DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY
(SESSION 2018-2019)

U.S. INTERESTS AND UNCLOS

UNDER SUPERVISION OF SUBMITTED BY:

DR. MANWENDRA KUMAR TIWARI ADVAIT VIKRAM SINGH
ASSISTANT PROFESSOR (LAW) 170101007
RMLNLU IVTH SEMESTER
B.A.L.L.B(Hons.)
ACKNOWLEDGEMENT
I owe a great sense of gratitude to everyone who helped and supported me during my
research.
Mere words will never be enough to offer my deep sense of gratitude towards my Professor
for his precious time and guidance.
With his great enthusiasm to teach, profess, and his inspiring nature along with his successful
efforts to teach and explain clearly and easily, with no limitation bounds while explaining the
area of subject.
He also provided necessary guidance whenever needed with innovative ideas and morale
boosts.
I would also like thank all the staff of Dr. Madhu Limaye Library who made it easier for me
to browse through all content easily and efficiently.
Despite of my all efforts some mistakes and discrepancies might have crept in.
I am sure humble Professor will overlook them and forgive
INTRODUCTION
The Convention on the Law of the Sea is sometimes called a “constitution” for the oceans.
Among its many provisions, the Convention limits coastal nations to a 12-mile territorial sea,
establishes 200-mile exclusive economic zones, requires nations to work together to conserve
high seas fisheries, and establishes a legal regime for the creation of property rights in minerals
found beneath the deep ocean floor.

Historically, rules concerning use of the oceans were established by customary international
law—a term used to describe practices considered legally required by most nations from time
to time. The uncertainties inherent in such an approach led, in 1958, to the adoption of four
conventions on oceans governance. The conventions were promptly ratified by the United
States and many other countries, but soon came to be seen as insufficient. In particular, during
the 1960s, the United States became increasingly concerned about the growing number of
coastal states asserting control over vast reaches of the oceans. New issues—including marine
pollution—gained greater prominence. In 1973, negotiations were launched for a
comprehensive Convention on the Law of the Sea.

The Convention was adopted in 1982. Its provisions reflected longstanding U.S. negotiating
objectives, including recognition of navigational and overflight freedoms, limits on coastal
state jurisdiction to a 12-mile territorial sea, the establishment of 200-mile exclusive economic
zones, and rights to the ocean floor to the edge of the continental shelf. However, the agreement
also contained provisions on deep seabed mining at odds with U.S. interests, including
requirements for the mandatory transfer of technologies.
President Reagan praised the Convention’s “many positive and very significant
accomplishments,” but declined to sign because of the deep seabed mining provisions. In
March 1983, President Reagan issued an Ocean Policy Statement announcing the United
States’ intention to act generally in accordance with the terms of the Convention.

Further negotiations over the Convention’s deep seabed mining provisions were launched in
1990. These talks concluded in 1994 with a new agreement on deep seabed mining that
addressed all of the concerns that the Reagan administration had identified a decade earlier.
Also, in 1994, the Convention entered into force after the sixtieth nation joined.
In October 1994, the Convention was transmitted to the Senate for approval. Sen. Jesse Helms
(R-N.C.), then-chairman of the Senate Foreign Relations Committee, declined to hold hearings.
After Helms retired in January 2003, Sen. Richard Lugar (R-Ind.), the new chair of Foreign
Relations, held two hearings on the treaty. On February 25, 2004, the Senate Foreign Relations
Committee unanimously recommended that the United States join the Convention.

