Navigating Coastlines: The United States & UNCLOS

Saarang Ramabhadran

Edited by Sahith Mochalra, Kira Small, and Roohie Sheikh

The United Nations Convention on the Law of the Sea, more commonly known as UNCLOS, is an international treaty designating how countries operate amongst each other within Earth’s oceans and the vast amount of untapped resources within them. The treaty was adopted in 1982 and since then, 170 parties have acceded to the treaty, –most of whom are members of the United Nations. Critically the United States’ (U.S.) signature remains absent. UNCLOS is designed to serve as a guideline for nations and parties to pursue collaborative freedom amongst the ocean, with respect to environmental regulations, and neighboring parties competing over sovereignty and economic interests [1].

The U.S. should accede to the United Nations Convention on the Law of the Sea to better establish official standing in international maritime disputes. The U.S.’ lack of participation means any official negotiation or dictum is outside of the internationally recognized scope. However, in past years, it has adopted a position of following certain guidelines while remaining a nonmember. 

Legitimizing the United States’ Authority

The U.S. faces a multitude of threats regarding its oceanic territory. For starters, UNCLOS members question the U.S.’ credibility in international maritime disputes or view the U.S. as an outsider attempting to delegate functions of the treaty. This creates issues when the U.S. political agenda aims to uphold a doctrine of peaceful navigation for members as well as an uninterrupted flow of trade for allies [2] Essentially, known competing hegemons like China and Russia–who are signatories to the UNCLOS–will not sit idly and allow the U.S. to control international regulations. The convention lacks a global hegemon like the United States which results in the lack of a mutually agreed forum amongst all global superpowers to discuss international regulations. Due to the discussions or lack thereof, countries end up disregarding the word of the tribunal. For example, in 2016, China rejected a global resolution that the tribunal had ruled in favor of the Philippines. The resolution aimed to halt the military expansion of China in the South China Sea (SCS) [3]. The UNCLOS alongside the International Tribunal of the Law of the Sea lacked the power to completely impose regulations on China’s maritime claims, however, if the U.S. amongst other major signatories were to accede to the convention, the legitimacy of U.S. incentives in the SCS is more likely to come to fruition. The reason for this is the U.S. could foster direct enforcement mechanisms as well as collaborative dialogue. Essentially, due to the U.S. absence other signatories view the convention’s universal claims as null.

Beyond legitimacy, issues arise in the environmental sector as well. Arctic drilling motivation is increasing meaning there is more room for practices that are detrimental to the environment. Many parties to the UNCLOS continue to propose environmental regulations against such behavior that all members of the treaty should uphold, but they continue to be shut down by larger powers with more say in the convention [4]. Without environmental regulations, larger superpowers will proceed with their unsustainable initiatives. The Russian Federation has been a member of UNCLOS since 1997 and in recent decades spilled 30 million barrels of oil on land each year.[4] This is around seven times the amount spilled during the Deepwater Horizon incident.[4] On top of that, every year and a half they leak four million barrels into the Arctic Sea [4]. Russia, amongst other parties, has a clear incentive to pursue Arctic drilling, which means without any sort of appropriate standard and/or regulation, spills that can be detrimental to the environment are bound to happen. Comparatively, the U.S. had a record-breaking year in 2023 regarding clean energy development [5]. This means becoming a signatory would allow us to universally pursue our clean agenda.

A big area of issue for the U.S. is the resolution mechanism that only exists for signatories of UNCLOS. Essentially, freedoms designated within the 200 nautical mile Exclusive Economic Zone are protected by UNCLOS, meaning parties are free to exercise resource extraction within their EEZs to a certain regulated extent. The U.S., however, engages only in de facto compliance with UNCLOS rules. Although this may seem plausible, it poses a plethora of issues when it comes to submitting claims to an international body. The U.S. becomes limited in any formal disputes as the U.S. is unable to access resolutions within the convention like the International Tribunal for the Law of the Sea (ITLOS). This means that in any maritime disputes like that in the South China Sea, the U.S. is reliant on our smaller allies within UNCLOS as well as our military power, which simply is not enough.  In any maritime dispute within the designated zones, the U.S. must rely on its military capabilities and its allies rather than international regulation within UNCLOS as the U.S. is not a signatory [6]. 

Plausible Solution

The U.S. really only has one plausible solution to remain a legitimate and influential actor in international maritime disputes. Firstly, given the legal framework of the UNCLOS, it is inevitably harder for a non-signatory–such as the U.S.–to have any sort of enforcement or leverage when it comes to maritime claims, regardless of whether or not the U.S. is a supporter of the UNCLOS. Without legitimate authorization, the U.S. will always have a roadblock (towards maritime influence/in pursuing its maritime agenda). Ratifying the treaty will grant the U.S. a seat at the council, previously mentioned as the International Tribunal of the Law of the Sea. Being on this council grants us access to organizing multilateral opposition in combating threats to not only our oceans but also breaches in the law of the sea as well as our interests[7]. Becoming a treaty member would help advance U.S. interests in promoting multilateral cooperation on a range of issues globally. Although the U.S. has been on a steady decline towards a less interventional approach to policy, there are still a multitude of recent occasions of the U.S. pursuing multilateral cooperation, which UNCLOS would only help [8]. For example, it would aid in building coalition partnerships in the Global War on Terrorism and the Proliferation Security Initiative, and help support multinational efforts to combat piracy. UNCLOS could directly facilitate the U.S.’ activism in terms of multilateral cooperation, which would in turn directly foster partnership in opposing the Global War on Terrorism as well as the Proliferation Security Initiative [9].

