‘Case of the Week’ 5: UNCLOS

CotW Lesser Disclaimer: As a free service, Case of the Week cases are not subject to the same editorial process as the COG 2010 sourcebook, and don’t generally have extensive work put into them. You may find material and sources in these cases that would not appear in the sourcebook. We hope this case will be useful to you; enjoy!

About the Author: Cameron Rentschler is one of the writers for COG 2010. Besides being known as an amazing researcher, his debate career has taken him to Nationals three times and this past year garnered him 17th place in the country.

1AC: Ratify UNCLOS

By Cameron Rentschler

“With the exception of the deep seabed mining provisions that have now been corrected by the 1994 Agreement, this [The Convention on the Law of the Sea] treaty has a remarkable, probably unique, history of support from every Secretary of State, Chairman of the Joint Chiefs of Staff, and State Department Legal Advisor since its inception during the Nixon administration. All of the principal parties affected — the military, the energy industry, the communications industry, fisheries, and environmental organizations, among others — are united in recognizing that the United States will benefit by becoming a party to this Convention.”

Because my partner and I agree with what William H. Neukom, President of the American Bar Association said in 2007 that my partner and I stand resolved: That the United States Federal Government should significantly reform its policy toward Russia.

First, let’s define a key term:

The United Nations Convention on the Law of the Sea, abbreviated UNCLOS or LOST: The United Nations Convention on the Law of the Sea (UNCLOS) comprises 320 articles and nine annexes, governing all aspects of ocean space, such as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters

Next, let’s look at the current situation in Inherency:

1. US has not acceded to UNCLOS

American University International Law Review  May 1, 2010 MICHAEL A. BECKER Co-Chair, Law of the Sea Committee, ABA Section of International Law; Associate, Patterson Belknap Webb & Tyler LLP; J.D., Yale Law School, B.A., Amherst College. “RUSSIA AND THE ARCTIC: OPPORTUNITIES FOR ENGAGEMENT WITHIN THE EXISTING LEGAL FRAMEWORK”  [CR]

“There are currently 160 parties to UNCLOS, including four of the five Arctic coastal states: Canada, Denmark, Norway, and Russia (which joined in 1997).2′ As of 2009, the United States had not yet acceded to the Convention, despite extensive and bipartisan support for it to do so. And while the United States bestows the status of customary international law on most UNCLOS provisions,” the failure of the United States to accede to the treaty has deprived it of a “seat at the table when the rights that are vital to [U.S.] interests are debated and interpreted. Non-party status precludes the United States from submitting an application for the recognition of any extended continental shelf it may be able to claim in the Arctic. Indeed, to the extent the United States is concerned about the adherence of Russia or any other country to the laws and norms that apply to the Arctic, the United States would considerably strengthen its position by swiftly acceding to the Convention.”

While the US has signed the Treaty, the senate has not voted on it.

2. Nearly everyone likes UNCLOS, but we won’t vote for fear of filibuster

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

President Bill Clinton submitted the Law of the Sea Convention to the Senate for its approval in 1994, but despite numerous congressional hearings and even though the Senate Foreign Relations Committee (SFRC) twice recommended that the Senate give its consent,2 the convention has yet to make it to the Senate floor.3 The convention actually enjoys broad bipartisan support in Congress; has been endorsed by both the Clinton and George W. Bush administrations; is championed by the Joints Chiefs of Staff; and has been recommended by a wide array of interest groups in the United States, including the foremost national security, commercial, and environmental organizations.4 Still, largely because of the threat of a filibuster from a vocal opposition, the convention has yet to receive a full Senate vote.”

Because the US will not ratify UNCLOS, we present the following Plan:

Mandate:

  1. The US senate will ratify the Law of the Sea Treaty in order to accede to the United Nations Convention on the Law of the Sea.

Agency: Congress, the president, and any necessary federal agencies

Enforcement: US federal government

Timeline: Immediately

This plan shall be established in a federal preemption clause so that all conflicting legislation shall be amended or abolished.

Next, let’s look at why we should ratify the Law of the Sea Treaty in the Justifications:

Justification 1. Economic

Under UNCLOS, member countries have the sole rights to an “exclusive economic zone” that extends 200 miles offshore. Countries can also apply for an addition 150 miles of ocean as an extension of their exclusive economic zone. The US however, cannot gain those 150 miles without being a part of UNCLOS.

