The Asia-Pacific Journal | Japan Focus Volume 15 | Issue 13 | Number 2 | Article ID 5051 | Jul 01, 2017

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U.S. Accession to the Law of the Sea Convention? A Challengefor America’s Global Leadership

Roncevert Almond

Abstract

This article reviews the potential for UnitedStates accession to the United NationsConvention on the Law of the Sea (UNCLOS)under the current U.S. leadership, theadministration of President Donald J. Trumpand the Republican-controlled Congress. Thestrategic significance of U.S. ratification ofUNCLOS is demonstrated by U.S. claims andrights in areas subject to geopoliticalcontestation such as the Arctic and SouthChina Sea. More broadly, the United States hasa compelling interest in preserving theinternational order and protecting the globalcommons, as embodied in the terms of thetreaty. Despite clear evidence that ratificationis in the U.S. national interest, UNCLOS facesthe obstacle of continued Senate inaction andthe chal lenge of a domestic pol i t icalatmosphere suspicious of international law andinstitutions. President Trump, as a Republicanleader and populist dealmaker, may be well-positioned to overcome domestic politicalopposition and achieve a vital U.S. foreignpolicy objective that has eluded his WhiteHouse predecessors.

Key words: UNCLOS, International Law,Treaty, Donald Trump, South China Sea, Arctic,Global Commons, Territorial Conflicts

When at the steps of the Louvre, turn your gazetoward Rue de Rivoli, to a work of Parisian art,t h e P a l a i s - R o y a l(https://www.google.com/maps/place/Le+Palais+Royal/@48.8628622,2.3330139,965m/data=!3

m1!1e3!4m5!3m4!1s0x0:0xcdcb526c397f16f5!8m2!3d48.8637566!4d2.3371267) (originallythe Palais-Cardinal), the former residence ofCardinal Richelieu. Richelieu is credited witharticulating the principle of raison d’État, thenational interest, as a transcendent entity, anideal above and beyond the private concern ofstatesmen. As Louis XIII’s chief minister,during the religious wars of the 17th century,he rose above confessional loyalties, allyingCatholic France with Protestant powers inorder to maintain the European balance ofpower . In the Tes tament Po l i t i que(http://www.editions-perrin.fr/livre/testament-politique/9782262035921), Richelieu’s politicalmanual, he observed: “The public interest mustbe the sole end of the pr ince and hiscouncilors.”

In Washington today, we have f reshopportunities to assess the raison d’État asdefined by the current U.S. leadership: the newTrump administration and a Republican-controlled Congress. One significant measurewill be whether the United States finallyratifies the United Nations Law of the SeaConvention (“UNCLOS” or the “Convention”),the comprehensive treaty regime that governsactivities on, above and below the world’soceans. Although the United States was anoriginal architect of the treaty, Senate adviceand consent to ratification has remained stalledthrough three successive presidentialadministrations. For more than 20 years thenational interest has fallen victim to theconfess iona l na ture , the hardeneddoctrinarism, of modern American politics.

Now a powerful tide of populism has swept

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over the banks of the Potomac – one that issuspicious of globalization, international law,and technocratic bodies. A heightened sense ofnationalism is threatening to contractWashington’s view of the global order and theUnited States’ role therein. The recent U.S.withdrawal from international agreementsi n v o l v i n g g l o b a l t r a d e(https://www.washingtonpost.com/business/econ o m y / w i t h d r a w a l - f r o m - t r a n s - p a c i f i c -p a r t n e r s h i p - s h i f t s - u s - r o l e - i n - w o r l d -economy/2017/01/23/05720df6-e1a6-11e6-a453-19ec4b3d09ba_story.html) and climatec h a n g e(https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html?_r=0) issymptomatic of this dynamic. In this context,can Congress elevate the national interestabove narrow partisan aims? Will PresidentDonald J. Trump exercise the necessaryleadership to realize an objective that haseluded his White House predecessors? OnlyWashington can address these questions. Makeno mistake, though, the answers will have aglobal ripple effect, from the melting plates ofthe Arctic Ocean to the choppy waves of theSouth China Sea.