US and UNCLOS legitimacy

There are some who argue that UNCLOS is increasingly deteriorating. For example,
Sanadalow1 writes:

“Second, by staying outside the Convention, the United States increases the risk of
backsliding by nations that have put aside excessive maritime claims from years past.
Pressures from coastal states to expand their maritime jurisdiction will not disappear in
the years ahead—indeed such pressures will likely grow. Incremental unravelling of
many gains under the Convention is more likely if the world’s leading maritime power
remains a non-party. For these reasons and others, General Richard B. Myers, Chairman
of the Joint Chiefs of Staff, recently called ratification of the treaty by the United States
“a top national security priority.” Admiral Vern Clark, Chief of Naval Operations,
reiterated the Navy’s longstanding support for U.S. ratification, explaining that “by
joining the Convention, we further ensure the freedom to get to the fight, twenty-four
hours a day and seven days a week, with- out a permission slip.” Some columnists and
think tank analysts have argued that U.S. accession to the Convention is unnecessary
because excessive maritime claims can be addressed by invoking customary
international law and with “operational assertions” by the U.S. military. But such an
approach is less certain, riskier, and costlier than taking advantage of the Convention.
Customary law is by nature subject to varying interpretations and change over time.
Operational assertions—sending military ship and air- craft into contested areas—
involve risk to naval personnel as well as political costs. Such assertions should be
conducted aggressively where needed but avoided where possible.”

1
David B. Sandalow, “Law of the Sea Convention: Should the U.S. Join?,” Brookings Institution, August 19
2004. Available at: htps://www.brookings.edu/research/law-of-the-sea-convention-should-the-u-s-join/
According to this argument, the United States must accede to UNCLOS to give the agreement
legitimacy. This would not only prevent the agreement from falling apart, but it could also give
the US leverage in fighting Chinese expansionism in the South China Sea. According to Harris
of the Diplomat2

“Another benefit of the treaty is the boost it would give to U.S. international legitimacy.
China regularly violates the economic rights of other Asia-Pacific countries by
controlling ocean territories reserved for our allies in the region, such as Japan and
South Korea. By joining the Convention on the Law of the Sea (UNCLOS), the U.S.
would have the legal authority to enforce the treaty – preventing China, which has
already ratified UNCLOS, from illegally stripping its neighbours’ natural resources. As
it stands now, we lack the legal ability to prevent China from gaming the system. If we
ratify the treaty, we gain a seat at the negotiating table and leverage against China’s
bullying tactics.”

Whether the US joining would actually make the treaty more legitimate is up for discussion,
especially when considering the US’s history of violating international law. There are also costs
and benefits to pressuring China on the South China Sea.

Oil Drilling/Deep Seabed Mining

UNCLOS establishes that nations may claim exclusive economic zones up to 200 nautical
miles from their coasts. Countries that claim these zones are free to extract resources in those
areas. One complication with the US’s non-party status in UNCLOS is that the United States
does not have strong legal backing to its claims. Kolcz-Ryan explains in detail,

“The Convention would codify the United States’ sovereignty rights over all the
resources in the ocean, and on and under the ocean floor, in a 200- nautical mile EEZ
off its coastline. Because the United States has one of the longest coastlines and the
largest EEZ of all the countries in the world, it could gain significantly from these
provisions. The Convention also gives the United States an opportunity to expand its
sovereignty rights over resources on and under the ocean floor beyond 200 nautical
miles to the end of its continental shelf, up to 350 nautical miles. This mechanism is
especially valuable to the United States as it would maximize legal certainty regarding

2
Gail Harris [retired Captain, US Navy], “U.S. Must Remove UNCLOS Handcuffs,” The Diplomat, March 13
2012. Available at: htps://thediplomat.com/2012/03/u-s-must-remove-unclos-handcuffs/
 the United States’ rights to energy resources in large offshore areas, including the areas
of the Arctic Ocean. However, the United States must ratify the Convention for its
claims to be internationally recognized. Not surprisingly, the American oil companies’
favour ratification, as it will allow them to explore oceans beyond 200 miles off the
coast, where evolving technologies now make oil and natural gas recoverable.”