A. The US cannot extend offshore drilling without acceding to UNCLOS

David J. Bederman. January 18, 2008. Professor of Law at Emory University AB, Princeton University, MSc, London School of Economics, JD, University of Virginia, Diploma, The Hague Academy of International Law, PhD, University of London. Harvard International Law Journal “The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS” http://meetings.abanet.org/webupload/commupload/IC965000/relatedresources/49_Online_Bederman_1_18_08.pdf [CR]

“Likewise, with $100-a-barrel oil prices and nearly one-third of all the world’s hydrocarbons being produced off-shore, it would be folly for the U.S. to ignore the need for access to extended outer continental shelf (OCS) oil and gas resources. The great irony of the U.S. debates over the Law of the Sea Convention is that for years (since the Reagan Administration rejected the treaty in the early 1980s) we have been focusing on the wrong seabed resources. Although the original UNCLOS was rightly rejected because of its absurdly drafted provisions on the mining of manganese nodules (including the creation of an international mining consortium, known grandiloquently as “The Enterprise”), UNCLOS has relatively fewer provisions on such ocean resource activities as lifting oil and gas reserves beyond 200 nautical miles, mining polymetallic sulfides and other exotic substances found at mid-ocean ridges, bio-prospecting the unique flora and fauna of the ocean abyss, and salvaging historic shipwrecks.13 That the United States might extend its Arctic continental shelf off Alaska as far out as 350 nautical miles has the oil industry – and Alaska’s Senate delegation – salivating at the possibilities. But that extension would only be possible if the U.S. accedes to UNCLOS and files a claim before the U.N. Commission on the Limits of the Continental Shelf.14”

B. UNCLOS would give the US access to more than a trillion in resources

Meg Giles, Special Assistant to the Director of Legislation at Association of the U.S. Navy. MA in International Affairs @ George Washington University, BA political science @ Southwestern December 2009 “Why we need the Law of the Sea treaty” Published by the US Navy pg. 9 http://www.oceanlaw.org/downloads/articles/AUSN-law-of-sea-treaty.pdf [CR]

By acceding to the Convention, the US could claim the rights to resources worth more than $1 trillion beyond its EEZ, and it would have a say in assessing the claims of other countries.4 As

Secretary of State, Hillary Clinton stated in an 16 October 2009 letter to Senator John Kerry, Chairman of the Senate Foreign Relations Committee, endorsing ratification of UNCLOS, “The United States, as a major maritime power, the country with the largest exclusive economic zone, and one of the largest continental shelves, stands to gain more from this treaty in terms of economic and resource rights than any other country.”5”

Justification 2: International Relations

A. US relations hurt with other nations b/c of non-ratification

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

More difficult to measure than what would be gained from U.S. accession is the diplomatic blight on America’s reputation for rejecting a carefully negotiated accord that enjoys overwhelming international consensus, one that has been adjusted specifically to meet the demands put forth by President Reagan two decades ago. Remaining outside the convention undermines U.S. credibility abroad and limits the ability of the United States to achieve its national security objectives. The treaty was negotiated over decades during which American delegations scored important victories. To the dismay of the rest of the world that negotiated the convention with the United States in good faith (and is now proceeding in making ocean policy and setting legal precedent in forums where U.S. influence is diminished), after fifteen years the Senate has yet to have an up or down vote.”

B. Cooperation on Arctic helps US-Russian relations

American University International Law Review  May 1, 2010 MICHAEL A. BECKER Co-Chair, Law of the Sea Committee, ABA Section of International Law; Associate, Patterson Belknap Webb & Tyler LLP; J.D., Yale Law School, B.A., Amherst College. “RUSSIA AND THE ARCTIC: OPPORTUNITIES FOR ENGAGEMENT WITHIN THE EXISTING LEGAL FRAMEWORK”  [CR]

“On all of these fronts, there will continue to be opportunities to engage with Russia on collaborative solutions to the challenges facing the Arctic—^problems that lend themselves to multilateral solutions. These opportunities to engage with Russia should be seized by the United States and others. By finding common ground in the Arctic, these efforts may have a positive byproduct: the improvement of relations with Russia in other spheres of conflict and areas of shared interest.”

