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There is certainly no shortage of recent events in world affairs that have involved some aspect of international law. Debates over the legality of possible U.S. military airstrikes against targets in Syria absent a United Nations Security Council Resolution authorization such action is one particularly noteworthy and timely example of the role of international law in world affairs and in U.S. foreign policy. This answer, however, will focus on an ongoing debate within the United States Congress regarding the question of ratification of the U.N. Convention on the Law of the Sea.
In 1982, the United Nations passed the Convention on the Law of the Sea, which is intended to establish a legal framework in which maritime nations, such as the United States, can secure certain rights of navigation in disputed waterways and negotiate the rights over the mining of minerals on the seabed, particularly in oceanic regions well-outside the universally-acknowledged territorial waters of every country with a coastline. Since the Convention’s passage, 164 nations have ratified their consent to abide by the Convention’s legal restrictions. The United States, however, has not consented to ratify the treaty, despite President Bill Clinton’s signing of it in 1994. Under the U.S. Constitution, of course, two-thirds of the U.S. Senate must vote in support of ratification, and that “super-majority” has failed to materialize. In addition to the constitutional requirement for Senate consent, there is almost always some requirement within the United States to amend existing laws or pass new ones in order for the country to be in compliance with the treaty’s provisions. That means the House of Representatives is involved, despite its otherwise lack of role in the treaty ratification process.
The United States has not ratified the Law of the Sea Convention because of opposition, mainly in conservative circles, to the treaty’s restrictions on the United States’ “freedom” to mine the ocean’s floors, to the licensing fees and taxes that would be imposed on the United States for whatever economic benefit derived from deep seabed mining, to the treaty’s requirement that all vessels, including U.S. Navy submarines, to surface when transiting other nations’ territorial waters, and to the general principle of subjecting the U.S. and its navy to international legal provisions that could prove detrimental to sensitive military activities. Ironically, however, the U.S. Navy has long been supportive of U.S. ratification of the treaty, and presidents from both political parties have supported it. Nevertheless, the U.S. Senate continues to reject ratification by two-thirds majority.
As China’s navy expands and improves, and as Russia’s navy returns to active patrols of regions far beyond its borders, the probability of at-sea confrontations with the U.S. Navy is growing. Whether U.S. ratification of the Convention on the Law of the Sea would help or hinder in resolving future maritime disputes is a question that may or may not be answered in the near future.
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