Notably, wind and other forms of renewable energy are subject to the same problems. Some
argue that the United States would need to ratify UNCLOS to harvest wind energy far offshore.3

Another important right conferred by UNCLOS is the right to mine the deep sea. Various
testimonies to Congress indicate that industry leaders are unwilling to invest in deep seabed
mining technology unless the US accedes to UNCLOS. John Norton Moore of the University
of Virginia School of Law told the House of Representatives,

“Of further great importance, this Convention protects the sovereign rights of the
United States over our military and commercial vessels; rights that are critical to the
economic and security interests of our Nation. In the ongoing struggle for oceans law,
these are our sovereign rights that are at the greatest risk, and adherence to the
Convention will unequivocally serve this national interest in protecting navigational
freedom. The Convention not only protects navigational freedom through an improved
regime of innocent pas- sage in the territorial sea and full freedom of navigation in the
new economic zone, but it creates a critical new regime of straits transit passage
permitting our submarines to transit straits submerged and our aircraft to enjoy over-
flight rights over such straits. And it recognizes immunity for our warships and
government ships operated for non-commercial purposes. In contrast, quite to the
contrary of arguments advanced against the Convention by some opponents, the
Convention does not remove United States sovereignty or sovereign rights over the
resources of the deep seabed. Neither the United States nor any other Nation has now,
or has ever had, sovereignty over the mineral resources beyond the continental margins.
In fact, it has been a consistent position of the United States and other developed nations
to oppose any extension of national sovereignty into this area. Indeed, it is precisely
because no nation in the world controls the mineral resources of the ocean basins that
the Convention has created a narrowly limited interna- tional mechanism to permit

3
Kieren Dwyer, “UNCLOS: Securing the United States’ Future in Offshore Wind Energy,” 18 MINN. J. INT’L
L. 265 (2009). Available at: htp://minnjil.org/wp-content/uploads/2015/11/Kieran-Dwyer_-UNCLOS-Securing-
the-United-States- Future-in-Offshore-Wind-Energy.pdf
 mining of these resources. For without such a regime, industry simply cannot obtain
the legal rights necessary for the over billion-dollar cost of a deep seabed mining
operation.4

Mining may have devastating ecological effects, but many argue that the mined materials could
make renewable energy economically viable.

Joining UNCLOS key to freedom of navigation

The value of the FON, as well as the need to buttress it, is also justified by the U.S. government
on the grounds that they are essential to U.S. national security. This realist justification is
provided both in general terms and rather as specific ones. The United States is a major naval
power compared to other nations that either do not have much of a navy (China has only
recently launched its first aircraft carrier and has little experience in naval warfare) or rely much
more on their land forces (e.g., Russia; O’Rourke, 2014; Robson, 2014). Hence, on the face of
it, the unencumbered right to move forces about in the seas advantages the United States. Roach
and Smith spell out this key claim in the following terms: The United States ‘requires maritime
mobility’ for its national security and ‘has more to lose than any other State if its maritime
rights are undercut’. As the world’s preeminent naval power, it is in the interest of the United
States to maximize its legal right to project naval power: ‘even though the United States may
have the military power to operate where and, in the manner, it believes it has the right to, any
exercise of that power is significantly less costly if it is generally accepted as being lawful’.
More broadly, U.S. military strategy recognizes that ‘joint assured access to the global
commons and cyberspace constitutes a core aspect of U.S. national security and remains an
enduring mission [...] the maritime domain enables the bulk of the [U.S. military’s] forward
deployment and sustainment, as well as the commerce that underpins the global economic
system’. Likewise, Dennis Mandsager argues that without FON, ‘the ability of the United
States to project military power, provide logistics support, maintain forward presence, and
accomplish missions such as disaster relief, humanitarian assistance, and non-combatant
evacuations, will be severely hampered’. The purpose of FON is to ‘preserve the global
mobility of U.S. forces by avoiding acquiescence in excessive maritime claims of other nations’
according to Jonathan Odom, the DOD Oceans Policy Advisor (2014, p. 16) and James Kraska