Justification 3. National sovereignty

A. US is giving up sovereign rights by not ratifying UNCLOS

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

Remaining a nonparty also prevents the United States from making its own submission to the commission. The State Department is currently overseeing an effort to collect evidence for an eventual American claim to the extended continental shelf, but the United States cannot formally submit this package for review by the CLCS until it formally joins the convention. By not joining, the United States is actually giving up sovereign rights—missing an opportunity for international recognition for a massive expansion of U.S. resources jurisdiction over as much as one million square kilometers of ocean, an area half the size of the Louisiana Purchase. Remaining outside the convention prevents the United States from participating in the process of overseeing the claims of other countries to the extended continental shelf and from formally making its own.”

B. UNCLOS expands US sovereignty

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“The majority view of the SFRC and the opinion of every major ocean constituency group is that joining the convention is in America’s foreign policy interests. Debating the merits of internationalism versus unilateralism is a great U.S. tradition, but the irony is that the convention actually allows for an expansion of U.S. sovereignty: freedom of movement for a powerful navy; a legal tool for U.S. forces to combat scourges at sea, such as piracy, drug trafficking, and human smuggling; and a process for extending U.S. jurisdiction over a vast amount of ocean space equal to half the size of the Louisiana Purchase.”

Justification 4. National Security

A. US Navy needs navigation rights in order to object to interference from coastal states

David J. Bederman. January 18, 2008. Professor of Law at Emory University AB, Princeton University, MSc, London School of Economics, JD, University of Virginia, Diploma, The Hague Academy of International Law, PhD, University of London. Harvard International Law Journal “The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS” http://meetings.abanet.org/webupload/commupload/IC965000/relatedresources/49_Online_Bederman_1_18_08.pdf [CR]

“And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS,9 has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits)10 have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS. Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party).11 It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively)12 of state behavior – and that standard is UNCLOS.

B. UNCLOS guarantees rights for US military vessels

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

Why are the provisions and protections of the convention vital to implementing U.S. national defense and maritime strategies? Why now? All six core capabilities of U.S. maritime forces are predicated upon legally certain freedom of navigation and overflight, as defined by the United States and codified in the convention. Joining the convention supports the strategic and operational mobility of American air, surface, and submarine forces. It provides legal guarantees for those forces to transit the high seas, exclusive economic zones, international straits, and archipelagic sea routes during times of crisis. It supports the freedom of those forces to legally conduct military survey, reconnaissance, and intelligence gathering under the terms and conditions the United States prefers. It allows the high-seas interdiction of stateless vessels and illegal activities under frameworks such as the Proliferation Securitym Initiative, using the protocols the United States carefully crafted to conform to the convention. Most recently, this year articles 100 and 105 of the convention have been applied as the basis of an agreement with Kenya to prosecute Somali pirates apprehended in the Indian Ocean.”

And finally, the  Urgency for gaining these benefits as soon as possible.

Must ratify UNCLOS to stop Russian seizure of the Arctic

Rachel S. Salzman, May 2010, Program Manager, Euro-Atlantic Security Initiative at Carnegie Endowment for International Peace. “U.S. POLICY TOWARD RUSSIA: A Review of Policy Recommendations.” http://www.amacad.org/russia/recommendations.pdf

The Arctic has become a growing area of dispute, and Russia has angered some by laying claim to a significant portion of its seabed, arguing that the submarine Lomonosov Ridge is contiguous with the Siberian continental shelf and therefore an extension of Russian territory.8 Some observers recommend that the United States ratify (or renegotiate) the Law of the Sea Treaty (UNCLOS) and take the lead in addressing this problem.”

We can see that the US stands to gain Economically, Politically and Militarily by ratifying the United Nations Convention on the Law of the Sea treaty.

Backup: UNCLOS

AT: “National Sovereignty”

1.  UNCLOS codifies national sovereignty

American University International Law Review  May 1, 2010 MICHAEL A. BECKER Co-Chair, Law of the Sea Committee, ABA Section of International Law; Associate, Patterson Belknap Webb & Tyler LLP; J.D., Yale Law School, B.A., Amherst College. “RUSSIA AND THE ARCTIC: OPPORTUNITIES FOR ENGAGEMENT WITHIN THE EXISTING LEGAL FRAMEWORK”  [CR]

