Freedom of navigation is critical to U.S. leadership and economy
Indeed, global commerce, travel, and information have greatly contributed to the growing wealth of nations and to the stability of the post-Cold War international system. The world's seas, air, space, and-more recently- cyberspace also play critical roles in states' national defense and their ability to conduct military operations worldwide. The United States relies on freedom to operate in the commons in order to protect the U.S. homeland and its vital national interests.
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The National Strategy for Maritime Security (NSMS) identifies freedom of the seas as a “top national priority.”26 Naval forces depend upon global strategic mobility and tactical maneuverability to conduct the spectrum of sea-air-land operations in pursuit of the national interest, and these operations include:
- operating the most survivable component of nuclear deterrence, ballistic missile submarines (SSBNs);27
- conventional global strike;28
- air and missile defense;29
- information operations;30
- sea and land direct attack with missiles, naval gunfire and aircraft;
- crisis and disaster response, such as tsunami relief;31
- maritime homeland security;32
- amphibious and expeditionary operations in littoral areas;33
- insertion of special operations forces (SOF) for missions such as counterinsurgency and counterterrorism;34
- constabulary functions and maritime security operations (MSOs) such as counterdrug operations35 and piracy repression;”36
- counter proliferation operations such as the Proliferation Security Initiative (PSI) and the Protocols to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA);37
- exercise of the right of approach, approach and visit, maritime interception operations (MIO) and visit, board, search and seizure (VBSS);
- naval control and protection of shipping (NCAPS);38 exercise of sea lines of communication (SLOCs) through the global supply chain and strategic supply;
- sea control;39 anti-access and sea denial strategies such as mining; civil-military affairs;40
- security cooperation and peacekeeping;41 and forward presence.42
In addition to securing the homeland, the exercise of these military activities ensures and relies on U.S. command of the global commons, which means the United States is readily able to insert power anywhere throughout the globe.43 The Chief of Naval Oper- ations has said assuring access to the oceans and preserving the freedom to conduct naval operations is directly related to deterring war, or, if necessary, winning it.44
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Beyond this leadership role, vital and immediate core strategic U.S. interests hinge on accession. This has been articulated in congressional testimony by the nation’s mil- itary leadership—from the Chairman of the Joint Chiefs of Staff down—and especially by successive Chiefs of Naval Operations. For example, Admiral Mike Mullen in written testimony before his confirmation hearings stated: The ability of military forces to operate freely on, over, and above the vast military maneuver space of the oceans is critical to our national security interests, the military in general and the Navy in particular. Your Navy’s—and your military’s—ability to operate freely across the vast domain of the world’s oceans in peace and in war make possible the unfettered projection of American influence and power. The military basis for support of the Law of the Sea Convention is broad because it codifies fundamen- tal benefits important to our operating forces as they train and fight.
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As a military superpower, the United States could heavily rely on regulations such as the UNCLOS III to provide for military defense such as navigation and overflight, military presence, and commercial advantages.372 There is a direct correlation between the economic interests of the United States and the security provided by UNCLOS III. In order for the United States to maintain its political and economic influence, it depends on the stability of the global market.￼ ￼ The stability found in the Convention is also crucial to the exploitation of marine scientific research in drilling and fishing industries.
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The sea provides passageway to 45,000 merchant ships worldwide and over 90 percent of global trade.' Each year, 2.2 billion passengers, 40 percent of international tourists, and 44 million tons of freight travel by air. The global economic impact of air transport in 2007 was estimated to be $3.5 trillion, or 7.5 percent of global GDP.2 Additionally, the economic worth of the commu- nications, imagery, and positioning data gained from satellites in space was $257 billion in 2008, and each day, financial traders in New York City transfer more than $4 trillion, or approximately 25 percent of annual U.S. GDP, via the Internet.' As the 2010 U.S. Department of Defense's QuadrennialDefense Review Report states, "Global security and prosperity are contingent on the free flow of goods shipped by air or sea, as well as information transmitted under the ocean or through space."' Access to the global commons enables these flows, in turn promoting both international stability and prosperity.