4
John Norton Moore, “UNITED STATES ADHERENCE TO THE LAW OF THE SEA CONVENTION A
COMPELLING NATIONAL INTEREST,” Prepared Testimony of John Norton Moore Before the House
Commitee on International Relations, May 12, 2004. Available at: htp://www.virginia.edu/colp/pdf/house-
testimony.pdf
(2011, pp. 1–2). More specifically, FON was crucial during the Cold War for nuclear
deterrence because it served to protect the right for ballistic missile submarines to transit
international straits while submerged, a right that was threatened by the expansion of the
territorial sea (Groves, 2011). FON is particularly relevant to U.S. maritime power projection
in East Asia. The United States used to be able to demonstrate its commitment to defend its
allies in the region by merely sending its aircraft carriers. For instance, when China seemed to
threaten to use force to integrate Taiwan into the mainland in 1996, the United States ordered
two carrier battle groups to transit the Taiwan Strait, and this sufficed to persuade Beijing to
back down (Trigkas, 2014). In recent years though, China has developed antiship missiles and
other weapons that are viewed by the U.S. military as greatly undermining the U.S. ability to
rely on its naval vessels to project power. Hence the U.S. developed an Air Sea Battle (ASB)
concept that entails neutralizing A2AD weapons on the Chinese mainland in the event of war
with China (Krepinevich, 2010)—raising concerns that such action would lead to an all-out
war that may well include nuclear arms (White, 2013, pp. 122–124). The evolution of ASB,
which was renamed the Joint Concept for Access and Manoeuvre in the Global Commons in
2015, has been informed by the understanding that FON and power projection are mutually
reinforcing and that ‘access-restricting capabilities directly threaten U.S. and partner freedom
of manoeuvre in the global commons, while also threatening the fundamental assurances
necessary for global security and prosperity’ (Morris et al., 2015, p. 1; Ebioni, 2014).

Arctic Resources
Maritime natural resource exploitation – from oil and natural gas to seabed minerals has
strategic implications for the United States. Ratifying LOSC will put the United States in a
position to secure internationally recognized claims to those important natural resources. The
United States is committed to exploring for additional domestic reserves of oil and natural gas
in an effort to bolster domestic production and provide assured access to energy resources.
Increasing production from domestic reserves will not necessarily help reduce higher oil prices,
since these prices are set by the global market, but it can help close the U.S. trade deficit and
provide more assured access to energy if a major crisis chokes off access to foreign energy
imports for any length of time. Offshore oil and natural gas exploration along the extended
continental shelf – an area beyond the 200-nautical-mile EEZ – is expected to increase U.S.
reserves over the next decade. However, the United States cannot secure internationally
recognized sovereign rights to those resources unless it ratifies LOSC. While the United States
enjoys national jurisdiction over living and non-living resources above and below the seabed
out to 200 nautical miles, claims to resources beyond the EEZ must be formally made to the
U.N. Commission on the Limits of the Continental Shelf, the National Airspace International
Airspace in operating in areas beyond U.S. jurisdiction. In short, U.S. failure to ratify LOSC
could have a chilling effect on commercial resource exploration and exploitation on the
extended continental shelf. Ratifying LOSC will allow the United States to make a claim to the
extended continental shelf – an area estimated to be twice the size of California – and bring the
potential oil and natural gas resources beyond the existing EEZ under international body
established by LOSC for parties to adjudicate claims to the extended continental shelf. Without
the United States ratifying LOSC, U.S. companies operating beyond the EEZ would be
considered on the high seas and beyond the formal legal protection of the United States. As a
result, offshore drilling companies have increasingly expressed their concern about the lack of
legal protections afforded to U.S. companies and have indicated a reluctance to assume
significant risk U.S. jurisdiction. Furthermore, these sovereign resources would be beyond the
jurisdiction of the International Seabed Authority (ISA), which only has authority over
resources in the deep seabed beyond other national jurisdictions. While critics often cite
concerns about the ISA and its administration of U.S. companies drilling under the deep seabed,
such concerns will be assuaged by bringing the extended continental shelf under inter-
nationally recognized U.S. jurisdiction. Seabed mining, in the Arctic and elsewhere, is also
becoming an important strategic interest for the United States. U.S. companies increasingly
seek to engage in seabed mining for minerals such as rare earth elements and cobalt that are
critical to the broad U.S. economy and used in producing defence assets. However, as long as
the United States remains outside the international legal protections afforded by LOSC, the
private sector remains hesitant to invest in seabed mining investments that would reduce U.S.
vulnerabilities to external pressure and supply disruption. Indeed, since few suppliers provide
such minerals and they are prone to intentional or unintentional disruptions and price spikes,
increasing U.S. production will help prevent suppliers from exerting political and economic
leverage over the United States and its allies.