UNCLOS is wide-ranging in scope and attempts to strike a careful balance between the “exclusive” right of coastal States to control their marine resources and an “inclusive” freedom of the seas to which all states are entitled.'”‘ On the one hand, UNCLOS codifies a 12 nautical mile (“nm”) territorial sea,’^ a contiguous zone extending 24 tim from the coastline,” and an Exclusive Economic Zone (“EEZ”) extending 200 nm from the coastline^”—maritime zones in which the coastal State wields substantial regulatory authority (and complete sovereignty with respect to the territorial sea). On the other hand, UNCLOS carefully preserves the traditional freedoms (e.g., navigation and other uses) of the high seas^’—those waters beyond the EEZ—and codifies the concepts of “innocent passage” through the territorial sea,^^ and “transit passage” through international straits.^^ The Convention sets forth a framework for the development of more specific measures aimed at the shared management of living marine resources^” and the prevention and reduction of marine pollution.^^ It also provides a “menu” of options for the resolution of oceans-related disputes.^’* All of these provisions are relevant to the Arctic.”

AT: “Tax on oil”

1. Reagan supports 2. Expands what we can drill 3. Companies support

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“Also, the convention does not assess a “tax” but, rather, includes modest revenue sharing provisions from exploitation of oil and gas from the seabed beyond the EEZ that have been supported by every president since Richard Nixon, including Ronald Reagan. These resources were far outside any earlier claim made by the United States, and the agreement to the modest payments was part of a package deal that included willingness to recognize extension of U.S. control over the resources on the continental margin beyond two hundred nautical miles, which may encompass well over a million square kilometers of potentially exploitable minerals. That the payments are, indeed, modest is attested to by the support of the U.S. oil and gas industry for these convention provisions.”

AT: “OMG WORLD GOVERNMENT STEALING LIBERTY AND KILLING PEOPLE!!!”

A. US couldn’t be forced to do anything under UNCLOS

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“On an item-by-item assessment, however, these arguments are found to be lacking (Appendix I in far greater detail addresses the convention’s opponents’ critical concerns). With regard to dispute settlement, the United States has indicated that it would choose arbitration as stated in the draft resolution of advice and consent; it cannot be forced into any other dispute settlement mechanism. Specifically, Article 287 of the convention reads: “[I]f the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to

arbitration in accordance with Annex VII, unless the parties otherwise agree.” Under no circumstances can the United States be subjected to any dispute resolution procedures without its consent.”

B. We get permanent veto on anything that doesn’t have to be ratified

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“Amendments to the convention may become binding on the United States without the advice and consent of the Senate. Article 316 of the convention has always required that most amendments be specifically ratified by a state before binding that state. The only exceptions to this requirement are for amendments to the Statute of the International Tribunal of the Law of the Sea, Annex VI, and for amendments relating to provisions on seabed mining. Amendments to Annex VI can only be adopted “without objection” per Article 313 or by consensus. In either case, the United States can block passage if necessary to obtain the advice and consent of the Senate. President Reagan’s specific objection regarding amendments to seabed-mining provisions was remedied by the interaction of the 1994 agreement and the conventionConvention Article 161, paragraph 8(d) requires consensus of the ISA council to adopt amendments to Part XI, which contains the seabed-mining provisions. Section 3, paragraph 15(a) of the annex to the 1994 agreement provides the United States a permanent seat on the council by virtue of being the largest economy on the date of entry into force of the convention. Together these sections effectively give the United States a “permanent veto” over binding amendments to the seabed provisions of the convention. Similar to concerns regarding distribution of benefits to national liberation movements, the United States must join the convention and claim a seat on the ISA to enjoy these protections against unfavorable amendments. Failure to join the convention and participate in the ISA risks “poisoning” the convention to U.S. accession by the addition of unacceptable amendments.”

C. US could ignore any new amendments

Meg Giles, Special Assistant to the Director of Legislation at Association of the U.S. Navy. MA in International Affairs @ George Washington University, BA political science @ Southwestern December 2009 “Why we need the Law of the Sea treaty” Published by the US Navy pg. 9 http://www.oceanlaw.org/downloads/articles/AUSN-law-of-sea-treaty.pdf [CR]

Amendments to non-seabed dispute settlement provisions could be blocked by the US as well. In all other provisions, amendments may be adopted through a Conference of Parties or a simplified procedure – both of which could be blocked by the US. In either of these cases, amendments only apply to those parties which explicitly ratify or accede to them, and to new parties to the Convention. Those countries that have not ratified them are not affected by the amendments. 11”