From Insider to Outsider

Following nearly a decade of negotiations,UNCLOS was completed on December 10, 1982at Montego Bay, Jamaica. Even at that time, theUnited States refused to sign the treaty(http://www.nytimes.com/1982/07/10/world/us-will-not-sign-sea-law-treaty.html). This despitethe fact that America was the largestbeneficiary in terms of territorial gains underthe newly codified regime. The United States,along with other industrialized states, tookissue with aspects of the treaty (Part XI), whichdealt with deep seabed resources beyondnational jurisdiction. Largely at Washington’sinstigation, negotiations continued and resultedin the Agreement relating to Implementation ofP a r t X I o f t h e C o n v e n t i o n(http://www.un.org/depts/los/convention_agree

ments/convention_overview_part_xi.htm) (1994Agreement), completed in New York, July 28,1994.

Determining that the remaining deep seabedissues were resolved, on October 7, 1994,Pres ident B i l l C l in ton t ransmi t ted(https://www.foreign.senate.gov/imo/media/doc/treaty_103-39.pdf) the Convention and the1994 Agreement to the Senate for advice andconsent. On November 16, 1994, UNCLOSentered into force, but without accession(https://treaties.un.org/pages/overview.aspx?path=overview/glossary/page1_en.xml) by theUnited States. The 1994 Agreement enteredinto force on July 28, 1996, also without U.S.ratification. To date, the treaty remains one off o r t y - f i v e t r e a t i e s(https://www.state.gov/s/l/treaty/pending/) (onedating back to 1945) awaiting Senate action –an institution once referred to as the “world’sg r e a t e s t d e l i b e r a t i v e b o d y(https://www.c-span.org/video/?c4504906/us-senator-orrin-hatch-restoring-united-states-senate-worlds-greatest-deliberative-body).”

As a result, the United States remains off thel i s t o f 1 6 8 s t a t e p a r t i e s(https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&lang=en) to UNCLOS, a listwhich includes all other major maritime powerssuch as Russia and China. In practice, theUnited States has accepted and complies withnearly all the treaty’s provisions (though it isformally bound by none).

For example, on March 10, 1983, PresidentRonald Reagan relied upon UNCLOS wheni s s u i n g P r o c l a m a t i o n 5 0 3 0(https://www.archives.gov/federal-register/codification/proclamations/05030.html) establishingthe U.S. exclusive economic zone (EEZ)(https://www.nauticalcharts.noaa.gov/csdl/mbound.htm) in the Atlantic, Pacific and Arctic. TheU.S. EEZ is the largest in the world, spanningover 13,000 miles of coastline and containing

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3.4 mi l l ion square naut ica l mi les o focean—larger than the combined land area ofall fifty states, according to the U.S. NationalOceanic and Atmospheric Administration(http://www.gc.noaa.gov/documents/2011/012711_gcil_maritime_eez_map.pdf). On the samedate, President Reagan also issued the UnitedS t a t e s O c e a n s P o l i c y S t a t e m e n t(https://www.state.gov/documents/organization/143224.pdf), supported by National SecurityD e c i s i o n D i r e c t i v e 8 3(https://fas.org/irp/offdocs/nsdd/nsdd-83.pdf),which documents the U.S. view that UNCLOSreflects customary international law and fulfilsU.S. interest in “a comprehensive legalframework relating to competing uses of theworld’s oceans.” Successive presidentiala d m i n i s t r a t i o n s – R e p u b l i c a n(https://fas.org/irp/offdocs/nsd/nsd49.pdf) andD e m o c r a t(https://fas.org/irp/offdocs/pdd/pdd-36.pdf) –have relied upon Reagan’s precedent to codifyU . S . E E Z c l a i m s(https://www.law.cornell.edu/cfr/text/33/2.30)and legitimize the Freedom of Navigation( F O N ) P r o g r a m(https://www.state.gov/e/oes/ocns/opa/maritimesecurity/) in global hot spots like the South andEast China Seas.

So even as the United States invokes UNCLOSto proclaim broad territorial gains, assert thefreedom of navigation, and challenge excessivemaritime claims, Washington has no seat at thetable in protecting U.S. rights and claimswithin the treaty’s institutional framework. As anon-party, Washington remains on the outsidelooking in as the international communitymoves forward in defining the legal landscapeaffecting over 70 percent of the world’ssurface.

