Ratification of UNCLOS is in U.S. national security interests
Ratification of UNCLOS would bolster U.S. national security in numerous ways, including: protecting all six core freedom of navigation rights, protect maritime interdiction rights, and supporting efforts to combat piracy.
When the Bush Administration came into office in January 2001, we began a careful review of all of the treaties that had been submitted to the Senate by the Clinton Administration to determine which treaties the Bush Administration would support and would not support. The Bush Administration did not support all of the treaties that had been supported by the prior Administration. For example, the Bush Administration did not support the Comprehensive Nuclear Test Ban Treaty, which had been strongly supported by the Clinton Administration. We did not support the Kyoto Protocol, which had been signed by the Clinton Administration. Many Bush Administration officials were similarly skeptical of the Law of the Sea Convention because it was a multilateral treaty, and President Reagan had refused to sign it. However, after a year-long interagency review, the Bush Administration concluded that the Convention was in the U.S. national interest and decided strongly to endorse the treaty. In February 2002, the Administration submitted its first Treaty Priority List to this Committee and listed the Law of the Sea Convention as a treaty for which there was an “urgent need for Senate approval.”
Let me emphasize that the Bush Administration did not decide to support the Law of the Sea Convention out of a blind commitment to multilateral treaties or international organizations. No one has ever accused the Bush Administration of an over-abundance of enthusiasm for the United Nations or multilateralism. Indeed, the Bush Administration was especially skeptical of the United Nations and many U.N. bodies, such as the Human Rights Council. And the Bush Administration was especially committed to defending U.S. sovereignty and international freedom of action, particularly after September 11.
The Bush Administration decided to support the Law of the Sea Convention and to provide senior Administration officials to testify in favor of the Convention only after weighing the Convention’s benefits against its risks. We ultimately concluded that, on balance, the treaty was clearly in the U.S. national security, economic, and environmental interests.
Why are the provisions and protections of the convention vital to implementing U.S. national defense and maritime strategies? Why now? All six core capabilities of U.S. maritime forces are predicated upon legally certain freedom of navigation and overflight, as defined by the United States and codified in the convention. Joining the convention supports the strategic and operational mobility of American air, surface, and submarine forces. It provides legal guarantees for those forces to transit the high seas, exclusive economic zones, international straits, and archipelagic sea routes during times of crisis. It supports the freedom of those forces to legally conduct military survey, reconnaissance, and intelligence gathering under the terms and conditions the United States prefers. It allows the high-seas interdiction of stateless vessels and illegal activities under frameworks such as the Proliferation Security Initiative, using the protocols the United States carefully crafted to conform to the convention. Most recently, this year articles 100 and 105 of the convention have been applied as the basis of an agreement with Kenya to prosecute Somali pirates apprehended in the Indian Ocean.
From a national security standpoint, arguments against the United States becoming a party to UNCLOS are simply not compelling in the face of overwhelming military support for ratification.88 Becoming a party to UNCLOS will help build coalition partnerships in the Global War on Terrorism and the Proliferation Security Initiative.89 Moreover, the United States Navy's ability to respond to potential crises is critically linked to the freedom of navigation rights guaranteed by UNCLOS.90 Finally, neither large-scale military operations nor a single warship's inherent right to self- defense will be significantly impacted by becoming a party to UNCLOS.91 Indeed, the United States has declared that nothing in the UNCLOS impairs the inherent right to self-defense or rights during armed conflict, including any Convention provisions referring to "peaceful conflict" or "peaceful purposes."
Most importantly, from a national security perspective, UNCLOS’ terms are overwhelmingly favorable to the U.S. Were this not the case, additional arguments for accession would be irrelevant. To the contrary, the Convention codifies principals the U.S. national security community helped negotiate and continues to support. The Convention’s express terms give the U.S. military a comprehensive and eminently favorable basis for conducting maritime operations around the world.96
UNCLOS, as a treaty with favorable terms, is superior to customary law (and the 1958 Geneva Conventions on the Law of the Sea to which the U.S. has long been a party) as means for preserving U.S. interests in global mobility. Treaty membership would help the U.S. better preserve the favorable terms it helped negotiate, both through formal access to the amendment processes described above, as well as through UNCLOS constituent bodies such as the International Tribunal of the Law of the Sea, the International Seabed Authority, and the Commission on the Limits of the Continental Shelf.