D. UNCLOS has little power compared to other treaties

David J. Bederman. January 18, 2008. Professor of Law at Emory University AB, Princeton University, MSc, London School of Economics, JD, University of Virginia, Diploma, The Hague Academy of International Law, PhD, University of London. Harvard International Law Journal “The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS” http://meetings.abanet.org/webupload/commupload/IC965000/relatedresources/49_Online_Bederman_1_18_08.pdf [CR]

“Those who practice and profess international law should be profoundly grateful for this political moment. We can (and must) seek to inform the public about the realities of the institutional and dispute-settlement regimes in UNCLOS. The truth is, of course, that UNCLOS has relatively weak features in this regard, especially compared with such institutions as the WTO. The International Tribunal for the Law of the Sea (ITLOS) will have virtually no docket of cases, aside from applications for prompt release of vessels and crews and the occasional matter regarding fishing rights.19 The vast majority of disputes under UNCLOS will be resolved by ad  hoc arbitrators, hand-picked by the parties.20 Likewise, the International Seabed Authority (ISA) is likely to be a rather sclerotic organization, given its limited mandate (with the modifications made to Part XI in 1994)21 until such time (if ever) that deep seabed mining for manganese nodules has even the remote prospect of profitability. Ironically, the work of one UNCLOS institution that does bear attention – the Continental Shelf Commission, which is the technical body that will rule on any U.S. application to extend its claims in the Arctic – has not yet been fully evaluated. As for the “international tax” that the ISA will assess on continental shelf oil and gas production beyond 200 nautical miles,22 that provision, ironically, was based on a proposal made by the Nixon Administration as an alternative to the cumbersome regime for manganese nodules.23”

E. The US will not submit to ICJ or other international bodies

William H. Neukom President of the American Bar Association September 27, 2007. LL.B. Stanford University. A.B. Dartmouth College “statement submitted to the Committee on Foreign Relations of the United States Senate regarding the Convention on the Law of the Sea” http://meetings.abanet.org/webupload/commupload/IC965000/relatedresources/2007sept27sfrcstatements_t.pdf [CR]

Opponents have also raised alarmist objections regarding the jurisdiction of the International Tribunal on the Law of the Sea created under the Convention which are patently untrue. The United States, in accordance with provisions of choice in the Convention will elect arbitral procedures for certain categories of disputes rather than submit to the jurisdiction of that Tribunal or the International Court of Justice. The United States also will opt out of all mandatory dispute settlement with respect to military and certain other activities. Thus, contrary to opponents’ claims, the Convention does not and will not award any control over US military activities to any international court or international bureaucracy.”

F. US has permanent veto over any changes to the convention

William H. Neukom President of the American Bar Association September 27, 2007. LL.B. Stanford University. A.B. Dartmouth College “statement submitted to the Committee on Foreign Relations of the United States Senate regarding the Convention on the Law of the Sea” http://meetings.abanet.org/webupload/commupload/IC965000/relatedresources/2007sept27sfrcstatements_t.pdf [CR]

The rule of law in the oceans is not static, and the Convention will provide the platform for additional legal rules on future uses and protections of the oceans. The ABA did not endorse the treaty until 1994 because we agreed with objections to one part of the treaty dealing with deep seabed mining. After intensive negotiations, again led by the United States, those objections were resolved in an Agreement signed by the United States in August 1994 and now in force with the Convention. In accordance with that Agreement, the United States will become a permanent member of the governing Council of the International Seabed Authority and of the Finance Committee, which operate by consensus, once it becomes a party to the Convention. From that point forward, no decisions will be able to be made over the objections of the United States. Our failure to become a party to the Convention and take advantage of these changes negotiated in the Agreement will become more problematic in the future when and if mining of the deep seabed becomes commercially feasible.”

