Is US on a Quandary?

The United Nations Convention on the Law of the Sea or UNCLOS was signed in 1982 and formally it took effect in 1994 with over 160 countries joining to date along with members of the European Union and the United Nations Security Council, including China sans the United States. The UNCLOS defined the parameters governing sea boundaries and demarcations, the rights on the use of the sea for commerce, research, environment protection, mining, extraction of marine life and exploration of the seabed among others. The philosophical basis of the convention, in the words of the preamble, is to “contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries.” The convention declares that the deep seabed and its resources are the “common heritage of mankind” and may be mined only “for the benefit of mankind as a whole, irrespective of the geographical location of States.

The United States has not ratified or acceded to the UNCLOS to this date since they find the same to be inimical to the US interest and its corporations, particularly on the following aspect:

If the United States would engage in seabed mining it will submit itself under the jurisdiction of the International Seabed Authority which determines rights to seabed mining, and hence, has the power to issue strict regulatory requirements, including the imposition of fees and royalties for the mining activities of American companies. Such restrictions and impositions are believed to be incompatible with U.S. economic interests. The convention provides that the fees and royalties will be used to fund the Authority’s operation and the rest to be redistributed to developing countries under the philosophy that the deep seabed and its resources are the common heritage of all mankind. 

The Law of the Seas restrictions would interfere with U.S. military interests.

The Law of the Sea’s taxation scheme for exploitation of resources within a nation’s exclusive economic zone would redistribute revenues unfairly.

The treaty would limit U.S. sovereignty.

The United States objection to UNCLOS is embodied in the foregoing arguments suggesting that its own interest is paramount viz a viz the rule of law which the UNCLOS hopes to establish. The argument seems to have created a perception that the United States interest and well-being precedes, and is over and above those countries that acceded and ratified the UNCLOS. It projects exceptionalism... that its actions cannot be regulated. The US has appeared to have accustomed itself to this view being the largest in economy and military might for quite a long time.

The dilemma is that China seemingly has adopted the same perception. It has abandoned and junked the UNCLOS by its refusal to be a subject to its restrictions and jurisdiction. It is likely that China is leaning on the same arguments as the United States. If the US can refuse to participate as a subject under international norms and rules, why can’t China? It is an economic and military power in its own right and similarly has the capability to project the “might-makes-right diplomacy” which could explain China’s aggressive behavior at the East and the South China Sea.

How can it be possible for the US to ask China to observe the rule of law if the US refuses to accept the same for decades? Where will the US get the ascendancy to prevent China to assert itself at the South China Sea or elsewhere when it reserved the right to do the same while clinging on to the old customary law of the sea? If the US has a righteous argument, then China may also be righteous. What will happen if every country that rises to the level of economic and military dominance would adopt the same argument? What would UNCLOS be? Will it become an international bureaucracy to restrict the weak and the less powerful?

The UNCLOS and its framework are supposed to create a rule-based international norm and order. The same rules whereupon the US preeminence is rested. There is more at stake if the US will not accede and ratify the convention. There is more to lose than economic gain, and it is intangible. There is a folk saying, "In order to lead, one has to Live the Lead".