The United Nations Convention on the Law of the Sea (UNCLOS) regulates the use of the seas, which cover 71 per cent of the Earth’s surface. UNCLOS has been signed and ratified by 165 states and the European Union, making it a powerful instrument of international law. However, around 40 countries – for many different reasons – have not acceded to the Convention. Nonetheless, these states are bound by many of its provisions which – as the codification of customary international law – are universally applicable, such as those pertaining to the protection of the marine environment. In addition, a further norm applicable under customary international law entitles states to claim an EEZ even if they have not ratified UNCLOS. The most notable example of a state that has signed but not ratified the Convention is the United States. Although the US President and Administration have long supported ratification, the US Senate has yet to give its consent. As matters stand, however, the Senate is finding it impossible to achieve a majority position in favour of ratification.
In the US, UNCLOS has long been the subject of public debate. Recently, a number of senior officials in the US Navy and Coast Guard called publicly for the US to accede to the Convention. They point out that without accession to the Convention, the US’s only option, in order to assert its rights, is to maintain a military presence on the high seas, but in view of the increasing claims from many other nations to the outer continental shelf, this is certainly not enough. There is a fear that key marine areas with large resource deposits, especially in the Pacific region, will be claimed by other countries and lost to the US. Furthermore, the officials and, indeed, numerous politicians regard ratification as essential in order to maintain the US’s credibility in other maritime disputes and to ensure that the US can negotiate on equal terms. As the US can only enforce claims to continental shelf expansion via UNCLOS and the Commission on the Limits of the Continental Shelf (CLCS), the US has no prospect of long-term legal certainty in maritime matters unless it ratifies the Convention. Above all, if other countries submit overambitious claims to extend their jurisdiction beyond the EEZs – for example, in the Arctic – the US lacks the legal instruments that it needs to take effective counteraction.
The reaction from opponents of accession to UNCLOS came swiftly and was predictably fierce. Numerous Republican politicians, for example, argued that a situation in which licence fees have to be paid to developing countries would be unacceptable. In their view, this newfangled principle of benefit sharing is a bottomless pit that poses a major threat to US companies. So when will the US ratify the Convention? Only time will tell. Other countries have not acceded to the Convention because they are involved in disputes over their maritime boundaries. Iran, for example, is withholding ratification because of disputes over the delimitation of the EEZs in the Caspian Sea, where major oil fields are located. Peru, too, is unwilling to accede to the Convention due to simmering conflicts with neighbouring Chile over the delimitation of the EEZs. What’s more, around 50 years ago – long before the creation of EEZs – Peru laid claim to a maritime domain, extending for 200 nautical miles, as its territorial sea and sovereign territory, and enshrined this in its constitution. If Peru were to accede to the Convention, it would be forced to downgrade this maritime area to the status of an EEZ and would merely enjoy usage rights there in future. This would also require a constitutional amendment, which is politically unattainable in Peru at present.
For many countries, national interests far outweigh common interests. That also explains why the Arctic littoral states frequently resort to symbolic gestures to defend their claims to the resources that lie beneath the ice. Russia courted media attention very effectively when on 1 August 2007, Russian researchers planted the national flag on the Arctic seabed at a depth of more than 4000 metres, underlining Russia’s claim to the territory beyond its EEZ. Shortly before Christmas in 2010, Canadian Immigration Minister Jason Kenney symbolically issued Santa Claus with a Canadian passport, on the grounds that the North Pole is part of Canadian territory, and reaffirmed that “Mr Claus” was now entitled to enter and exit Canada at will. This gesture, although tongue-in-cheek, was intended to underline Canada’s claims to the Arctic and was reported by the media all over the world. Although the competing claims to the Arctic seabed can hardly be described as a bitter dispute, some countries are flexing their muscles, for there is much at stake: new seaways, as well as access to oil and gas fields. Researchers have also found small deposits of manganese nodules in the Arctic, although these are not thought to be economically significant. Ultimately, it is the Commission on the Limits of the Continental Shelf (CLCS) which must decide, based on geological data, whether the national territorial claims are justified or not. It is uncertain, at present, which nations will be permitted to extend their jurisdiction. However, both Canada and Russia recently commissioned new ice-capable naval vessels and awarded contracts for the construction of new Arctic naval bases, not only as a means of safeguard-ing their coastal security but also as a demonstration of power.