Justification 1: Economy

A. UNCLOS provisions prerequisite to arctic oil/naty gas recovery

American University International Law Review  May 1, 2010 MICHAEL A. BECKER Co-Chair, Law of the Sea Committee, ABA Section of International Law; Associate, Patterson Belknap Webb & Tyler LLP; J.D., Yale Law School, B.A., Amherst College. “RUSSIA AND THE ARCTIC: OPPORTUNITIES FOR ENGAGEMENT WITHIN THE EXISTING LEGAL FRAMEWORK”  [CR]

In an energy-driven world, the prospect of extensive and undiscovered hydrocarbon deposits has fueled the current focus on the Arctic. USGS scientists estimate that the Arctic contains conventional oil and gas resources totaling approximately 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids.”^ This could amount to “just over a fifth of the world’s undiscovered, recoverable oil and natural-gas resources.””‘ These numbers highlight the importance of the UNCLOS provisions that govern the exploitation of resources in the continental shelf and beyond. By reaching agreements with neighboring states as to the delimitation of its continental shelf within the 200 nm limit^”—and by “certifying” claims to the extended continental shelf beyond that limit with the Commission on Limits of the Continental Shelf (“Commission”)—each Arctic coastal state can secure legal certainty over the scope of its jurisdiction. This is a prerequisite to resource recovery projects that require massive amounts of public and private investment.^’”

B. Other countries submitting applications for rights in the arctic – US can’t until we ratify UNCLOS

American University International Law Review  May 1, 2010 MICHAEL A. BECKER Co-Chair, Law of the Sea Committee, ABA Section of International Law; Associate, Patterson Belknap Webb & Tyler LLP; J.D., Yale Law School, B.A., Amherst College. “RUSSIA AND THE ARCTIC: OPPORTUNITIES FOR ENGAGEMENT WITHIN THE EXISTING LEGAL FRAMEWORK”  [CR]

In accordance with the procedures set forth in Article 76 of UNCLOS, Russia and Norway have already submitted extended shelf claims to the Commission.” In 2001, Russia made the first such application, which included a claim to the Lomonosov Ridge, a 1,240-mile undersea mountain chain extending from the Russian coast to the North Pole and beyond.” The claim sought to add nearly one million square kilometers to Russia’s arctic territory.^” Other states, including the United States, objected to that application on the merits.” A year later, the Commission recommended that Russia make a revised submission based on additional scientific evidence.’* Significantly, Russia accepted the Commission’s ruling and is in the process of developing a stronger submission through the collection and analysis of additional evidence from the ocean floor. Elsewhere, submissions from Denmark and Canada are expected in the coming years. The United States—which, like its Arctic neighbors, is busily mapping the ocean floor to compile the necessary data for its own claim—cannot submit an application to the Commission until it accedes to UNCLOS.””

C. UNCLOS encourages R&D and innovation for future economic prosperity

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“The vastness of ocean space and the limits of our knowledge concerning the oceans’ future economic potential also make it critically important that the United States plays a central role in the future implementation of the convention. The convention facilitates the conduct of marine scientific research to expand understanding of the marine realm. As knowledge increases and as technology advances, the oceans may hold enormous, and as yet only dimly perceived, potential. When coupled with America’s unrivaled capacity for technological innovation, new ocean uses may become essential to helping drive economic prosperity for future generations. In the midst of a historic economic crisis, the United States needs to position itself by joining the treaty in order to secure its share of ocean industries of the future and the highpaying jobs they will create.

D. US companies disadvantaged in energy and mining

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

American energy and deep-seabed companies are at a disadvantage in making investments in the OCS(Outer continental shelf) due to the legal uncertainty over the outer limit of the U.S. continental shelf, nor can they obtain international recognition (and, as a result, financing) for mine sites or title to recovered minerals on the deep seabed beyond national jurisdiction. Even if U.S. firms were to unilaterally set out on their own, because the United States has negligible mineral-processing technology, they would have difficulty finding international partners to buy unprocessed minerals because they would have been obtained outside of the agreed regime.”

Justification 2: International Relations

A. International relations: counter-proliferation efforts

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

The U.S. failure to join the convention has directly prevented expansion of the PSI(Proliferation Security Initiative) with some critically important Pacific countries. Although these countries are supportive of U.S. counterproliferation efforts, they indicate that U.S. refusal to join the convention has eroded their confidence that the United States will abide by international law when conducting PSI interdiction activities. Remaining outside the convention risks further damaging American efforts to develop cooperative maritime partnerships, such as PSI, and undermining implementation of U.S. security strategies that require the confidence and trust of other nations.”