COMMERCIAL CONSIDERATIONS
The U.S. economy depends on the oceans. Goods worth more than $700 billion are shipped
through U.S. ports each year. More than a third of oil and gas produced around the world each
year comes from offshore wells. (For U.S. oil and gas production, the figure is roughly 25
percent.) U.S. fisheries had landings in excess of $3 billion in 2002. Submarine cables are
essential to global communications and therefore much of global commerce.

The Law of the Sea Convention helps promote U.S. commercial interests in several important
respects.

First, the navigational freedoms recognized under the Convention provide a stable environment
for global commerce. Clear rules with widespread acceptance facilitate international trade and
reduce risks to the many industries that depend upon marine transport.

Second, the U.S. oil and gas industry benefits from the Convention’s rules concerning offshore
resources. Under the Convention, coastal nations have exclusive authority over all resources
within two hundred miles of shore. In addition, coastal nations have authority over the ocean
floor beyond this 200-mile zone, to the edge of the continental shelf.

This latter provision is especially beneficial for the United States, which has the largest
continental shelf in the world. Vast areas of the ocean floor off Alaska, Maine, and other states
are brought under U.S. jurisdiction as a result of this provision. With expected advances in
deep water drilling technologies, these areas hold vast potential for oil and gas production.

In addition, the Convention offers a ready set of procedures for delineating the outer limit of
each country’s continental shelf. These procedures help provide the certainty needed for major
capital investment in offshore oil and gas facilities.

However, these procedures are only available to nations that join the Convention. In addition,
only nations that join the Convention can nominate commissioners to the Convention’s
Commission on the Limits of the Continental Shelf.

Currently pending before this Commission is a submission by Russia concerning the Arctic
Ocean. Based on preliminary analyses, the United States is concerned that Russia is claiming
territory that fails to meet the Convention’s criteria for the continental shelf. Unless the United
States promptly ratifies the Convention, decisions concerning Russia’s submission will be
made without full U.S. influence or input. Claims are also being submitted by Australia and
Brazil.

For these reasons and others, the American Petroleum Institute, the International Association
of Drilling Contractors, and the National Ocean Industries Association all support U.S.
ratification of the Convention.
Some opponents of ratification have objected to the Convention’s provisions concerning
revenue sharing of proceeds from the outer continental shelf. Under the Convention, no
payments are owed for the first five years of production (which are typically the most
productive). Beginning in year six, payments equal to 1 percent of the value of production at
the site, increasing 1 percent each year to a maximum of 7 percent, are owed to the International
Seabed Authority.

Significantly, the U.S. oil and gas industry, which would likely make these payments, does not
oppose the Convention’s revenue sharing provisions. After noting “the significant resource
potential of the broad U.S. continental shelf,” Paul Kelly of Rowan Industries, representing the
American Petroleum Institute and other major industry groups, told the Senate Foreign
Relations Committee in October 2003 that “on balance the package contained in the
Convention, including the modest revenue sharing provision, clearly serves U.S. interests.”

Finally, the Convention promotes the United States’ substantial commercial interests in ocean
fisheries. The recognition of our 200-mile exclusive economic zone by other nations is
fundamental to gaining full value from our rich fisheries. (Under the Convention, the United
States has the exclusive right to determine the allowable catch of living resources within this
200-mile zone.) The requirement that nations work together in managing migratory species is
equally fundamental to maintaining the health of many fish stocks.

