U.S. ability to conduct maritime interdiction operations will not be curtailed by UNCLOS
The U.S. conducts a wide range of maritime interdiction and related operations with its allies and partners, virtually all of whom are parties to the Convention. If the U.S. were to ratify UNCLOS, it would only strengthen its ability to conduct such operations by eliminating any question of its right to avail ourselves of the legal authorities contained in the Convention.
Ratifying LOSC will also enhance U.S. counter-piracy efforts by improving America’s ability to shape the legal authorities the international community relies on to combat piracy, especially in instances where existing agreements do not account for advancements in technology. The United States, for example, relies increasingly on remote sensing systems and a fleet of low- and high-altitude remotely piloted vehicles to provide persistent surveillance where the United States lacks a sustained maritime presence. These technologies may help U.S. maritime officials track piracy activities and facilitate a faster response. However, as one analyst notes, use of these technologies may not be clearly protected within existing international maritime treaties, including LOSC: “[R]emote sensing from satellites and high-flying surveillance aircraft have for decades undertaken maritime scientific research and surveys in others[’] EEZs without the permission – or even the advance knowledge – required by the 1982 UNCLOS.”16 As the United States continues to field remotely piloted or semi-autonomous vehicles and sensors – including maritime ones – it will need to be prepared to challenge efforts to constrain or prohibit their use.
Nevertheless, opponents of UNCLOS find that United States accession to the treaty would directly contradict the goals of PSI.31 Specifically, opponents assert that if the United States does not become a party to the Convention, it will be free from any constraints in relation to ocean law, and thus, better suited to pursue the goals of PSI.32 This argument, however, is weakened by the fact that the United States is already a party to the 1958 Convention on the Law of the Sea, subjecting it to many of the same provisions articulated in the current iteration of UNCLOS.33 While the 1982 Convention modified many elements of the 1958 Convention, several key provisions remained in place, including many governing activities in territorial seas, continguous zones, and the high seas. Additionally, because UNCLOS is largely rooted in customary law, opponents of UNCLOS assert that the United States is already subject to many of its provisions implicitly.34 In the absence of a treaty, the United States must rely on and abide by customary law, which is defined by the pattern and practice of states. Since so many nations are already a party to UNCLOS, their practices largely influence the body of customary law on which the United States must rely if it does not ratify UNCLOS.
Proponents of UNCLOS assert that the treaty does not significantly impact the way the United States military conducts MIOs.53 During peacetime, UNCLOS permits the following: the boarding of vessels that are flying the flag of the boarding state, the boarding of vessels that consent to boarding, the boarding of vessels that are entering coastal state ports, and the boarding of stateless vessels.54 During wartime or armed conflict, UNCLOS allows boardings in self-defense if under attack or threat of attack and in accordance with other established maritime law and laws of armed conflict.55 These provisions are sufficient for the United States to continue to carryout MIO missions as currently employed.
[MYTH]: As a nonparty, the United States is allowed to search any ship that enters our exclusive economic zone to determine whether it could harm the United States or pollute the marine environment. Under the Convention, the U.S. Coast Guard or others would not be able to search any ship until the United Nations is notified and approves the right to search the ship.18
This also is not correct. Under applicable treaty law—the 1958 conventions on the law of the sea—as well as customary international law, no nation has the right arbitrarily to search any ship that enters its exclusive economic zone (EEZ) to determine whether it could harm that nation or pollute its marine environment. Nor would the United States want countries to have such a blanket “right,” because it would fundamentally undermine freedom of navigation, which benefits the United States more than any other nation. Thus, the descriptions of both the status quo and the Convention’s provisions are incorrect. It makes no change in our existing ability or authority to search ships entering the American EEZ with regard to security or protection of the environment. One final and very important point is that under the Convention the UN has absolutely no role in U.S. military operations, including a decision as to when and where a foreign ship may be boarded.
Critics' complaints tend to center on provisions that require submarines to surface and show their flag in the territorial sea, as well as those provisions that limit rights to board foreign flag ships. But apparently out of ignorance they never disclose that such provisions are already binding on the United States pursuant to the 1958 convention that was ratified with the Senate's advice and consent almost a half-century ago and with which we have lived since. Nor do the critics note the reciprocal nature of the law. Provisions against overly broad boarding exist precisely to protect the sovereignty of U.S. flag ships on the high seas. Do the critics really want Chinese submarines submerged off the beaches of New York or Los Angeles? Most importantly, the 1982 convention has considerably improved on the 1958 convention to meet current U.S. resource and strategic needs. Arguments against the convention that ignore the 1958 obligations effectively support those now outdated concepts, foregoing the new strategic rights of transit passage through straits, archipelagic sea lanes passage, the improved regime of innocent passage and many other issues critical to U.S. national security and ocean interests.
The most absurd argument made against the Convention is the notion that it would hinder U.S. efforts to interdict shipments of materials used for nuclear, chemical and biological weapons and the missiles used to deliver them. The opposite is true. Signing the Convention helps stop proliferation.
Opponents contend that because the Convention protects freedom of the seas and freedom of already passage in territorial waters, signing would prohibit the U.S. Navy from stopping suspect shipments.12￼ This argument is based on a misunderstanding of both international law and America’s current nonproliferation efforts. The Convention offers states limited reasons for violating a ship’s freedom of the seas or right of innocent passage, and these reasons do not include carrying weapons. But these constraints on U.S. conduct already exist. Freedom of the seas and the right of innocent passage are codified in the treaties the United States passed in 1958 and subsequently recognized as customary international law. If the United States ever had a right to stop shipments without regard for freedom or the seas and the right of innocent passage, that right is long gone. The Convention imposes no new restrictions on the United States’ ability to interdict weapons shipments.
[MYTH] As a nonparty, the U.S. is allowed to search any ship that enters our EEZ to determine whether it could harm the United States or pollute the marine environment. Under the Convention, the U.S. Coast Guard or others would not be able to search any ship until the United Nations is notified and approves the right to search the ship.
- Under the Convention, the UN has no role in deciding when and where a foreign ship may be boarded.
- Under applicable treaty law – the 1958 conventions on the law of the sea – as well as customary international law, no nation has the right to arbitrarily search any ship that enters its EEZ to determine whether it could harm that national or pollute its marine environment. Nor would we want countries to have such a blanket “right,” because it would fundamentally undermine the freedom of navigation that benefits the United States more than any other nation.
- Thus, the description of both the status quo and the Convention’s provisions is incorrect. The Convention makes no change in our existing ability or authority to search ships entering our EEZ with regard to security or protection of the environment.
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.
Myth: The International Tribunal for the Law of the Sea could order the release of a vessel apprehended by the U.S. military.
Reality: The Tribunal has no jurisdiction to order release in such a case. Its authority to address the prompt release of vessels applies only to two types of cases: fishing and17 protection of the marine environment. Further, even if its mandate did extend further – which it does not – the United States will be taking advantage of the optional exclusion of military activities from dispute settlement. As such, in no event would the Tribunal have any authority to direct the release of a vessel apprehended by the U.S. military.
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 12-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 that are interdicted in these disputed areas.
Since we are not yet party to UNCLOS, it is very difficult for us to credibly argue 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.