B. US relations hurt with other nations b/c of non-ratification

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

More difficult to measure than what would be gained from U.S. accession is the diplomatic blight on America’s reputation for rejecting a carefully negotiated accord that enjoys overwhelming international consensus, one that has been adjusted specifically to meet the demands put forth by President Reagan two decades ago. Remaining outside the convention undermines U.S. credibility abroad and limits the ability of the United States to achieve its national security objectives. The treaty was negotiated over decades during which American delegations scored important victories. To the dismay of the rest of the world that negotiated the convention with the United States in good faith (and is now proceeding in making ocean policy and setting legal precedent in forums where U.S. influence is diminished), after fifteen years the Senate has yet to have an up or down vote.”

Justification 3: National Security

A. US Navy and intelligence agencies want UNCLOS

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“Lastly, the heads of the U.S. Navy and intelligence agencies have testified before the Senate Intelligence Committee that the convention does not impede intelligence-gathering activities; on the contrary, the rights afforded to the United States by the convention significantly empower  U.S. intelligence-gathering abilities.”

B. UNCLOS guarantees rights for US military vessels

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

Why are the provisions and protections of the convention vital to implementing U.S. national defense and maritime strategies? Why now? All six core capabilities of U.S. maritime forces are predicated upon legally certain freedom of navigation and overflight, as defined by the United States and codified in the convention. Joining the convention supports the strategic and operational mobility of American air, surface, and submarine forces. It provides legal guarantees for those forces to transit the high seas, exclusive economic zones, international straits, and archipelagic sea routes during times of crisis. It supports the freedom of those forces to legally conduct military survey, reconnaissance, and intelligence gathering under the terms and conditions the United States prefers. It allows the high-seas interdiction of stateless vessels and illegal activities under frameworks such as the Proliferation Securitym Initiative, using the protocols the United States carefully crafted to conform to the convention. Most recently, this year articles 100 and 105 of the convention have been applied as the basis of an agreement with Kenya to prosecute Somali pirates apprehended in the Indian Ocean.”

C. UNCLOS key to Somali piracy

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“The convention provides two essential and immediate components for responding to piracy off the coast of Somalia. First, the convention permits any state to arrest pirates, seize pirate vessels, and prosecute pirates in the courts of the interdicting naval authority. Second, and equally important, the convention protects the sovereign rights of ocean-going states that participate in antipiracy naval operations in the territorial seas of failed states such as Somalia. This is critical for building international naval flotillas for combating the growing pirate problem in the Indian Ocean.”

D. US loses rights by not being party to UNCLOS

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“As evidenced by  the controversy surrounding the March 2009 confrontation with the Chinese navy in the South China Sea, the United States today forfeits legal authority to other states, some of them less than friendly to U.S. interests, that seek to restrict rights enshrined in the Law of the Sea central to American national security strategy, such as the freedom of navigation. Other examples include proposals by the European Union for mandatory insurance certificates to enter European waters and Australia’s pilotage requirements, both prejudicial to U.S. rights of innocent and transit passage.”

E. No new restrictions on US military

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“Military Operations. U.S. military forces are already legally bound to follow the provisions of convention by virtue of President Reagan’s 1983 Statement on Ocean Policy; therefore, joining the convention will impose no additional restrictions on U.S. military operations. Since the completion of the 1994 agreement, there has been unanimous support for joining the convention by uniformed and civilian national security leaders, including the chairman and Joint Chiefs of Staff, the combatant commanders, and the commandant of the Coast Guard. The public record documenting historical and current support by national security leaders is overwhelming.32”

F. US gov says it won’t hurt us

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“Intelligence Operations. State and Defense Department officials referencing closed hearings indicate that the executive branch, responsible for collecting and the principle consumer of classified intelligence, has no concerns that joining the convention will harm intelligence operations: “The Convention does not prohibit or impair intelligence or submarine activities. Joining the Convention would not affect the conduct of intelligence activities in any way. . . . Our intelligence activities will not be hampered by the Convention.”34”

G. AT: “Tech sharing” That was old convention, they fixed that

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“U.S. Technological Advantage. It is true that the 1982 form of the convention mandated private technology transfer detrimental to U.S. national security and economic interests. That was one of the factors specifically cited when President Reagan rejected the convention. Article 144 of the convention does encourage technology transfer, calls for parties to “cooperate in promoting the transfer of technology and scientific knowledge,” and remains in force following the adoption of the 1994 agreement but does not mandate technology transfer. Such transfer, mandated by Annex III Article 5 of the convention, was eliminated by section 5 of the annex to the 1994 agreement. Additional protection against national security damage through technology transfer is provided by Article 302 of the convention: “[N]othing in this Convention shall be deemed to require a State Party, in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.””