Identifying the National Interest

To the extent that the United States relies oncustom, as supported by power, to protect itsinterests, there are material benefits to free

riding from the UNCLOS regime. As I havenoted elsewhere, however, the law of the seahas not followed a l inear progression(http://thediplomat.com/2016/05/lords-of-navigation-grotius-freitas-and-the-south-china-sea/)and customary international law is subject tov a r i a n c e a n d c o n t e s t a t i o n(http://thediplomat.com/2015/07/mandate-of-heaven -an -ad i z - in - the - south -ch ina - sea / ) .Moreover, arguments against accession ignorethe significant costs that the United States hasincurred and continues to pay by remaining anon-party. Put another way, in determining thenational interest, we have to fully account forthe material advantages provided by accessionto the Convention.

Ratification will give the United States a directvoice in UNCLOS bodies like the InternationalTr ibunal for the Law of the Sea, theCommission on the Limits of the ContinentalShelf, and the International Seabed Authority.For ins tance , a t a recent gather ing(https://www.youtube.com/watch?v=41Rckjuiwh0) at the American Society of InternationalL a w ( A S I L ) , D o u g l a s B u r n e t t(http://www.squirepattonboggs.com/en/professionals/b/burnett-douglas-r), a maritime attorneyand advisor to the International CableProtection Committee, explained that, in thecurrent landscape, U.S. telecommunicationscompanies are forced to seek foreign statesponsors to voice their concerns in UNCLOSdisputes over undue interference by coastalstates to the freedom to lay undersea cables.An estimated 98 percent of worldwide internetd a t a(https://www.isa.org.jm/sites/default/files/files/documents/techstudy14_web_27july.pdf) istransmitted through the web of fiber opticcables lying on the ocean floor, which are thearteries of the global economy, and, therefore,a significant U.S. concern.

In addition, UNCLOS reflects traditional U.S.policy (https://fas.org/sgp/crs/row/RL32185.pdf)with respect to living marine resource

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management, conservation, and exploitation.For example, from within the treaty, the UnitedStates can more effectively exert its leadershipin managing depleted fish stocks, whichmigrate internationally across maritime zonesand the high seas. Organizations as disparatea s t h e W o r l d W i l d l i f e F u n d(https://www.worldwildlife.org/press-releases/president-urges-senate-to-take-final-step-for-u-s-to-join-law-of-the-sea) and the U.S. Chamber ofC o m m e r c e(https://www.foreign.senate.gov/imo/media/doc/Donohue%20Testimony.pdf) have stronglysupported U.S. accession. According to JohnN o r t o n M o o r e(https://content.law.virginia.edu/faculty/profile/jnm9s/1192475), director of the Center forOceans Law and Policy at the University ofVirginia, since the U.S. already follows thetreaty , the cos ts o f compl iance areinsignificant, particularly when weighedagainst the U.S. capacity to influenceinstitutional development in global maritimepolicy.

More broadly, the UNCLOS regime is part ofthe bedrock of the U.S.-led liberal order. As G.John Ikenberry argued in After Victory(http://press.princeton.edu/titles/6981.html),since the Congress of Vienna, leading stateshave employed institutional strategies asmechanisms to establish restraints on arbitrarystate power and embed a favorable andresilient international system. In this instance,the Convention and 1994 Agreement werenegotiated during a time of U.S. ascendanceand Western unity in international affairs. AtA S I L , M y r o n N o r d q u i s t(http://cnsl.virginia.edu/myron-h-nordquist),Associate Director of the Center for OceansLaw and Policy, articulated how UNCLOSreflects important U.S. interests regardingrestraints on economic exclusive zone,continental shelf resources, innocent passageacross the territorial waters, the passage rulesfor transiting straits and archipelagic sea lanes,and, of course, the high seas freedoms. U.S.

ratification will serve to “lock in” theseadvantages affecting the global commons, andnegotiated by the United States from a positionof primacy in world affairs.

The strategic necessity of preserving U.S.national interests via accession to UNCLOS ismost evident in the evolving waters of the Articand South China Sea.

