U.S. non-party status to UNCLOS is undermining ability to conduct maritime interdiction operations
The U.S. relies on maritime interdiction operations for homeland security, counter-piracy, and crime control. However, during bi-lateral negotiations, several nations have, in the past, questioned our authority to contest certain of their excessive maritime claims simply because we have yet to ratify the treaty. Becoming a party to the Convention will enhance our ability to conduct such interdiction operations and to refute excessive maritime claims.
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"The ability to operate freely at sea is among the most important enablers of joint and interagency operations ...."72 Therefore, sustainable access to key regional sea lines of communication directly impacts the efficacy of nearly every maritime mission set in the U.S. arsenal. Especially affected are those missions conducted in the littoral and near shore waters up to 200 nautical miles from shore. This is because the near shore environment represents a primary operating area for critical "sea basing, amphibious, expeditionary and intelligence collection operations."73 Intelligence collection is particularly important given the U.S. national security establishment's continuous need for a broad range of operational indicators. As was seen during the Cold War, the ability to collect intelligence within foreign EEZ's can contribute to a state of "enforced transparency" between potential adversaries, as well as serve a forcing function of encouraging candor and good faith in military and political dealings.74 In addition to intelligence collection, other enduring maritime mission sets-many of a constabulary nature, such as maritime interdiction in support of counter piracy, counter narcotics, and Proliferation Security Initiative-also stand to be adversely impacted to the extent coastal nations engage in EEZ "securitization lawfare.,"75 Also, any limiter on DoD's ability to sustain and refine the aforementioned maritime mission sets ultimately constrains Congress' ability to efficiently allocate national security procurement resources and optimize return on that investment. For example, the U.S. Congress has invested heavily in littoral and near shore naval platforms, authorizing over $12 billion through fiscal year 2011 for construction of next generation littoral combat ships.76 Similarly, it authorized $1.3 billion from fiscal years 2006 through 2010 for DoD training of foreign military and maritime security forces. United States to sustain homeland defense as well as theater security cooperation missions in waters adjacent to partner nations, UNCLOS "securitization" claims will constitute a continuing planning restraint maritime missions in the near shore environment.
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We will stabilize the outer permissible limit of the territorial sea of other nations at 12 nautical miles." We will gain the leverage to combat effectively excessive territorial sea claims and other excessive claims. At present, there are over a hundred excessive claims throughout the world.' These are notjust rogue states making these claims. Many, including those pertaining to the continental shelf, are from friendly nations or nations with whom we need principled, cooperative relationships. Our status as a nonparty to the Law of the Sea Convention hobbles our efforts to address these claims in an effective manner.
Specifically, I point out the counternarcotics area. There are excessive territorial sea claims that cause significant operational impediments for us on a daily basis. Our status as a nonparty makes it difficult for us to achieve effective operational agreements with those nations that have claims of territorial seas of up to two hundred nautical miles.
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The Coast Guard and other U.S. military forces already rely heavily on the elemental navigation freedoms codified in the Law of the Sea Convention. These protections allow the use of the world’s oceans to meet changing national security requirements. The Convention limits a nation’s territorial sea to no more than 12 nautical miles, beyond which all nations enjoy a high seas navigation regime that includes the freedom to engage in law enforcement activities. The Convention codifies the right to operate freely beyond a nation’s territorial sea and protects this right by limiting excessive maritime claims that often have the effect of creating maritime safe havens for drug traffickers and other criminals. In fiscal year 2003, the Coast Guard maritime interdiction operations occurring on international waters resulted in the seizure of over 135,000 pounds of cocaine, 56 vessels, and 207 arrests. In keeping with our aggressive international crime control strategy, most of these seizures took place on distant maritime transit routes far from our shores. However, during bi-lateral negotiations, several nations have, in the past, questioned our authority to contest certain of their excessive maritime claims simply because we have yet to ratify the treaty. Becoming a party to the Convention will enhance our ability to conduct such interdiction operations and to refute excessive maritime claims. Rather than only basing our law enforcement operations on customary international law, the United States should become a conspicuous and leading party to the treaty that codifies these important navigational rights.
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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.
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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.
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The convention provides two essential and immediate components for responding to piracy off the coast of Somalia. First, the convention permits any state to arrest pirates, seize pirate vessels, and prosecute pirates in the courts of the interdicting naval authority. Second, and equally important, the convention protects the sovereign rights of ocean-going states that participate in antipiracy naval operations in the territorial seas of failed states such as Somalia. This is critical for build- ing international naval flotillas for combating the growing pirate problem in the Indian Ocean.
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Remaining outside LOSC is inconsistent with our principles, our national security strategy and our leadership in commerce and trade. Virtually every major ally of the U.S. is a party to LOSC, as are all other permanent members of the U.N. Security Council and all other Arctic nations. Our absence could provide an excuse for nations to selectively choose among Convention provisions or abandon it altogether, thereby eroding the navigational freedoms we enjoy today. Accession would enhance multilateral operations with our partners and demonstrate a clear commitment to the rule of law for the oceans. For example, under the Convention, warships are authorized to stop and board vessels if they are suspected to be without nationality or engaged in piracy. By joining LOSC, we would “lock in” these authorities as a matter of treaty law and thus strengthen our ability to conduct counter-piracy operations across the globe and provides an important tool to support counter-proliferation efforts, and maritime interdiction of terrorists and illegal traffickers tied to terrorism.