H. Joining UNCLOS helps national security and war on terror

Meg Giles, Special Assistant to the Director of Legislation at Association of the U.S. Navy. MA in International Affairs @ George Washington University, BA political science @ Southwestern December 2009 “Why we need the Law of the Sea treaty” Published by the US Navy pg. 9 http://www.oceanlaw.org/downloads/articles/AUSN-law-of-sea-treaty.pdf [CR]

“Among its other provisions, the Convention also guarantees the right of a member state’s air, surface, and submarine forces to transit the high seas, EEZs, international straits, and archipelagic sea routes, and permits warships to board vessels reasonably suspected of being involved in piracy.6 By ratifying the Treaty, the US would be better able to protect the Navy’s ability to navigate freely the oceans and fulfill its missions. The Navy, therefore, strongly supports ratification. In his statement before the Senate Foreign Relations Committee in October of 2007, Former Chief of Naval Operations Admiral Vern Clark stated, “Joining the Convention now will support and enhance ongoing U.S. military operations, including the continued prosecution of the global war on terrorism. It will enable our armed forces to defend us at home and abroad with legal certainty. It will provide a stable and predictable legal regime within which to conduct our operations today, and realize our vision for the future.”7”

I. US Navy needs navigation rights in order to object to interference from coastal states

David J. Bederman. January 18, 2008. Professor of Law at Emory University AB, Princeton University, MSc, London School of Economics, JD, University of Virginia, Diploma, The Hague Academy of International Law, PhD, University of London. Harvard International Law Journal “The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS” http://meetings.abanet.org/webupload/commupload/IC965000/relatedresources/49_Online_Bederman_1_18_08.pdf [CR]

“And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS,9 has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits)10 have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS. Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party).11 It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively)12 of state behavior – and that standard is UNCLOS.

Justification 4: National Sovereignty

A. Increased US sovereignty

Scott G. Borgerson, May 2009. visiting fellow for ocean governance at the Council on Foreign Relations (CFR). Fmr. Assistant professor at the U.S. Coast Guard Academy. U.S. Merchant Marine officer master’s license, a board member of the Institute for Global Maritime Studies. BS w/ high honors @ U.S. Coast Guard Academy. MALD and PhD in international relations, @ Fletcher School of Law and Diplomacy at Tufts University. “The National Interest and the Law of the Sea” Council on Foreign Relations Downloaded at: http://www.globalsolutions.org/issues/unclos [CR]

“The majority view of the SFRC and the opinion of every major ocean constituency group is that joining the convention is in America’s foreign policy interests. Debating the merits of internationalism versus unilateralism is a great U.S. tradition, but the irony is that the convention actually allows for an expansion of U.S. sovereignty: freedom of movement for a powerful navy; a legal tool for U.S. forces to combat scourges at sea, such as piracy, drug trafficking, and human smuggling; and a process for extending U.S. jurisdiction over a vast amount of ocean space equal to half the size of the Louisiana Purchase.”

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3 Responses to ‘Case of the Week’ 5: UNCLOS

  1. Joseph Samelson says:

    How in the name of all things bright and beautiful is this topical?

    • Andrew says:

      It’s not. At all.

    • cogdebate says:

      Topicality is… disputable, to put it lightly. UNCLOS honestly doesn’t have much to do with Russia specifically, but there are lots of Russia-related reasons to adopt it.

      Here’s how I’d try to defend topicality if I were forced to:

      “1. The key word here is “towards”. That’s a very vague word, and the resolution says “reform its policy towards Russia”, not “reform a policy that is *only* towards Russia.” The wording doesn’t require cases to be *exclusively* towards Russia, as long as they’re towards Russia.

      2. In general, the concept of the United States ratifying UNCLOS isn’t specifically Russia-related. However, we’re not debating the general concept of ratifying UNCLOS; we’re debating the policy of ratifying UNCLOS *right now*. The final card in the 1AC, under Urgency, is tagged “Must ratify UNCLOS to stop Russian seizure of the Arctic.” There are lots of reasons why we should ratify UNCLOS; however, the reason for ratifying UNCLOS *right now* is very specific to Russia. Hence, it is a policy towards Russia.”

      — Daniel

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