UNCLOS Close?

It’s been a very quiet term for the Senate on treaties. But that may be about to change. The Washington Note is reporting that President Bush will soon publicly announce his support for Senate advice and consent to U.S. accession to the 1982 UN Convention on the Law of the Sea (UNCLOS) and the follow-on Implementation Agreement, which fixes objections by various developed states to the original treaty’s deep seabed mining provisions. This comports with rumors I’ve heard that the SFRC is gearing up to try and move UNCLOS through the committee. Taken together, it suggests a real possibility that the United States could join UNCLOS a quarter century after its original adoption–a very intriguing development, especially for those accustomed to thinking that the Bush Administration has some deep seated hostility towards treaties.

Make no mistake–UNCLOS is a big, even foundational, treaty, encapsulating in a single text much of oceans law, including provisions on sovereign rights, freedom of the high seas, fishing, environmental protection, natural resources, shipping, and security. Still, U.S. accession would not actually produce that many changes in substantive U.S. international law obligations. As then-State Department Assistant Secretary John Turner said when the Administration last pushed UNCLOS in 2004, the United States has long-regarded UNCLOS’s provisions as reflective of customary international law with the notable exception of those involving deep seabed mining. Thus, the primary benefit of U.S. accession would not be new substantive obligations, but rather the acceptance of binding dispute settlement pursuant to the treaty, along with the so-called signaling function; U.S. accession would send other states a signal about U.S. commitment to the law of the sea as articulated in UNCLOS in ways not reflected in its customary international law commitments.

So, keep an eye on the White House press room and the Senate calendar in the next few weeks. If UNCLOS moves forward, you can expect to see a big push by various U.S. government agencies, industry, and NGOs for U.S. accession. A few outliers will undoubtedly respond as they have in the past, suggesting the treaty will sacrifice U.S. sovereignty, but frankly I’m a bit skeptical of such claims. Among other things, they ignore a long history of U.S. participation in treaties that had (or have) similar domestic impacts, but which have proven essential to U.S. national interests (see, e.g., the Jay Treaty and its arbitration provisions).

UPDATE: As predicted, the President today did endorse Senate advice and consent to U.S. accession to UNCLOS (available here).