The U.S. fishing industry, including the U.S. Tuna Foundation, strongly supports U.S.
ratification of the Convention.

ENVIRONMENTAL CONSIDERATIONS
The ocean environment is under enormous stress. Many fisheries are depleted or collapsing.
Pollution plagues highly populated coastal regions. Non-native species threaten ocean
ecosystems around the globe.

The Law of the Sea Convention provides a comprehensive framework for international
cooperation to protect the marine environment. It imposes minimum requirements—all of
which are already being met by the United States—to protect and preserve the marine
environment. Under the Convention, states are required to take measures to address pollution
from vessels and land-based sources, to prevent the introduction of alien or invasive species,
and to conserve and manage coastal fisheries.
The Convention also requires states to work together to protect the oceans. States are required
to cooperate in the management of high seas fish stocks, as well as stocks that migrate between
the high seas and exclusive economic zones, setting the stage for regional agreements essential
to managing ocean fisheries. States are also required to work together to protect marine
mammals, which are given special protections under the Convention.

The standards for environmental protection set forth in the Convention work strongly to the
advantage of the United States, which has already met and in most cases significantly exceeded
these standards but necessarily depends on actions by other nations to protect the marine
environment. The Convention has strong support from environmental groups, including the
National Environmental Trust, the Ocean Conservancy, and the World Wildlife Fund.

Some observers have expressed concern that the Convention gives undue preference to
navigational rights over the rights of coastal states to protect their shores from marine pollution.
However, the Convention affirms the sovereign right of all nations to impose conditions for
port entry designed to protect the marine environment and recognizes numerous coastal state
authorities to address polluting activities of foreign vessels. These and other provisions strike
a reasonable balance between the United States’ interests as a coastal state and seagoing nation.

CONCLUSION
Diverse voices—including the Joint Chiefs of Staff, the Navy, the oil and gas industry, the
fishing industry and major environmental groups—have expressed strong support for U.S.
ratification of the Law of the Sea Convention. The U.S. Commission on Oceans Policy,
appointed by President Bush pursuant to the Oceans Act of 2000, unanimously recommended
U.S. ratification, as did the privately appointed Pew Oceans Commission. This breadth of
support reflects the many benefits the United States would enjoy from ratifying the Convention.

By its terms, the Convention is open to amendment for the first time in November 2004—the
tenth anniversary of its entry into force. At that time, many U.S. gains under the Convention
may be at risk.

In February 2002, the Bush administration declared that U.S. accession to the Convention was
“urgent.” The Senate should promptly approve the Law of the Sea Convention to protect and
promote wide-ranging U.S. interests.
BIBLEOGRAPHY
 Kieren Dwyer [JD Candidate University of Minnesota Law School], “UNCLOS: Securing the
United States’ Future in Offshore Wind Energy,” 18 MINN. J. INT’L L. 265 (2009). Available at:
htp://minnjil.org/wp-content/uploads/2015/11/Kieran-Dwyer_-UNCLOS-Securing-the-
United-States- Future-in-Offshore-Wind-Energy.pdf
 Norton Moore [Professor of International Law at the University of Virginia], “UNITED STATES
ADHERENCE TO THE LAW OF THE SEA CONVENTION A COMPELLING NATIONAL INTEREST,”
Prepared Testimony of John Norton Moore Before the House Commitee on International
Relations, May 12, 2004. Available at: htp://www.virginia.edu/colp/pdf/house-testimony.pdf
 Jonathan J. Vanecko [LCDR, US Navy], “Time to Ratify UNCLOS: A New Twist on an Old
Problem,” Naval War College, May 4 2011. Available at:
htps://www.hsdl.org/?view&did=706124
 Bryan Walsh, TIME Magazine, ”New Study Shows How the Side Effects of Drilling in the Arctic
Will Make Climate Change Worse | TIME.com”, 07-20-2012,
htp://science.time.com/2012/07/20/its-not-just- spills-the-climate-risks-of-arctic-drilling/
 United Nations Convention of Law Of Seas