Publicist

Introduction: Perspectives on the History of U.S. Non-Ratification of the Law of the Sea, and on the Prospects for an Early Reversal

By
Harry N. Scheiber*

[ PDF version ] [ Go to comments ]

The 1982 United Nations Convention on Law of the Sea (UNCLOS) has been called one of the greatest achievements in the history of international diplomacy—an agreement that has largely achieved its ambitious goal of providing what many commentators term “a constitution for the oceans.” The former Secretary-General of the United Nations, Boutros Boutros-Ghali, in 1994 hailed the conclusion of the Convention in the following terms:

The dream of a comprehensive law of the oceans is an old one. Turning this dream into reality has been one of the greatest achievements of this century. It is one of the decisive contributions [and] it will be one of our most enduring legacies.[1]

The United States and the Law of the Sea Convention

By
John B. Bellinger, III*
Law of the Sea Institute
November 5, 2008

[ PDF version ] [ Go to comments ]

Let me begin by thanking David Caron and the other organizers of this conference. I am very pleased to speak to you today about the law of the sea. Now, the first thing to know about this topic is that it is the occasion of endless wordplay. The mere mention of the Law of the Sea Convention, and the puns set sail. I didn’t know the topic well when I joined the Administration in 2001, but it’s one in which I have since been immersed – at times, submerged. And after plumbing the depths of the issue – and diving into the details – I have concluded (now that I’ve come up for air) that joining the Convention is the right thing to do.

Seriously, though, I would first like to share with you the details of the Administration’s concerted efforts to achieve Senate approval of the Law of the Sea Convention. I’ll then discuss some of the law of the sea issues that engage the Legal Adviser’s Office. And I’ll end with some thoughts on the currently “hot” topic of the melting ice in the Arctic region.

The U.N. Convention on the Law of the Sea Turns 27, and American Ratification Is Not in Sight – Still

By
John Briscoe and Peter Prows*
Law of the Sea Institute
November 5, 2008

[ PDF version ] [ Go to comments ]

The United States, almost from its birth, has been a leader in the development of the Law of the Sea.  As the country has grown, the United States has helped build the structure of the modern Law of the Sea while also pushing for the responsible use and management of the oceans. The United States was a principal broker of consensus on many of the key issues that enabled an agreement on the 1982 Convention on the Law of the Sea.  Yet since December of that year, when the Convention was done at Montego Bay, Jamaica, the United States has refused to ratify the Convention. Its voice in the Law of the Sea has been diminished ever since, to the increasing detriment of the United States.

The United States and the Law of the Sea Convention: U.S. Views Concerning the Settlement of International Law Disputes in International Tribunals and U.S. Courts

By
John E. Noyes*

[ PDF version ] [ Go to comments ]

The United States has not yet accepted the Law of the Sea Convention[1] and the 1994 Part XI Implementation Agreement,[2] which is to be read together with the Convention as a single instrument. Most countries, including most industrialized countries, have accepted these treaties, which are central to the international legal order for the oceans. Widespread support for the Convention exists in the United States, across the political spectrum and among businesses, environmental organizations, the military, and government leaders.[3] During George W. Bush’s presidency, both the administration and Democratic leaders supported U.S. accession to the Convention.[4] Yet the remaining opposition has been sufficiently strong thus far to prevent the U.S. Senate from giving its two-thirds advice and consent, a step that is constitutionally required before the United States can accede to the Convention.[5]

The U.S. opposition to the Convention reflects longstanding and deeply held positions of some segments of the U.S. body politic about foreign policy and international law. Although specific points that politically influential organizations have raised to argue against U.S. acceptance of the Convention reflect either a profound misunderstanding of the Convention or an intentional distortion of it, the ideological bases of the opposition are not marginal. Part I of this article discusses these opposition themes. If we understand how opposition to the Convention links to U.S. historical traditions, as well as understand the underpinnings of support for the Convention, we can better appreciate likely U.S. positions – including positions with respect to third-party dispute settlement – should the United States accept the Convention.

The United States will likely view restrictively the jurisdiction of the international judicial and arbitral tribunals authorized to settle disputes under the Convention, and will resist allowing the Convention to apply directly in U.S. courts. Part II of this article examines U.S. attitudes towards the jurisdiction of international courts and tribunals authorized to interpret and apply the Convention, and Part III examines U.S. attitudes towards application of the Convention in U.S. courts. Those who espouse a strict dualist perspective might regard these two Parts as addressing separate legal matters.[6] Nevertheless, as Yuval Shany has written, “national and international courts [are] potentially engaged in common functional and normative enterprises, specifically, the settlement of disputes together with development and enforcement of the rule of law in general, and international law in particular.”[7] It is therefore appropriate to examine U.S. attitudes towards dispute settlement in international courts and tribunals together with U.S. attitudes towards the use of international law in municipal courts.

Finally, Part IV of this article critically evaluates restrictive U.S. positions towards the jurisdiction of international third-party dispute settlement forums under the Convention and U.S. resistance to the direct application of the Convention in U.S. courts.

Non-Ratification of the 1982 LOS Convention: An Aegean Dilemma of Environmental and Global Consequence

By
Nilufer Oral*

[ PDF version ] [ Go to comments ]

I. Introduction

The historic United Nations Convention on the Law of the Sea (“LOS Convention”) was adopted at Montego Bay on December 10, 1982, after nine years of intense negotiations. Of the one hundred and fifty-one states that participated at the conference, one hundred and thirty voted for it, seventeen abstained, and four voted against it.[1] The four states that voted against adoption in 1982 – The United States, Turkey, Venezuela and Israel – have still not ratified the Convention. However, their respective positions towards the LOS Convention differ. For example, notwithstanding an influential minority in the United States Senate against ratification, there is strong support for ratification of the Convention in the United States, including from the present and previous U.S. Presidents.[2] Turkey, on the other hand, maintains its official opposition to ratification of the LOS Convention and unlike the United States has not provided any indication of an intention to ratify the Convention in the near future. The primary reason behind Turkey’s opposition to the final text and its continued reluctance to ratify the Convention is the maritime delimitation quandary between itself and Greece in the Aegean Sea.

This article will examine Turkey’s non-ratification of the 1982 LOS Convention because of its border disputes in the Aegean Sea and analyze whether the provisions in the 1982 LOS Convention on delimitation of maritime boundaries are adequate to resolve the existing boundary dispute between Greece and Turkey. The article will also address the broader question of whether the 1982 LOS Convention fulfilled its mandate to provide a legal framework to peacefully resolve contentious maritime boundary disputes generally. Lastly, this article will consider the consequences of non-ratification and the continued conflict over maritime boundaries in the Aegean Sea, specifically in relation to the protection and preservation of the marine environment and to the broader context of unresolved maritime boundary delimitation issues globally.