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

Despite the importance of the rule of law, most arguments in the U.S. about the Convention have addressed its expected impact on specific U.S. foreign policy objectives. The arguments of some "Jacksonian" skeptics may well not prevail, as the U.S. appears poised to accept the Convention. Nevertheless, the concerns of Convention opponents explored in Part II are likely to continue to influence U.S. views about foreign policy and oceans issues. America has long construed the Convention to provide maximum navigational freedoms to military vessels and aircraft,69 and will assuredly continue to promote this position. The Bush administration's attempts to limit, as much as possible, the jurisdiction of tribunals operating under the Convention, along with its insistence on the limited nature of the ISA's jurisdiction, suggest a reluctance to embrace new international institutional obligations. Finally, some of the emphasis in U.S. congressional hearings on the importance of "U.S. leadership" could be a shorthand way of signaling that this country may not fully endorse multilateral cooperative or consensus-building initiatives should it join the Convention. Nevertheless, U.S. acceptance of the Convention and the 1994 Part XI Implementation Agreement would be a welcome step toward furthering the rule of law in international affairs.

1. Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter LOS Convention]. As of August 2007, there were 155 parties to the Convention. See International Tribunal for the Law of the Sea, General Information-States Parties, http://www.idos.org/start2_en.html (follow "General Information" hyperlink; then follow "States Parties" hyperlink) (last visited Dec. 22, 2007).

2. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 art. 2(1), July 28, 1994, 1836 U.N.T.S. 3 [hereinafter Part XI Implementation Agreement].

3. For the Bush administration's November 2001 statement supporting U.S. accession to the Law of the Sea Convention and the 1994 Part XI Implementation Agreement, see Law of the Sea and Related Boundary Issues; United Nations Convention on the Law of the Sea; United States' non-party status, 2001 DIGEST, ch. 12, § A(1)(a), at 675-76. The U.S. Commission on Ocean Policy, appointed by President Bush, has also supported U.S. accession to the Convention. See id. at 684; U.S. COMMISSION ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST CENTURY: FINAL REPORT 521 (2004) (Recommendation 29-1). At 2003 hearings before the Senate Foreign Relations Committee, witnesses from the U.S. military, U.S. industry, and environmental groups strongly supported U.S. acceptance of the Convention and the 1994 Agreement. See United Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on Foreign Relations, 108th Cong. (2003), S. Exec. Rep. No. 108-10, at 23-187 (2004) (Annex II) [hereinafter Foreign Relations Comm. Hearing]; see also Hearing Before the S. Select Comm. on Intelligence (June 8, 2004) [hereinafter Intelligence Comm. Hearing] ; Military Implications of the United Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on Armed Services, 108th Cong. (2004), S. HRG. No. 108-796, at 26-122 (2005) [hereinafter Armed Services Comm. Hearing]; The United Nations Convention on the Law of the Sea: Hearing Before the H. Comm. on International Relations, 108th Cong. (2004), H.R. SERIAL No. 108-136 (2004) [hereinafter House International Relations Comm. Hearing]; United Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on Environment and Public Works, 108th Cong. (2004), S. HRG. No. 108-498 (2005) [hereinafter Environment and Public Works Comm. Hearing]. Although the Convention has not come to a vote before the full Senate, the administration has continued to support the Law of the Sea Convention. See Secretary of State Dr. Condoleeza Rice Endorses Law of the Sea, http://lugar.Senate.gov/sfrc/rice_endorsement.html (last visited Feb. 25, 2007). In May 2007, President George W. Bush again "urge[d] the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea." Press Release, White House, President's Statement on Advancing U.S. Interests in the World's Oceans (May 15, 2007), available at http://www. whitehouse.gov/news/releases/2007/05/20070515-2.html (last visited Oct. 4, 2007). The Joint Chiefs of Staff, in June 2007, endorsed U.S. acceptance of the Convention as important to U.S. national security interests. Letter from the Joint Chiefs of Staff to The Hon. Joseph Biden, Jr., Chairman, Senate Foreign Relations Comm. (June 26, 2007), available at http://www.oceanlaw.org/downloads/JCSonLOS.pdf. In September 2007, the Secretaries of Commerce and the Interior joindy "urge[d] favorable Senate action on U.S. accession during this session of Congress." Letter from Dirk Kemptiiorne, Sec'y of the Interior, & Carlos M. Gutierrez, sec'y of Commerce, to The Hon. Joseph Biden, Jr., Chairman, Senate Foreign Relations Comm. (Sept. 26, 2007), available at http://www.oceanlaw.org/down loads/DOC-DOI_Letter_to_Biden.pdf. Since the full Senate did not vote on the Convention during the 108th Congress, when the Senate Foreign Relations Committee held hearings, another vote by that Committee is now necessary to bring the Convention back to the Senate. See Standing Rules of the Senate, S. Doc. No. 106-15, at Rule 30(2) (2000). As this essay goes to press, the Senate Foreign Relations Committee has scheduled new hearings on the Convention for late September and October, 2007. Senate Foreign Relations Comm., Committee Hearings 110th Congress First Session-2007, http://www.senate.gov/~foreign/hearing.html (last visited Oct. 4, 2007).