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School of Marine Affairs > Research > Program on Ocean Governance (POG) > Seminar on US Ocean Governance > International Leadership by the US in Marine Affairs

International Leadership by the US in Marine Affairs

William Burke
Professor of Law Emeritus
University of Washington

Following are some comments on the Governance Working Group Issues dated October 8, 2001.

Item 6 is labeled "international leadership by the US in marine affairs including ratification of the Law of the Sea Convention." I assume this statement is prospective in nature. It would be difficult to make the general case that the US has exercised leadership in international marine affairs for the past two decades. This is particularly obvious in the handling of the question of ratification of the Law of the Sea Convention, although to be fair the dominate failure since 1988 is to be seen in the abysmal record of the Senate, not the Executive Branch under the first President Bush and President Clinton.

The signs so far in the present Bush Administration give no reason for optimism that its policy of unilateralism in significant international affairs will make an exception for the LOS treaty. Since, however, the tragedy of September 11 and subsequent events make it abundantly clear that unilateralism is a bankrupt approach to contemporary problems, perhaps there is reason for a glimmer of hope that the Administration and the Senate will take the opportunity to signal a commitment to international cooperation by accepting the LOS treaty.

However this may be, there is now no sufficient reason for the failure of the US to accept the LOS treaty. On the other hand, there are several significant concrete benefits to be realized by immediate Senate action to consent to ratification of this treaty.

A primary gain for the US is that acceptance of the Convention allows for US participation in the several institutions created by the treaty. Of these, perhaps the most important is the Commission on the Limits of the Continental Shelf, the area of major importance for establishing a secure regime for the exploitation of the fuel and other non-living resources of the region. The treaty provides the only recognized means for gaining authority over the area, including not only the method for making decisions but also the criteria to be employed. There is no customary law on this question, therefore any US action would necessarily be unilateral. The US has a strong interest in the Commission since we will wish to extend our continental shelf limit beyond 200 miles in the Bering Sea.

Participation in the work of the International Seabed Authority is also of direct interest to the US. While conventional seabed minerals, such as manganese nodules, are not likely to be important for some years or decades, other nonliving (and perhaps some non-conventional living organisms) resources may be important enough to justify membership in the ISA.

Other institutions of direct interest are the several dispute settlement mechanisms established by the treaty. The International Tribunal for the Law of the Sea is the most prominent of these but not necessarily the most important. Several arbitral tribunals are established and it may benefit the US to have our nationals serve on such bodies, which they cannot do without US membership in the treaty. We are similarly precluded from membership in ITLOS.

Acceptance of UNCLOS is also useful to the US for the substantive principles and concepts it contains. The most noticeable recent demonstration of this point arose from the aerial incident between the US and China in early 2001 involving overflight of the Chinese EEZ by a US surveillance plane. The US position on the lawfulness of this overflight would have been considerably strengthened if we had been able to invoke Article 58 of the LOS Convention which was by design worded to cover just such incidents. China, of course, already accepted the LOS Convention, as have 136 other nations.

Last, but not least, US membership in the LOS treaty provides the opportunity to influence the evolution of this agreement through its interpretation by State practice. Being on the outside, looking in, inhibits that possibility.

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