Other Coast Guard missions that the Convention would promote include port and maritime security, law-enforcement, and environmental protection. While guaranteeing rights of innocent passage and the right to seek safe haven in the event of life-threatening storms and other conditions (which the law refers to asforce majeure),UNCLOS reemphasizes the jurisdictional rights of coastal states within their inland waters, such as harbors and rivers, and within the twelve nm territorial sea. As a result, the Convention would enhance the Coast Guard's ability to protect our nation's coastal security interests. The United States could use the provisions of UNCLOS effectively to combat excessive maritime claims, which can interfere with narcotics interdiction and other law-enforcement efforts. Several critical coastal states continue to claim territorial seas of 200 nautical miles, in violation of the Convention's twelve nm limit. These countries see our law-enforcement operations in their claimed territorial seas as violations of their sovereignty and are either reluctant or refuse to cooperate with proposed actions against vessels engaged in drug-smuggling interdicted in these disputed areas. Since we are not now party to UNCLOS, it is very difficult for us to argue credibly that they must give up these excessive claims. The result is that counter-drug bilateral agreements with these nations are difficult, interdiction efforts in their claimed territorial seas are hampered, and our negotiating ability to change the situation is compromised. The Convention also promotes our authority to protect our ocean waters, seashores, and ports from a wide variety of environmental threats. Admiral Thad Allen, the Commandant of the Coast Guard, and the four previous Commandants have strongly advocated becoming party to UNCLOS as soon as possible, largely because it would promote the ability of the Coast Guard to accomplish its homeland security and law-enforcement missions.2
Nonetheless, recognizing national security as important, it should be remembered that some clauses within the UNCLOS 1982 framework can assist in these goals for every state party including the US. We think, for example, that national security must surely encompass resource and energy security, environmental security, and maritime and navigational security, each addressed in UNCLOS 1982. We ask also, perhaps not rhetorically, when has the world not been dangerous? Each age and each state defines its own dangers and looks for cooperative ways to meet them. There is almost nothing in UNCLOS 1982 that is not of some favourable relevance to state sovereignty, state security, or many other matters of vital importance for every state. This must perforce include the US and its government’s current but historically deviate fixation on self-defined and perceived rather than objectively real threats. The UNCLOS 1982 basis of global ocean manage- ment encompasses five guiding principles that provide a comprehensive international system for ocean governance and rules for access to maritime resources; the protection and preservation of the marine environment; marine scientific research; the development and transfer of marine technology; and the settlement of disputes. Those principles would only assist the US or any other state in its proper national security goals. Ignoring them, by any mechanism, including excessively focusing on improper ones or choosing not to accept them as an organising principle along with most other states to help the world understand national security in similar terms, harms any state doing so. Hence, the US is harming itself by not ratifying.
Will accession hamper our ability to conduct maritime interdiction operations, outside the piracy realm? The answer here is no, as well. The U.S. conducts a wide range of maritime interdiction and related operations with our allies and partners, virtually all of whom are parties to the Convention. We rely on a broad range of legal authorities to conduct such operations, including the Convention, U.N. Security Council Resolutions, other treaties, port state control measures, flag state authorities, and if necessary, the inherent right of self-defense. Accession would strengthen our ability to conduct such operations by eliminating any question of our right to avail ourselves of the legal authorities contained in the Convention and by ensuring that we share the same international legal authorities as our partners and allies.
What appears most lacking in all of these situations is a perception by the larger world community that disputes like these pose a significant threat to international peace and stability. Were these disputes occurring on land, one suspects, world leaders would pay much closer attention to the risks involved and take urgent steps to avoid military action and escalation. But because they are taking place at sea, away from population centers and the media, they seem to have attracted less concern.
This is a dangerous misreading of the perils involved: Because the parties to these disputes appear more inclined to employ military force than they might elsewhere, and boundaries are harder to define, the risk of miscalculation is greater, and so is the potential for violent confrontation. The risks can only grow as the world becomes more reliant on offshore energy and coastal states become less willing to surrender maritime claims.
To prevent the outbreak of serious conflict, the international community must acknowledge the seriousness of these disputes and call on all parties involved to solve them through peaceful means, as quickly as possible. This could occur through resolutions by the UN Security Council, or statements by leaders meeting in such forums as the Group of 20 governments. Such declarations need not specify the precise nature of any particular outcome, but rather must articulate a consensus view that a resolution of some sort is essential for the common good. Arbitration by neutral, internationally respected “elders” can be provided as necessary. To facilitate this process, ambiguities in UNCLOS should be resolved and holdouts from the treaty—including the United States—should be encouraged to sign.
From a security perspective, the LOS Convention provides a balance of interests that protect freedom of navigation and overflight in support of United States’ national security objectives. The provisions were carefully crafted during negotiations of the LOS Convention, and reflect the substantial input that the United States had in their development. In particular, the Convention provides core navigational rights through foreign territorial seas, international straits and archipelagic waters, and preserves critical high seas freedoms of navigation and overflight seaward of the territorial sea, including in the EEZ. The navigational freedoms guaranteed by the Convention allow timely movement by sea of U.S. forces throughout the world, and provide recognized navigational routes which can be used to expeditiously transport U.S. military cargo – 95 percent of which moves by ship. The Convention’s law enforcement provisions establish a regime that has proven to be effective in furthering international efforts to combat the flow of illegal drugs and aliens by vessel – efforts which directly impact our nation’s security. The Convention establishes the rights and obligations of flag states, port states, and coastal states with respect to oversight of vessel activities, and provides an enforcement framework to expeditiously address emerging maritime security threats.