On March 25, the Russian Ministry of Foreign Affairs declared that it would not recognize the U.S. continental shelf limits announced last December, because the United States, which has still yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS), acted unilaterally and illegally. Washington’s claim to exclusive rights to resources in and on almost 1 million square kilometers of seabed in the Arctic, Atlantic, and Pacific oceans was unilateral. But it was also legal.
On March 25, the Russian Ministry of Foreign Affairs declared that it would not recognize the U.S. continental shelf limits announced last December, because the United States, which has still yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS), acted unilaterally and illegally. Washington’s claim to exclusive rights to resources in and on almost 1 million square kilometers of seabed in the Arctic, Atlantic, and Pacific oceans was unilateral. But it was also legal.
Finally ratifying UNCLOS would pull the carpet out from under cynical Russian and Chinese attempts to paint the United States as an international rule-breaker at sea. Perhaps the latest push to convince Republican senators that UNCLOS ratification is in the national interest will bear fruit. But the Biden administration must not wait idly. The State Department should lean into public messaging that explains the simple legal basis of U.S. rights to domestic and international audiences. Behind the scenes, Washington should be organizing a coalition of like-minded states to state their support for all states, including the United States, to a full continental shelf.
More than 40 years on from its negotiation, UNCLOS remains unratified by the United States despite repeated efforts by presidents from both parties to secure Senate approval. Washington views UNCLOS as largely reflecting customary law binding on all states, including the United States, but remaining outside the treaty leaves Washington vulnerable to accusations that its disagreements with other states over maritime issues are illegitimate or based on nebulous, cherry-picked law.
Last December, the United States updated the limits of its continental shelf, the seabed extending from the U.S. coastline. The move put almost 1 million square kilometers of seabed—rich with complex ecosystems, oil and gas, and polymetallic nodules—under U.S. jurisdiction. Under international law, countries have exclusive rights to resources in and on the continental shelf, the region of the seabed that is a continuation of land above sea level. UNCLOS establishes a set of science-based rules for determining the outer limits of a shelf and establishes an international body, the Commission on the Limits of the Continental Shelf (CLCS), to review supporting scientific data submitted by coastal states. (The United States believes it could submit its data to the CLCS even before ratifying UNCLOS but has not yet done so.) UNCLOS also requires some profit-sharing with the international community for commercial activity on the shelf beyond the exclusive economic zone (EEZ), the area stretching up to 200 nautical miles from shore.
The EEZ and the continental shelf are often incorrectly confused, but one of the many key differences is that the continental shelf has a longer and firmer history that predates UNCLOS. The right to a full continental shelf is well established in customary international law and the International Court of Justice’s rulings. Indeed, the United States kicked off the formation of those rules with the Truman Proclamation in 1945. Additionally, the United States (as well as Russia) is a party to the 1958 Convention on the Continental Shelf, which also affirms the right to a continental shelf.
The Russian foreign ministry alleged that Washington’s “unilateral steps are not in accordance with established international law, rules, and procedures.” It noted that the Russian delegation at the International Seabed Authority had criticized the United States’ “chosen course, which uses norms of international law stressing rights and completely ignoring obligations,” as just the latest example of its attempts to exploit UNCLOS purely for its own interests. This, along with some scholarly and expert commentary, appears to fixate on the idea that by clarifying the limits of its continental shelf in line with UNCLOS standards, the United States is somehow getting more than it deserves as a nonparty to UNCLOS.
In fact, the U.S. commitment to the shelf criteria laid out in UNCLOS likely limits it more than the standards that actually apply to it as a matter of treaty law. The 1958 convention simply defines the continental shelf as the seabed and subsoil “to a depth of 200 metres or, beyond that limit, to where the depth of the superadjacent waters admits of the exploitation of the natural resources of the said areas.”
Under the 1958 convention, if you can mine it, you can claim it—and given the state of mining technology, most regions could arguably be exploited. In contrast, UNCLOS introduces a set of limiting technical criteria such as the thickness of the shelf or distance from shore. Setting aside the question of whether the UNCLOS criteria are customary international law (the answer: probably), the United States could well have made a more expansive claim under the 1958 convention but chose to limit itself and play by the same rules as other countries.
Russian and Chinese complaints about U.S. rule-breaking have an easy fix: The Senate should ratify UNCLOS. At a time when the United States stresses the idea of a rules-based international order, ratification would plug a glaring gap in the U.S. position that opens it to charges of hypocrisy. Conservative critics of UNCLOS at the Heritage Foundation and on Capitol Hill are undermining U.S. competition with China. Their position impedes U.S. access to critical resources. It misses opportunities to strengthen alliances in the Western Pacific around a shared commitment to uphold UNCLOS against Beijing’s excessive claims and illegal behaviors. And it cedes ground to China in a vitally important rhetorical battle about the power and role of international rules as a check on dangerous behavior.
But the Biden administration should not wait for Republicans to back UNCLOS to act. The U.S. case and position are simple and defensible even if it would be a slam dunk if the country were also a party to UNCLOS. The administration should push a message in domestic and international media that the rules-based international order is more than one convention, that U.S. claims rest on a strong legal foundation based on this larger ecosystem of rules and treaties, and that the United States is a major provider of global order at sea. Domestically, the Biden administration can also play up the acquisitive element of the U.S. position by putting the claim in geographic and economic context and highlighting the opportunities it presents for environmental conservation and economic growth.
Additionally, the United States should seek support from like-minded states such as Canada, Japan, and European Union members to secure explicit, public statements supporting the right of all states, including the United States, to a full continental shelf. Such statements would support U.S. messaging that it is not acting unilaterally, cherry-picking law to its own benefit. Allies in Europe and East Asia are obvious candidates for such a statement, but Washington could look to the limited number of other UNCLOS nonparties, such as Colombia and Peru, for non-Western reinforcement.
The U.S. shelf is justified by law and extensive scientific survey. But resting on this is to miss an opportunity to further the U.S. goal of defending a rules-based international order against Russian and Chinese efforts to undermine and replace this system. Both public and traditional diplomacy can reinforce the U.S. position and help fend off charges that U.S. rhetoric about a rules-based international order is a self-serving farce. And just as Russia’s invasion of Ukraine brought the very NATO expansion Moscow sought to avert, perhaps advocates of UNCLOS can exploit Beijing’s and Moscow’s latest cynical accusations to spur Senate Republicans to long-overdue action: ratifying UNCLOS.
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