U.S. POLICY AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

George Washington International Law Review, The, 2007 by Noyes, John E

Although the U.S. has not yet accepted the United Nations Convention on the Law of the Sea,1 the Convention has attracted support from people in the U.S. with very different perspectives on U.S. foreign policy. Since adoption of the 1994 Part XI Implementation Agreement, which must be interpreted and applied together with the Law of the Sea Convention as a single instrument,2 the Convention has garnered support across a broad range of the political spectrum, including from President George W. Bush.3 It has pppsupport from both Wilsonian "idealists" who favor cooperative international endeavors and those who favor reliance on a strong U.S. military. Why have people with such diverse perspectives supported the Convention?

A related question, the answer to which depends upon one's foreign policy perspective, is why should the U.S. accept the Convention now? Like any legal instrument, the Convention is a product of the historical and political forces of its time, and much has changed since the Convention was negotiated in the 1970s. The Cold War is over. Developing states now have a less socialist orientation than they did when the institutional framework governing seabed mining beyond the limits of national jurisdiction took shape in the 1970s. The current "war on terror" has led some U.S. policy makers to argue that America is justified in pursuing a wide range of unilateral international actions. The Convention either barely addresses or fails to deal with several critical oceans issues that have arisen in the past third of a century, concerning, for example, high seas fisheries conservation, the impact of global warming, underwater cultural heritage, and the exploitation of marine biotechnology resources. So why is there continuing support in the U.S. today for this complex multilateral treaty? Although the U.S. may find international law useful in addressing oceans issues, why should it now join the Convention when it could instead simply pursue bilateral, or regional, or subject-matter-specific treaties?

This essay examines U.S. attitudes toward the Convention. Part I characterizes different U.S. perspectives toward foreign policy and international law, noting how these different viewpoints shape attitudes toward U.S. acceptance of the Convention. Part II then compares three concerns that U.S. Convention opponents have raised (relating to navigational freedom, U.S. participation in international institutions, and U.S. leadership in international affairs) to the perspectives associated with of one of the several different foreign policy approaches. Many followers of historically-predominant U.S. foreign policy approaches do not share the concerns of Convention opponents. However, even if the U.S. does accept the Convention, views of Convention skeptics may well influence how the U.S. interprets the instrument and interacts with other States Parties.

I. THE CONVENTION AND U.S. ATTITUDES TOWARD FOREIGN POLICY AND INTERNATIONAL LAW

Those who take a consequentialist approach toward international law and international relations ask whether the benefits of U.S. accession to the Convention outweigh any costs.4 They typically conclude that the balance tips decidedly toward U.S. accession. The significant substantive benefits to the U.S.-found in the Convention's provisions concerning the 200-mile exclusive economic zone (EEZ), the broad continental shelf, environmental protections, and increased protections for navigation-are familiar. The concern that some of these benefits, especially those concerning navigation, are not firmly established customary international law helps explain the continuing support for the Convention in the U.S. .

Yet in reflecting on why the Convention continues to attract widespread support in the U.S. (and on why the U.S. has not yet accepted the Convention), the consequentialist approach is a blunt instrument. We need a more nuanced view of U.S. foreign policy perspectives. Exploring the values underlying different U.S. foreign policy perspectives can reveal sources of support for the Convention and explain lingering U.S. opposition to the Convention. Exploring these values can also help us understand the positions taken in the proposed understandings and declarations attached to the 2004 Senate Foreign Relations Committee recommendation that the U.S. Senate give its advice and consent to accession to the Convention.5

Recent scholarship illuminates how the U.S. historically has embraced several different, and distinctively U.S., approaches to questions of international law and foreign policy. Walter Russell Mead, for example, has analyzed four traditions of U.S. foreign policy, which he labels "Hamiltonian," "Jeffersonian," "Wilsonian," and "Jacksonian."6 The Hamiltonian tradition "sees the first task of the American government as promoting the health of American enterprise at home and abroad."7 The Jeffersonian school of thought regards "the preservation of American democracy in a dangerous world as the most pressing and vital interest of the American people," while the Wilsonian tradition, which has been receptive to international institutions, sees "a moral and a practical duty" on the part of the U.S. "to spread its values through the world."8 Finally, the Jacksonian tradition "represents a deeply embedded, widely spread populist and popular culture of honor, independence, courage, and military pride."9 Similarly, U.S. approaches to international law have also varied widely. Professor Mark W. Janis has analyzed nineteenth-century American views on international law by examining the roles of academics, lawyers, judges, Utopians, scientists, and diplomats.10 Among these groups, the reception to and interpretation of international law ranged from extreme skepticism and dismissal to an embrace of international law's potential for developing universal norms and furthering the peaceful resolution of disputes. The extensive debates in the U.S. over the complex, multifaceted Convention reveal the influence of some of these historical approaches.11