The Arctic and the South China Sea

Climate change is heating up the race for theArctic as receding sea ice gives way toincreasing human activity. In addition toa d v a n c i n g n e w s e a l a n e s(https://www.nytimes.com/interactive/2017/05/03/science/earth/arctic-shipping.html?_r=0),nations bordering the Arctic Ocean are seekingto develop offshore resources, particularly inthe energy sector . UNCLOS (Part VI(http://www.un.org/depts/los/convention_agreements/texts/unclos/part6.htm)) gives thecoastal state sovereign rights over theresources of its continental shelf. TheConvention also permits a coastal state with abroad continental margin to establish a shelflimit beyond 200 nautical miles based onspecifically defined criteria under UNCLOS( A r t i c l e 7 6(http://www.un.org/depts/los/convention_agreements/texts/unclos/part6.htm)) that take intoaccount the geophysical characteristics of theseabed and subsoil. Any such claim to anextended continental shelf is subject to therev iew and recommendat ions of theCommission on the Limits of the ContinentalShelf. The five Arctic coastal states – theUnited States, Canada, Russia, Norway, andDenmark (via its Greenland territory) – havemade or are in the process of preparingsubmissions to the commission.

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U.S. Extended Continental Shelf (ECS) Map

According to the U.S. Extended ContinentalS h e l f T a s k F o r c e(https://www.continentalshelf.gov/about/index.htm), an interagency governmental body,preliminary studies indicate that the U.S.extended continental shelf is at least onemillion square kilometers – an area about twicethe size of California. The United States hasextended continental shelves in severaloffshore areas, including in the Arctic Oceannorth of Alaska, the Atlantic East Coast, theBering Sea, Pacific West Coast, and the Gulf ofMexico.

Given that the United States has not ratifiedUNCLOS, however, U.S. nationals may notserve as members of the Commission on theL i m i t s o f t h e C o n t i n e n t a l S h e l f(http://www.un.org/depts/los/clcs_new/commission_members.htm#Members). It is not clearwhether the United States, as a non-stateparty, can even make a legally recognizedsubmission to the commission to assert itsclaim and fully protect its proprietary rightsand energy interests such as in the Arctic. Incontrast, Russia, which may be entitled toalmost half of the Artic region’s area andcoastline, has already made its submission for

vastly extending its continental margin(http://www.un.org/depts/los/clcs_new/submissions_files/rus01/RUS_CLCS_01_2001_LOS_2.jpg), including a claim to the Lomonosov Ridge(http://www.telegraph.co.uk/news/worldnews/europe/russia/11782413/Russia-claims-resource-rich-swathe-of-Arctic-territory.html), anundersea feature spanning the Arctic fromRussia to Canada. Russia and Canada are thetwo countries with which the United States haspotentially overlapping extended continentalshelf claims.

This maritime boundary dispute is no smallmatter. The U.S. Geological Survey estimates(http://science.sciencemag.org/content/324/5931/1175.full) that the Arctic holds 22 percent ofthe world’s undiscovered oil and gas,amounting to more than 412 billion barrels ofoil equivalent. Legal certainty in maritimedelimitation is critically important for Arcticstates and their respective energy companies.On June 8, 2012, Rex Tillerson, as chairmanand CEO of ExxonMobil, wrote to the SenateF o r e i g n R e l a t i o n s C o m m i t t e e(https://seasresearch.wordpress.com/2016/12/15/u-s-secretary-of-state-nominee-tillerson-on-los-convention-in-2012/) to vociferously urgeU.S. accession to UNCLOS:

“Perhaps the best example of the need forcertainty in an area with great unexploredpotential involves the Arctic Ocean…Severalcountries, including the United States, areprovided with a claim to extended exploitationrights under the application of UNCLOS in theArctic. The legal basis of claims is an importantelement to the stability of property rights.”

In the absence of treaty ratification, Tillersonnoted that the United States suffers from thedual disadvantage of having both a cloud overthe international status of U.S. claims and aweakened ability to challenge other states’conflicting claims.

