Topic Analysis: UNCLOS/ICC

The LD topic for Jan/Feb is Resolved: The United States ought to become party to the UN Convention of the Law of the Sea and/or the Rome Statute of the International Criminal Court.

The most important word in the resolution is “And/or.” This means that affirmative teams can only choose to defend UNCLOS, ICC, or both, so at first glance, seems there are only three topical AFFs. However, there’s still tons of AFF innovation possible: one avenue is where affirmative cases argue that ratifying one treaty is preferable but should be contingent on specific geopolitical, legal, or strategic conditions. For example, an affirmative could defend accession to UNCLOS under a framework that ensures specific maritime security guarantees, or support ICC membership while arguing for domestic legal safeguards to prevent politicized prosecutions.

What is UNCLOS? UNCLOS stands for the United Nations Convention of the Law of the Sea. UNCLOS was adopted in Dec 1982 and entered into force Nov 1994. It lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources by calling for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction” by Ambassador Arvid Pardo of Malta. Signed by 164 UN Member States, Palestine, the EU, and the Cook Islands and Niue. Key exceptions include: Andorra, Eritrea, Holy See (United Nations Observer State), Israel, Kazakhstan, Kyrgyzstan, Peru, San Marino, South Sudan, Syria, Tajikistan, Turkey, Turkmenistan, United States of America, Uzbekistan, Venezuela

AFF Arguments for UNCLOS:

A key argument for UNCLOS accession is its impact on the shipping industry. The lack of U.S. participation creates regulatory uncertainty, undermining shipping effectiveness. Since shipping is a major driver of global economic growth, failing to adopt UNCLOS threatens economic expansion.

Additionally, UNCLOS plays a critical role in global governance. Russia’s actions in the Arctic and China’s territorial claims in the South China Sea pose strategic threats, but without UNCLOS, the U.S. lacks the legal standing to effectively counter these encroachments. Failure to check back on these aggressions increases the risk of great power conflict.

Furthermore, UNCLOS establishes Exclusive Economic Zones (EEZs) extending 200 nautical miles from a country’s coast, crucial for deep-sea mining, offshore energy, and rare earth mineral extraction. These minerals are essential for renewable technologies, which are key to mitigating climate change. Since global warming poses an existential threat, UNCLOS adoption could play a role in long-term climate solutions.

NEG Arguments for UNCLOS:
Opponents of UNCLOS highlight concerns regarding military and economic security. One argument focuses on its impact on U.S. submarine capabilities, as UNCLOS requires submarines to navigate on the surface within 12 nautical miles of a coastal state’s territorial waters. This would undermine U.S. deterrence in the South China Sea against China. Another issue is its effect on oil and drilling operations, as UNCLOS provides legal grounds for lawsuits against at-sea oil companies and U.S. maritime activities. Even the litigation costs alone could shut down oil projects, which are essential for countering Russia, China, and Middle Eastern energy influence. Additionally, both UNCLOS and the ICC raise constitutional concerns. Accession could violate certain constitutional provisions, prompting the Supreme Court to strike down the plan. In retaliation, Congress might attempt to undermine judicial independence, escalating political instability.

What is the ICC? The International Criminal Court (ICC) was established by the Rome Statute, adopted at the Diplomatic Conference in Rome in July 1998 and entering into force in July 2002. It prosecutes four major international crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. Currently, 125 states are party to the Rome Statute, but key nations such as the U.S., Russia, Israel, and China have not ratified it, while others, including the Philippines and South Africa, have withdrawn.

AFF Arguments for ICC:

A key argument for ICC accession is that it is essential for ensuring accountability for the most serious crimes, including genocide, war crimes, and crimes against humanity. Without an independent international tribunal, many perpetrators would escape justice due to political protections in their home countries. The ICC provides a legal avenue for prosecuting individuals who might otherwise remain immune from consequences, reinforcing global human rights standards. Furthermore, the presence of the ICC acts as a deterrent, discouraging future war crimes by demonstrating that the international community will hold violators accountable.

Additionally, it can be argued that the ICC strengthens the rule of law by ending impunity for powerful figures. Domestic courts often fail to prosecute war criminals due to corruption, political pressure, or a lack of resources. By providing an independent judicial mechanism, the ICC upholds justice even in cases where national governments are unwilling or unable to act.

NEG Arguments for ICC:

One of the most significant disadvantages of the ICC is that it undermines U.S. and allied power projection. As a supranational legal body, the ICC can investigate and prosecute military personnel, including those from democratic nations engaged in peacekeeping or counterterrorism missions. This risk causes countries like the United States to hesitate before deploying troops or engaging in humanitarian interventions in the Middle East, fearing politically motivated prosecutions. The threat of legal repercussions creates a chilling effect on military action, weakening the ability of democracies to respond quickly and decisively to international crises.

Constitution DA:

A NEG argument that applies to both UNCLOS and ICC is the Constitution DA.

Here’s a rundown of the DA:

In Sanchez-Llamas vs. Medellín, the U.S. Supreme Court established that decisions made by the International Court of Justice (ICJ) are not automatically enforceable in domestic courts unless Congress passes a non-self-executing law to give them force. This means that for a treaty like UNCLOS to have legal effect in the U.S., Congress must first create such a law. However, the plan proposes U.S. accession, which does not include the necessary step of passing a law that would make its provisions enforceable in domestic courts. This creates a constitutional issue, as UNCLOS's provisions, unlike prior agreements, are seen as harder to avoid, which further complicates the plan’s legal standing.

Additionally, Article 296 of UNCLOS states that decisions made by its tribunals are “final” and must be “complied with,” which violates Article III of the U.S. Constitution. Article III grants U.S. courts jurisdiction over international matters, meaning that UNCLOS’s legal provisions would take away the ability of the Supreme Court to review and interpret these decisions, potentially leading to narrow and arbitrary interpretations of UNCLOS law. This would create legal confusion, as the Supreme Court would have no recourse or ability to address constitutional concerns regarding the treaty.