States cannot claim Russia and China to be in violation of a treaty that it is not a party to. When UNCLOS was initially signed in 1982, the Reagan administration refused to accede based on disagreements regarding deep seabed mining. Despite revisions to the treaty in 1994, the Senate refused to hold hearings on the matter. Although Senator Richard Lugar of Indiana finally held hearings in 2004 and the Senate Foreign Relations Committee unanimously recommended adopting the treaty, no further action was taken by the Senate.
Opponents of ratification cite their main concern as not wanting to give up any of the United States’ sovereignty; Senators Rob Portman and Kelly Ayotte stated in a 2012 letter that “No international organization owns the seas.” This repeated inaction and bureaucratic slow-balling has left administration after administration in limbo. Thad Allen, co-chair of the Council on Foreign Relations’ Independent Task Force on the Arctic, describes how UNCLOS “is the redoubtable international regime for governing how nations interact with each other, how claims are made beyond the extent of the continental shelf, and how nations actually have a basis for legal claims, for boundary disputes, and so forth. There is no other document, treaty, or framework in place that does that.”
The United States is unable to have a voice, or at the very least its voice is significantly undermined, by not being a part of that process. The same is true of the South China Sea; Senator Ben Cardin (D-MD) argues that the United States’ failure to join UNCLOS provides justification to China for their flouting of international law in the South China Sea. In order to uphold international law, Cardin states that joining UNCLOS “would communicate that for the United States, resolution of maritime disputes in the South China Sea is not a question of being for or against any particular country or its claims, but rather for being on the side of international law, institutions and norms.”
The United States’ failure to join UNCLOS is representative of the broader foreign policy trend to reject multilateral engagement for unilateral interests. This is a poor precedent to set; as illustrated by the Arctic and the South China Sea, the United States could do far more for its interests and the world’s as a whole by embracing a more multilateral approach and acceding to the Convention.