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Arctic National Boundary Claims Map

As a sovereign state, the United States canobject to overlapping claims and take action inthe Arctic consistent with international law.Awkwardly, however, arguments againstUNCLOS ratification must turn to support fromthe International Court of Justice, which hasruled (Nicaragua v . Columbia, 2012(http://www.icj-cij.org/docket/files/124/17164.pdf)) that continental shelf rights exist as amatter of fact and do not need to be expresslyclaimed. Even if custom provides one remedy, acontract is better than a handshake – more soin a world of power and interdependence(https://www.amazon.com/Power-Interdependence-World-Politics-Transition/dp/0316489360).Moreover, the Arctic coastal states, includingthe United States, have positively affirmed(http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf) that the law of the seaprovides the “legal framework” for resolvingo v e r l a p p i n g t e r r i t o r i a l c l a i m s .Intergovernmental bodies like the ArcticC o u n c i l(http://www.arctic-council.org/index.php/en/about-us/arctic-council/faq), while useful formultilateral cooperation, lack authority forresolving territorial conflicts. As the futuresecretary of State, Tillerson, wrote to theSenate: “UNCLOS can provide an efficient,comprehensive legal basis for the settlement of

these conflicting claims, thus providing thestability necessary to support expensiveexploration and development.”

The South China Sea is another area of heatedcontestation where UNCLOS serves as theguidepost for clarity. Of notable importance isthe ruling from the South China Sea arbitration(http://www.pcacases.com/web/view/7) thatUNCLOS comprehensively allocates rights tomaritime areas thereby precluding historicclaims like China’s “Nine-Dash Line.” From thisprinciple, the arbitral tribunal systematicallyr e f u t e d(https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf)China’s extensive claims and actions in theSouth China Sea beyond the treaty’s carefullycrafted limitations. In the view of Washington,these limitations include undue attempts tocurtail the freedoms of navigation andoverflight in EEZs. Notably, China takes anopposing view and asserts the ability toprohibit foreign military operations in itsclaimed EEZs. Thus, although, in the past, theUnited States has officially remained neutral(http://timesofindia.indiatimes.com/world/us/John-Kerry-says-US-neutral-on-South-China-Sea-w a n t s - C h i n a - t o - f o l l o w -laws/articleshow/53394286.cms) on competingclaims in the South China Sea, Washington hasa compelling national security interest inupholding the substance of the arbitraltribunal’s ruling.

Like U.S. claims in the Arctic, the UnitedStates’ legal rights in the South China Sea arenot academic. As reported by Ronald O’Rourke(http://www.andrewerickson.com/wp-content/uploads/2017/04/CRS_ORourke_China-Maritime-EEZ-Disputes_20170410_R42784.pdf), a U.S.naval affairs analyst, the EEZ legal disputebetween Washington and Beijing has led tosignificant confrontations between Chinese andU.S. ships and a ircraft in and aboveinternational waters. For example, in August2014, a Chinese J-11 fighter dangerously

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i n t e r c e p t e d(https://www.nytimes.com/2014/08/23/world/asia/us-says-chinese-fighter-jet-confronted-american-navy-plane.html?_r=0) a U.S. P-8APoseidon, a naval reconnaissance aircraft,o p e r a t i n g i n t h e S o u t h C h i n a S e aapproximately 117 nautical miles east ofHainan Island. Beijing has repeatedlyattempted to link security prerogatives with thefunctional jurisdiction of maritime zones, likeEEZs, by limiting high seas freedoms, even tothe extent of threatening unduly restrictiveaircraft defense identification zones (ADIZs)(http://thediplomat.com/2015/07/mandate-of-heaven-an-adiz-in-the-south-china-sea/) ininternational airspace. Thanks to the arbitraltribunal’s artful debunking of the nature ofChinese-claimed maritime features and relatedentitlements, there is greater legal clarity onU.S. operational rights in the South China Sea.For instance, although some Chinese-claimedfeatures are entitled to a territorial sea (12nautical miles) none of the features in theSpratly Islands or Scarborough Reef generatean EEZ (200 nautical miles) or continentalshelf. By formally joining UNCLOS, the UnitedStates will be in a stronger position to supportthe ruling of the arbitral tribunal in the face ofopposing action from China.

