Defense department has consistently advocated ratification of UNCLOS
Top defense officials, including the current and all former Chiefs of Naval Operations, have lined up to publicly support U.S. accession to UNCLOS. In addition, the Defense Department has repeatedly endorsed ratification in numerous studies and planning documents.
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As already noted, Donald Rumsfeld played a key role in stopping the United States and other nations’ treaty ratification efforts in the 1980s. It is a compelling point, therefore, to note that Secretary Rumsfeld’s Defense Department urged Treaty accession in 2003. On October 21, 2003, a deputy assistant secretary of defense testified that the Convention is “critical to the United States Armed Forces.”53 The basis for Defense Depart- ment accession support was based in part on navigation rights deemed “critical to mili- tary operations” and “essential to the formulation and implementation of [U.S.] national security strategy.”54 While some have contended that these and other law of the sea rights could be exercised employing the “reflection” approach, the Defense Department identified certain additional benefits that would come only with accession, includ- ing participation in international maritime fora and Convention-established entities.55 Participation, noted the Defense Department representative, would allow the United States to “prevent the erosion of navigational rights and freedoms . . . [and work toward] international consensus proscribing the maritime trafficking of weapons of mass destruc- tion.”56 While recommending Treaty accession, the Defense Department did identify a number of issues that it deemed worthy of Senate attention, and one of these will be noted here.
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Conservative political factions are not in favor of working in cooperation with United Nations (parent organization of the International Maritime Organization (IMO) Furthermore, they do not want the United States to subject itself to international tribunals have effectively prevented U.S. accession to UNLCOS. But UNCLOS accession is supported from all the military service chiefs and the Chairmen of the Joint Chiefs, who have traditionally been highly selective with respect to treaties and how they potentially affect U.S. service members. For example, they expressed concern over the Rome Statute of the International Criminal Court (ICC) because it was believed to place U.S. personnel at risk for trial by an international tribunal. But this is not true for UNCLOS because the service chiefs believe UNCLOS will support, rather than thwart, U.S. operations.22 As the principal force behind the negotiation of UNCLOS in Montego Bay back in 1982, the treaty encompasses everything the U.S. military wants, and is not the “bogey man.”
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Every Chairman of the US Joint Chiefs of Staff has supported UNCLOS since it was originally sent to the Senate for advice and consent in 1994.174 Joining UNCLOS would in no way impede the US military in accomplishing its global objectives or in asserting maritime power. Every commander of the various US combatant forces as well as the Director of National Intelligence has confirmed this claim.175 Additionally, joining UNCLOS would require the military to make no changes to existing policy with respect to the use of oceans.176 In other words, UNCLOS would not adversely affect the US military in any way; in fact, acceding to the Convention would significantly enhance US strategic goals and strengthen US ability to apply maritime power effectively.177
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In recent years, many of the most senior U.S. military officers have further articulated the national security benefits of the Convention. The Navy has been one of the strongest supporters of the Convention, with every serving and former Chief of Naval Operations lining up to publicly support U.S. accession.61 In 2004 when the U.S. Senate was actively considering the treaty, the Joint Chiefs of Staff, the worldwide four-star unified combatant commanders, and the Chief and Vice Chief of Naval Operations strongly supported U.S. accession to the Convention.62 These uniformed senior flag and general level officers provided ample testimony to the Senate concerning the broad range of national security interests the Convention directly promoted. The treaty “helps [to] assure access to the largest maneuver space on the planet—the sea—under authority of widely recognized and accepted law and not the threat of force.”63 The United States benefits from the navigational regimes of innocent passage and transit passage through straits and archipelagos, the exercise of high seas freedoms in the EEZ and high seas, as well as the concept of sovereign immunity for warships and other public vessels and public aircraft.64 Also in 2004, the Chairman of the Joint Chiefs of Staff said the Convention helps U.S. forces to “operate freely across the vast expanse of the world’s oceans under the authority of widely recognized and accepted international law.”65 Additional testimony in support of the national security benefits of the treaty is included in the 2004 Report of the Senate Foreign Relations Committee, which voted the treaty out of committee in a bipartisan 19-0 vote.66
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In a 1996 report, the Department of Defense and the Joint Chiefs of Staff set forth the major national security benefits of the Law of the Sea Convention.54 The foremost benefit is global access to the oceans throughout the world, including areas adjacent to coastal states, which include the contiguous zone and the EEZ.55 These interests extend to U.S. security and economic interests in global high seas freedoms, including freedom of navigation, overflight, and telecommunications.56 Benefits also include a stable, comprehensive, and nearly universally-accepted Convention, modified by the 1994 Agreement, to promote public order and free access to the oceans and the airspace above it.57
MOORE: Second point -- they argue somehow this will be counter to the security and national military interests of the United States of America. Extraordinary since we won absolutely everything that the chiefs sought. They were a very important part of the effort. I traveled around the world with a representative of the Joint Chiefs and DOD in all of the negotiations. We won everything that the chiefs wanted. And you might note that the strongest proponents of this treaty from day one have been the United States military. So a group of non-law of the sea experts, non-international law experts, who do not know the issues, believe that somehow they know better than the chiefs of the United States who have signed a letter that I have in the back of the room called a rare 24-star letter. It's not just from the chairman of the chiefs. Every single one of the chiefs signed it and sent it to the Senate saying this is what we need.