U.S. ratification of UNCLOS critical to naval soft power needed for cooperation with other navies
Although there may have been a time when the U.S. could simply declare its will and rely on the persuasive power of its global presence and naval gross tonnage to ensure cooperation, the guarantors of success in the modern maritime domain are more likely successfully coordinated coalitions and bilateral relationships. UNCLOS membership would provide a strong foundation for both.
[ Page 14-15 ]
Admiral Harry Ulrich, Commander, US Naval Forces Europe, espouses a relatively simple formula for the global war on terrorism: have more partners than your ad- versaries have. The reasons are elementary. The struggle against disorder knows no flag. Waging that struggle has become a team sport. Vice Admiral Morgan has been the leading voice for the 1,000-ship multinational navy/Global Maritime Partner- ship, a concept designed to attract the kind of partners Admiral Ulrich seeks. Does the Global Maritime Partnership (and the Global Fleet Station initiative70) need a unifying global maritime strategy that promises to respect the rules of interna- tional law? Many of the potential 1,000-ship-navy partners think so.71
In their response to the November 2005 “1,000 Ship Navy” article by Admirals Morgan and Martoglio,72 the naval commanders of France, Ghana, India, Portugal and Spain all referred to the rule of law or legal considerations.73 The French com- mander, for example, observed that any 1,000-ship-navy operations must be “in full compliance with the UN Convention on the Law of the Sea . . . .” Portugal ex- pressly referred to the “rule of law,” and India asked whether the 1,000-ship con- cept should be established under the aegis of the United Nations. Admiral Soto of the Spanish Navy observed that “[t]ogether we must find a legal solution to pre- serving the natural flow of friendly maritime trade while denying freedom of action to those criminals who attempt to use the maritime space for illegal activities.” It seems clear that respect for international law has the potential to unite or fracture the embryonic 1,000-ship navy.
[ Page 15-16 ]
One year later, many of those same foreign CNOs were asked to respond to Admiral Mullen’s plan for a new US maritime strategy.74 Once again, interna- tional law figured prominently in several of the responses. The Commandant of the Brazilian Navy urged that the new strategy “be guided by principles sanctioned by international law,” a viewed shared by the Secretary General of the Peruvian Navy and the Portuguese Navy Chief of Staff. Their counterpart in Colombia emphasized the need for an “international legal mechanism of cooper- ation.” Uruguay’s reply was also directly on point: “Multilateral cooperation among navies is legitimate activity when it is based on the law.” The Commander of the Lebanese Navy cited the 1982 LOS Convention and cautioned against the United States acting alone, while the new Chief of Staff for the Spanish Navy highlighted the need for the US Navy “to operate alongside its allies in accordance with international law.” The Australian Maritime Doctrine elegantly and forcefully captures the central importance of law and legitimacy for one of America’s most respected partners:
Australia’s use of armed force must be subject to the test of legitimacy, in that the Government must have the capacity to demonstrate to the Parliament and the electorate that there is adequate moral and legal justification for its actions . . . . [T]his adherence to legitimacy and the democratic nature of the Australian nation state is a particular strength. It is a historical fact that liberal democracies have been more successful in the development and operation of maritime forces than other forms of government, principally because the intensity and complexity of the sustained effort required for these capabilities places heavy demands upon a nation’s systems of state credit, its technological and industrial infrastructure, and its educated population. Sophisticated combat forces, in other words, depend directly upon the support of the people for their continued existence.75
[ Page 298 ]
In Working with Other Nations, a U.S. Navy strategy white-paper, Navy strategists suggest that multi-lateral, combined naval operations with friendly nations is the preferable way to further political, economic, and se- curity objectives in an economically and politically interdependent world.261 United States national security continues to require forward naval presence to ensure that information, capital, raw material, and manufactured goods flow freely across borders and oceans.262 One way to secure forward naval presence in foreign EEZs without contention and confrontation is by "establishing relations with security partners in peacetime before the onset of a crisis."263 A useful legal tool in support of this strategy is to create consensus on the law through multi-lateral cooperation and agreement.264
[ Page 5 ]
Becoming a Party to the Law of the Sea Convention directly supports our National Strategy for Maritime Security. As the President noted in the opening pages of the Strategy: “We must maintain a military without peer – yet our strength is not founded on force of arms alone. It also rests on economic prosperity and a vibrant democracy. And it rests on strong alliances, friendships, and international institutions, which enable us to promote freedom, prosperity, and peace in common purpose with others.” That simple truth has been the foundation for some of our most significant national security initiatives, such as the Proliferation Security Initiative. As the leader of a community of nations that are Parties to the Convention, more than 150 in total, the United States will be better positioned to work with foreign air forces, navies, and coast guards to address jointly the full spectrum of 21st Century security challenges.
[ Page 3 ]
The continued failure to ratify LOSC will not prohibit the United States from taking action against piracy. The United States conducts counter-piracy operations today despite its reluctance to ratify LOSC. The U.S. Navy and Coast Guard often execute such operations using the legal authorities granted under the 1988 Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention) – to which the United States is a party.15 Regardless, U.S. Navy and Coast Guard officials continually argue that LOSC adds legitimacy to counter-piracy efforts. In an era of hybrid threats in the maritime domain, this added legitimacy will make it easier for the United States to cooperate with international partners in this area.