South China Sea Arbitration, MaritimeEntitlements Map

More broadly, because substantial portions ofthe world’s oceans are claimable as EEZs,universal adoption of the Chinese positionwould significantly alter the U.S. military’sability to sail and fly worldwide. These debatesover high seas freedoms and EEZs are likely tocontinue. For example, as I wrote in theHarvard Nat iona l Secur i ty Journa l(http://harvardnsj.org/wp-content/uploads/2016/02/Almond-PUBLISH.pdf), the so-called“Castaneda formula” under UNCLOS (Article5 9(http://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm)) opens the doorfor further articulation of EEZ functionaljurisdiction and any potential limitation on the

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high seas freedoms. Under this formula, adiplomatic compromise, in cases where theConvention “does not attribute rights orjurisdiction to the coastal State or to otherStates within the exclusive economic zone,” anyconflicts regarding EEZ functional jurisdictionshould be resolved on the “basis of equity” andin light of “all the relevant circumstances,taking into account the respective importanceof the interests involved to the parties as wellas to the international community as a whole.”Defining the so-called “residual rights” ofstates requires interpreting what rights areincluded in the treaty’s text as well as whatrights are omitted. The United States can moreeffectively anticipate and shape these debatesimpacting U.S. national security as a stateparty to UNCLOS.

EEZ Claims World Map

In a twist, U.S. opponents of ratification mayview the South China Sea case as supportingtheir position for remaining outside ofUNCLOS. One of Beijing’s chief objections(http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml) was that the arbitraltribunal should not have intervened, arguingthat the dispute essentially involved delimitingmaritime boundaries, which would fall outsidecompulsory dispute settlement pursuant to adeclaration China made under UNCLOS

(Article 298(1)(a)(i)). As I explained previously(http://thediplomat.com/2016/07/interview-the-south-china-sea-ruling/), the arbitral tribunalwas careful to l imit i ts discret ion todetermining whether certain Chinese-claimedfeatures – particularly in relation to the SpratlyIslands and Scarborough Shoal – couldgenerate maritime entitlements as high-tidefeatures.

The arbitral tribunal, however, could havedeclined to even rule on these issues in light ofthe impact an analysis on maritime featuresand entitlements would implicitly have onChinese boundary claims. By analogy, underthe U.S. legal system, courts defer certain“ p o l i t i c a l q u e s t i o n s(https://www.law.cornell.edu/supremecourt/text/369/186)” because the matter is consideredunsuited to judicial inquiry, and moreconstitutionally appropriate for settlement bythe political branches. While the arbitraltribunal may have been technically correct onthe legal merits in the case, UNCLOS faced agreater institutional harm if China had followedthrough on Beijing’s threat to withdrawal(http://www.japantimes.co.jp/news/2016/06/21/national/politics-diplomacy/beijing-indicates-may-exit-u-n-sea-convention-south-china-sea-ruling-disappoints/) from the treaty. The factthat China did not withdraw suggests that thebalance of interests favored continuedparticipation in UNCLOS, a calculus that couldfurther tilt as Beijing advances its blue-waternavy.

U.S. critics of UNCLOS may perceive the SouthChina Sea scenario as prime evidence ofmeddling by an international court. MyronNordquist offered a hypothetical in which theUnited States ratifies and submits a similard e c l a r a t i o n(https://www.gpo.gov/fdsys/pkg/CRPT-108erpt10/html/CRPT-108erpt10.htm), but in relation toexcluding disputes over military activities fromcompulsory dispute settlement (Article2 9 8 ( 1 ) ( b )

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(http://www.un.org/depts/los/convention_agreements/texts/unclos/part15.htm)). Despite such adeclarat ion and U.S. ob ject ions , aninternational tribunal may attempt to intervenein a dispute where another state partychallenges U.S. FON operations in its EEZ.Other potential controversies could includerevisiting U.S. EEZ claims in the Pacific – forexample, in relation to Howland and BakerIslands, Jarvis Island, Johnson Atoll, or PalmyraAtoll and Kingman Reef – based on the arbitraltribunal’s analysis of rocks and islands in theSouth China Sea. Even if you believe that suchfact patterns seem improbable, Americanopponents of UNCLOS and international lawmay seize upon the South China Sea arbitrationas a dangerous harbinger.