Indeed, global commerce, travel, and information have greatly contributed to the growing wealth of nations and to the stability of the post-Cold War international system. The world's seas, air, space, and-more recently- cyberspace also play critical roles in states' national defense and their ability to conduct military operations worldwide. The United States relies on free- dom to operate in the commons in order to protect the U.S. homeland and its vital national interests. Yet as the global commons grows, the number of emerging trends that threaten this freedom of action also increases.
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In 2003, Barry Posen wrote a seminal piece on the defense and security benefits of unchallenged freedom of operation in the commons entitled, "Command of the Commons: The Military Foundation of U.S. Hegemony."" Posen argues that dominance in these shared domains serves as the foundation of the leadership role that the United States holds in the international system. He states, "Command of the commons is the key enabler of the U.S. global power position. It allows the United States to exploit more fully other sources of power, including its own economic and military might as well as the economic and military might of its allies." Posen's work on this topic brought to the forefront the role that the global commons play as a key enabler of U.S. defense and national security strategies.
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Military operations since September 11—from Operation Enduring Freedom to Operation Iraqi Freedom to the Global War on Terrorism —have dramatically increased our global military requirements. U.S. Forces are continuously forward deployed worldwide to deter threats to our national security and are in position to respond rapidly to protect U.S. interests, either as part of a coalition or, if necessary, acting independently. U.S. military strategy envisions rapid deployment and mobility of forces overseas anytime, anywhere. A leaner, more agile force with a smaller overseas footprint places a premium on mobility and independent operational maneuver. Our mobility requirements have never been greater.
Future threats will likely emerge in places and in ways that are not yet fully clear. For these and other undefined future operational challenges, U.S. naval and air forces must take maximum advantage of the customary, established navigational rights that the Law of the Sea Convention codifies. Sustaining our overseas presence, responding to complex emergencies, prosecuting the global war on terrorism, and conducting operations far from our shores are only possible if military forces and military and civilian logistic supply ships and aircraft are able to make unencumbered use of the sea and air lines of communication. This is an enduring principle that has been in place since the founding of our country.
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The first argument for United States accession to the Convention is the changing patterns of global trade, which place an increasing premium on freedom of the seas and maritime flexibility and mobility. Seaborne commerce today exceeds 3.5 billion tons annually and accounts for over 80% of the trade among nations. The United States, in particular, is increasingly dependent on unrestricted access to overseas resources and8 markets. Over 95% of U.S. import and export trade is transported by sea. Almost 50% of U.S. petroleum products is imported, and an increasing percentage of our gross9 national product, now in excess of 20%, is traded overseas. Recent agreements under the auspices of the General Agreement on Tariffs and Trade, as well as NAFTA, might well intensify this commerce. As the world's leading maritime power and de facto leader of the global maritime coalition, the United States must advocate strongly for the ability of ships and aircraft of all nations to move freely on, over, and under the sea anywhere on earth, not at the sufferance of coastal and straits states but as an internationally recognized legal right. The Convention guarantees this mobility and flexibility, and makes it less likely that naval forces will have to protect our economic use of the oceans militarily, by reaffirming and codifying traditional freedoms of navigation and over-flight.
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Freedom of navigation also underpins global economic prosperity. The oceans, wrote Professors McDougal and Burke, were a “spatial extension resource, principally useful as a domain for movement.”20 With the increasing trend in global trade, exercising the freedom to navigate on the seas is becoming even more important. This trend is accelerating in an era of globalization. “Shipping lanes are getting busier,” reports the Wall Street Journal, “not just from Asia to North America and Europe, but within Asia.”21 The initial rise of the globalized economy, which began in mercantilist Europe, can be attributed in large part to unimpeded ocean transit. Four hundred years ago, the legal scholar Hugo Grotius cogently set forth the commercial doctrine that fueled international trade. “For do not the ocean,” Grotius wrote, “navigable in every direction with which God has encompassed all the earth, and the regular and occasional winds which blow now from one quarter and now from another, offer sufficient proof that Nature has given to all peoples a right of access to all other peoples?”22 The model of freedom of the seas also is regarded as the logical analogue for developing the legal regime for outer space.23