[ Page 20 ]
As an UNCLOS party, the U.S. would assume a natural leadership role, facilitating coalitions and eliciting support from nations inclined to support the legal prerequisites for military maritime mobility. The U.S. relies on this support in a variety of contexts, ranging from the International Maritime Organization and regular bilateral interactions with partners and allies, such as the Proliferation Security Initiative,100 where there is direct evidence that non-party status has inhibited U.S. counter-proliferation efforts.101" UNCLOS membership would also enhance the U.S.’ influence with other states as they continue to evaluate their own practices and legal positions.102
Although there may have been a time when the U.S. could simply declare its will and rely on the persuasive power of its global presence and naval gross tonnage to ensure cooperation, the guarantors of success in the modern maritime domain are more likely successfully coordinated coalitions and bilateral relationships.103 UNCLOS membership would provide a strong foundation for both.
[ Page 2 ]
For many of the laws the Coast Guard enforces, especially those involving drug trafficking, illegal immigration, and counterterrorism, we leverage international partnerships to monitor, interdict, and prosecute those who threaten our Nation’s security. Our international partners are overwhelmingly parties to the Law of the Sea Convention. Our status as a non-party presents an unnecessary obstacle to gaining their cooperation. Accession to the Convention would most effectively cement a common cooperative framework, language, and operating procedures used in securing expeditious boarding, search, enforcement, and disposition decisions, thereby enabling on-scene personnel, cutters, and maritime patrol aircraft to pursue further mission tasking.
We also must cooperate and engage with our international partners to advance global and regional security priorities. Strengthening these relationships is crucial for sustaining our international leadership. Acceding to the Convention is an important step to achieving these goals. Frequently, the Coast Guard works internationally to train other nations’ navies. These navies more closely resemble the Coast Guard in authority and activity, uniquely positioning us to expand important maritime partnerships. The Convention serves as our guiding framework in helping these navies develop domestic law, protocols, and strategies. The Coast Guard needs the Convention to better promote United States security interests through capacity building. Building this capacity is an important force multiplier for the Coast Guard that further secures stability of the oceans, promotes efficient maritime commerce, and aids us in achieving strategic objectives regarding safety, security, and environmental protection.
[ Page 28 ]
Beyond the Arctic, the committee anticipates increased HA/DR missions by U.S. naval forces as a result of projected increases in extreme climatic events. To support this potential increasing mission for humanitarian assistance to climate refugees and disaster-relief operations, allied partnerships will be essential. Hence the committee sees ratification of the Convention as an important national priority to leverage the enormous “soft power” of the treaty to share burdens and reduce the national security risks to the naval and joint forces and the nation. Becoming a party to the Convention then is clearly in the U.S. naval forces’ best interests as the Arctic opens as a fifth ocean of interest.
[ Page 38 ]
In 2008, the National Defense Strategy signed by Secretary of Defense Robert M. Gates reinforced the main tenets of the Coopera- tive Strategy for 21st Century Seapower, issued in 2007 by the chief of naval operations and the commandants of the Marine Corps and the Coast Guard. 18 Both strategies emphasize that the prevention of war is the best way to achieve U.S. national security, and both highlight the fact that a strengthened system of alliances and partnerships is an essential component of building stability, collective security, and trust. The Cooperative Strategy for 21st Century Seapower is aptly named and uniquely relevant when considering the question of whether to join the convention. Its main points are:
- Preventing wars is as important as winning wars.
- U.S. maritime power comprises six core capabilities that emphasize preventing war and building partnerships: deterrence, sea control, power projection, maritime security, humanitarian assistance, and disaster response.
- Expanded cooperative relationships with other nations will contrib- ute to the security and stability of the maritime domain to the benefit of all.
- Trust and confidence cannot be surged; they must be built over time while mutual understanding and respect are promoted.
- Global maritime partnerships provide a cooperative approach to maritime security, promoting the rule of law by countering piracy, terrorism, weapons proliferation, drug trafficking, and other illicit activities.
This strategy predicts that “increased competition for resources, coupled with scarcity, may encourage nations to exert wider claims of sovereignty over greater expanses of ocean, waterways, and natural resources—potentially resulting in conflict.”
[ Page 8 ]
Certainly ratification will place the United States on firm legal standing, but more importantly, ratification will add significantly to the legitimacy of U.S. operations conducted under the framework of UNCLOS. But does obtaining legitimacy carry enough weight to warrant ratification? And would ratification increase the legitimacy of U.S. action? Absolutely. Through theory and practical application, legitimacy, like the other principles of war, has come to form the bedrock foundation by which joint operations are planned and conducted.38 Legitimacy isn’t, however, just “an other principle” of warfare that can be brushed aside when inconvenient. Instead, and rightfully so, legitimacy concerns often times drive commanders to operate within a multinational construct.39 Thus, sustaining legitimacy is, and will remain, a priority for leaders at all levels of the military and must be included in the planning and execution phases to ensure operations are viewed in a favorable light post implementation.40 Moreover, legitimacy is no longer an imperative solely for the politician or diplomat; that line has become hopelessly blurred.41 Instead, legitimacy has become “a prime example of the nexus between politics and war.”42 In other words, it sends a clear message to the world that military actions match rhetoric with respect to the rule of law.43 Furthermore, speaking to the issue of UNCLOS directly, legitimacy is the seam created when U.S. policy is to operate within international law, but not as part of it. Thus, legitimacy is not legality, although the law is certainly a component.44 Clearly U.S. Freedom of Navigation and Proliferation Security Initiatives, both underwritten by UNCLOS provisions, are at least debatably legal under current practice but still they fail to achieve widespread international approval.