During his confirmation hearing, SecretaryTillerson backed away from his 2012 letter(http://www.thisweekinimmigration.com/uploads/6/9/2/2/69228175/hearingtranscript_senateforeignrelationstillersonconfirmationhearing_2017-01-11.pdf), acknowledging domestic critics ofinternational courts. General James Mattis wass i m i l a r l y c i r c u m s p e c t(https://www.armed-services.senate.gov/imo/media/doc/Mattis%20APQ%20Responses_01-12-17.pdf) before the Senate. Even the abstractthreat of international court jurisdiction resultsin theatrics in American politics. To recall, inr e s p o n s e t o t h e R o m e S t a t u t e(https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-57 5 2 - 4 f 8 4 -be94-0a655eb30e16/0/rome_statute_english.pdf), Republican Senator Jesse Helms sponsoredthe American Service-Members Protection Act(https://2001-2009.state.gov/t/pm/rls/othr/misc/23425.htm), which was affectionately called the“The Hague Invasion Act.” There are those inBeijing that may share the late senator’ssentiments.

The Domestic Trump Card

F o r a W h i t e H o u s e u n d e r s i e g e(http://www.smh.com.au/world/trumprussia-te

m p e r s - f l a r e - a t - a - w h i t e - h o u s e - u n d e r -siege-20170516-gw6eoa.html), UNCLOSratification may present an opportunity for aspecific foreign policy achievement. After allthe United States is engaged in an unequalbargain: adhering to the terms of UNCLOSwithout enjoying the benefit of shaping thetreaty’s rules or institutions. But the Trumpadministration has already demonstrated aclear penchant for withdrawing frominternational agreements – such the Trans-P a c i f i c P a r t n e r s h i p(https://www.whitehouse.gov/the-press-office/2017 /01 /23 /p res iden t i a l -memorandum-regarding-withdrawal-united-states-trans-pacific), a multilateral trade agreement, andt h e P a r i s A g r e e m e n t(https://www.whitehouse.gov/the-press-office/2017/06/01/president-trump-puts-american-jobs-first), a global climate accord. As noted above,the Congressional nomination testimonies ofSecretaries Tillerson and Mattis provide littlecomfort. If the Trump administration were tooppose UNCLOS ratification it would be aremarkable and deplorable break in bi-partisanpresidential leadership.

Even assuming the Trump administration’ssupport, accession will not come easily.According to a Congressional report(https://fas.org/sgp/crs/misc/RL32528.pdf), inthe course of U.S. history, only 1,100 treatieshave been ratified in comparison to over 18,500r e p o r t e d(https://www.state.gov/s/l/treaty/text/index.htm) executive agreements. Senate inaction hasp r o v e n t o b e a v e r y e f f e c t i v e v e t o(http://heritageaction.com/2012/07/heritage-action-sinking-law-sea-treaty/). Even treaties thatf l o w f r o m A m e r i c a n l e a d e r s h i p(https://www.ada.gov/), in areas like protectingr ights for persons wi th d isabi l i t ies(https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-d i s a b i l i t i e s . h t m l ) , a r e r e j e c t e d(http://thehill.com/policy/international/270831-senate-rejects-un-treaty-for-disabled-rights-in-

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vote). As such, treaty ratification would be amonumental (and surprising) legacy-builder forTrump.

Global frameworks like UNCLOS are alsoexceptional events in international affairs.Advocates and opponents of U.S. accessionboth acknowledge that the terms of UNCLOSwould be impossible to negotiate today. In myview, this reality demonstrates the wisdom oflocking-in U.S. gains and the importance ofestablishing international institutions capableof maintaining validity in a changinggeopolitical environment. Treaty-making anddiplomacy require a certain “suppleness,” tob o r r o w f r o m R u t h W e d g w o o d(https://www.sais-jhu.edu/ruth-wedgwood),Professor of International Law and Policy at theJohn Hopkins School of Advanced InternationalStudies. U.S. participation could strengthenUNCLOS by ensuring that new life is breathedinto the document’s text, consistent with U.S.interests.

Unfortunately, the contemporary politicalenvironment is characterized by a rigidnessand polarization that defy supple solutions forU.S. accession to UNCLOS. The currentp o p u l i s t s t r a i n(https://www.foreignaffairs.com/articles/world/2017-04-17/ l iberal -order-r igged) ischaracterized by a faith in strong leaders, adisdain of perceived limits on sovereignty and adistrust of powerful international institutions.Criticism of international law has taken on areligious fervor, become an emotional calling.The South China Sea case may only prove theideological point of detractors of internationallegal regimes like UNCLOS, no matter howshortsighted.