Ratification poses a plausible solution to the long-standing environmental issues, as well as the current lack of activism in terms of regulation. Throughout the last decade, the tribunal has been unable to have any sort of impactful effect on China’s unsustainable construction [10]. More specifically, as China expands globally they continue to build infrastructure in countries that seek funding. The issue is the construction has been very unsustainable and falls completely below the standards that countries like the U.S. aim to uphold [10]. The U.S.' presence in UNCLOS means our own environmental initiatives can be passed on to fellow signatories. Especially when it comes to Arctic incentives, the U.S. amongst other parties can impose safer standards on offshore drilling. On top of that, upon joining UNCLOS the U.S. will be required to share technology. The U.S.' technology when it comes to oil and natural gas provides much more economic and environmental security than other current signatories[11].

The goal of the U.S. is not only to pursue the Arctic but also to maintain its presence in the South China Sea, which may only be possible through ratifying the UNCLOS. This is because a big part of the UNCLOS resolution mechanism is its ability to contest claims, like China’s over the SCS. China wants free will in the entire sea which poses issues to the U.S. military agenda. Currently, the U.S. is solely reliant on its naval presence and diplomatic jurisdiction. Demonstrated through bilateral agreements with Canada and Mexico. As of now, the U.S. is only capable of engaging in Freedom of Navigation Operations, which allows the U.S. to take part in UNCLOS’ enforcement of international law on a larger scale in international waters[12]. The only issue is the lack of ratification leaves the U.S. in an unstable position where legitimacy is underhanded without a recognized international position in maritime matters.

Ratifying UNCLOS is not an easy decision for the U.S. as it could potentially undermine current initiatives due to regulations already imposed by UNCLOS. Whether economically in partnerships with companies such as ConocoPhillips or militarily with the Navy conducting Freedom of Navigation Operations (FONOPs), the issue is a holistic one when considering the breadth of impact for the U.S.’ international actions. However, the magnitude of such regulations may not affect the U.S. on a large scale as the country already voluntarily follows a majority of principles established by the treaty. Therefore, the necessity for ratification stems not from internal regulatory pursuits, but rather from broad geopolitical pursuits. With geopolitical tensions continuing to rise in areas of high economic demand, the delicate balance of global hegemons within UNCLOS is all the more necessary in times of not only economic insecurity but environmental insecurity as well.

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[1] United Nations Convention on the Law of the Sea, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (last visited Feb 19, 2025).United Nations Convention on the Law of the Sea, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (last visited Feb 19, 2025).

[2] Daniel Michaels, Fear that China rules the waves jolts U.S. to pursue ... Fear That China Rules the Waves Jolts U.S. to Pursue Maritime Revival (2024), https://www.wsj.com/politics/national-security/fear-that-china-rules-the-waves-jolts-u-s-to-pursue-maritime-revival-2c4bd8ab (last visited Feb 19, 2025).

[3] Beijing rejects Tribunal’s ruling in South China Sea case (2016) The Guardian. Available at: https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china (Accessed: 31 October 2024). 

[4] (No date) Available at: http://www.greenpeace.org/international/en/campaigns/climate-change/arctic-impacts/The-dangers-of-Arctic-oil/Black-ice%E2%80%93Russian-oil-spill-disaster/ (Accessed: 31 October 2024). 

[5] State of the US Clean Energy Transition: Recent Progress, and What Comes Next, World Resources Institute (Aug. 12, 2022), https://www.wri.org/insights/clean-energy-progress-united-states.

[6] John Kraus. John Kraus is a Research Associate at the Institute for Defense Analyses. He earned his Master of Arts from SAIS in 2022 and was previously a commercial fishing deckhand for five years., Kraus, J. and John Kraus is a Research Associate at the Institute for Defense Analyses. He earned his Master of Arts from SAIS in 2022 and was previously a commercial fishing deckhand for five years. (2023) UNMOORED from the UN: The struggle to ratify UNCLOS in the United States - the SAIS review of international affairs, The SAIS Review of International Affairs -. Available at: https://saisreview.sais.jhu.edu/unmoored-from-the-un-the-struggle-to-ratify-unclos-in-the-united-states/ (Accessed: 31 October 2024). 

[7] Almond, R.G. (no date) U.S. ratification of the law of the sea convention, – The Diplomat. Available at: https://thediplomat.com/2017/05/u-s-ratification-of-the-law-of-the-sea-convention/ (Accessed: 31 October 2024). 

[8] Christopher Chivvis et al., Strategic change in U.S. foreign policy | Carnegie Endowment for International peace Strategic Change in U.S. Foreign Policy (2024), https://carnegieendowment.org/research/2024/07/strategic-change-us-foreign-policy?lang=en (last visited Feb 19, 2025).

[9] Why the U.S. should ratify the law of the Sea Treaty (2024) The Cipher Brief. Available at: https://www.thecipherbrief.com/column_article/why-the-u-s-should-ratify-the-law-of-the-sea-treaty (Accessed: 31 October 2024). 

[10] Schell, O. and Shirk, S.L. (2019) Course correction: - asia society. Available at: https://asiasociety.org/sites/default/files/inline-files/CourseCorrection_FINAL_2.7.19_0.pdf (Accessed: 01 November 2024). 

[11] (No date a) EPA. Available at: https://www.epa.gov/uog (Accessed: 31 October 2024). 

[12] U.S. Navy destroyer conducts freedom of navigation operation in the South China Sea (no date) United States Navy. Available at: https://www.navy.mil/Press-Office/News-Stories/Article/3578783/us-navy-destroyer-conducts-freedom-of-navigation-operation-in-the-south-china-s/ (Accessed: 31 October 2024).