A s I h a v e a r g u e d b e f o r e(http://jtl.columbia.edu/preserving-the-global-commons-is-putting-america-first/), preservingthe international order and protecting theglobal commons is an important means forp u t t i n g “ A m e r i c a f i r s t

(https://www.nytimes.com/2016/04/28/us/politics / t r a n s c r i p t - t r u m p - f o r e i g n -policy.html?_r=1#story-continues-1).” Whethernavigating the world’s oceans, pilotinginternational airspace, or browsing the WorldWide Web, U.S. influence is demonstrated byand promoted under this rules-based order.The global regimes America helped constructnot only have supported historic gains in globalwealth (with nearly a billion people lifted fromabsolute poverty over the last 30 years), butalso have provided for the power and affluencethat the United States and its citizens enjoytoday. This has not been a zero sum game forAmerica. Moreover, the internationalcommunity and the United States, especially,would find new and significant transactioncosts if Washington withdraws from the world’sgoverning institutions. Relying on rising powerslike China to steer the course of global politics,a ro le Bei j ing increas ingly re l i shes(https://www.nytimes.com/2017/06/01/us/politics / c l i m a t e - a c c o r d - t r u m p - c h i n a - g l o b a l -leadership.html?_r=0), is a gamble that aformer casino owner l ike Trump mayappreciate.

Perhaps in this Trump era, only a figure likeDonald J. Trump can lend legitimacy to acomplex global undertaking that is in the U.S.national interest. The Republican-controlledSenate is unlikely to act without political coverfrom the White House. In other words, aRepublican leader and populist dealmaker maybe required to overcome the trump card ofdomestic politics in this vital area of U.S.foreign policy. This scenario will requiredecisive presidential leadership and a clearview of the national interest in Washington.

If Richelieu were able to roam the halls alongPennsylvania Avenue, would his Red Eminencebe able to find what he described as the “torchof reason” – the light that must guide theconduct of princes and their states? During theThirty Years’ War, the stakes were high andpolitics unforgiving, but Richelieu’s vision of

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the raison d’État provided grounds for a futureW e s t p h a l i a n p e a c e(http://avalon.law.yale.edu/17th_century/westphal.asp). He observed that while authorityconstrains obedience, reason captivates it.For tunate ly , we need no t resor t tohypotheticals to assess U.S. leadership and thenational interest in the Trump era. Whether theUnited States ratifies UNCLOS will provide usthe measure we seek.R o n c e v e r t G a n a n A l m o n d(http://www.wicks-group.com/bio/roncevert-almond) is Partner and Vice-President at The WicksGroup, based in Washington, D.C. His practiceis devoted to U.S. regulation and policy,international law, and government relationsinvolving aviation, aerospace and national

security matters. He has advised the U.S.-ChinaEconomic and Security Review Commission andgovernments in Asia, Europe, Africa, and LatinAmerica on issues of international law. Mr.Almond serves as a contributor to TheDiplomat, a current-affairs magazine for theAsia-Pacific, and editorial board member forThe Air & Space Lawyer, the publication for thepremier association of U.S. legal practitionersin the field. In addition, he has writtenextensively on international affairs and nationalsecurity for publications such as the HarvardNational Security Journal, Columbia Journal ofTransnational Law, and Fletcher Forum ofWorld Affairs. This article is expands upon“U.S. Ratification of the Law of the SeaConvention: Measuring the Raison d’État in theTrump Era,” The Diplomat, April, 25, 2017.

Roncevert Ganan Almond (http://www.wicks-group.com/bio/roncevert-almond) isPartner and Vice-President at The Wicks Group, based in Washington, D.C. His practice isdevoted to U.S. regulation and policy, international law, and government relations involvingaviation, aerospace and national security matters. He has advised the U.S.-China Economicand Security Review Commission and governments in Asia, Europe, Africa, and Latin Americaon issues of international law. Mr. Almond serves as a contributor to The Diplomat, a current-affairs magazine for the Asia-Pacific, and editorial board member for The Air & Space Lawyer,the publication for the premier association of U.S. legal practitioners in the field. In addition,he has written extensively on international affairs and national security for publications suchas the Harvard National Security Journal, Columbia Journal of Transnational Law, andFletcher Forum of World Affairs. This article is expands upon “U.S. Ratification of the Law ofthe Sea Convention: Measuring the Raison d’État in the Trump Era,” The Diplomat, April, 25,2017.