U.S. adversaries are using its absence from UNCLOS to push excessive maritime claims
The U.S. is currently tracking dozens of excessive claims by states, some of which are from states seeking to take advantage of perceived U.S. weakness due to its non-party status to UNCLOS. Regardless, the U.S. would be in a better position to contest these claims (and dissuade further claims) as a party to UNCLOS.
If adherence to the Convention made no difference perhaps this would simply be another lesson that strident political debate can sometimes harm the nation, as with the isolationist rhetoric of the America First Movement before World War II. But sadly the over quarter-century of United States non-adherence is severely harming the Nation. On a daily basis adversaries such as Iran use American non-adherence to assert that our Navy does not enjoy the protections of the Convention. China uses our non-party status to challenge our naval presence in the South China Sea and the Yellow Sea. We are unable to participate fully in the most important institutions for engaging on oceans law today, such as the annual meeting of States Parties to the Convention and the Commission on the Limits of the Continental Shelf. By not taking our seat on the Council of the ISA we lose our veto over any distributions. By not adhering we also lose our ability to block potentially damaging amendments to the Convention.
Maritime disputes of this sort, also involving the use or threatened use of military force, have surfaced in other parts of the world, including the Sea of Japan, the Celebes Sea, the South Atlantic, and the Eastern Mediterranean. In these and other such cases, adjacent states have announced claims to large swaths of ocean (and the seabed below) that are also claimed in whole or in part by other nearby countries. The countries involved cite various provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to justify their claims—provisions that in some cases seem to contradict one another.
Because the legal machinery for adjudicating offshore boundary disputes remains underdeveloped, and because many states are reluctant to cede authority over these matters to as-yet untested international courts and agencies, most dispu- tants have refused to abandon any of their claims. This makes resolution of the quarrels especially difficult.
What makes these disputes so dangerous, however, is the apparent willingness of many claimants to employ military means in demarking their offshore ter- ritories and demonstrating their resolve to keep them. This is evident, for example, in both the East and South China Seas, where China has repeatedly deployed its naval vessels in an aggressive fashion to assert its claims to the contested islands and chase off ships from all the other claimants. In response, Japan, Vietnam, and the Philippines have also employed their navies in a muscular manner, clearly aiming to show that they will not be intimidated by Bei- jing. Although shots have rarely been fired in these encounters, the ships often sail very close to each other and engage in menacing maneuvers of one sort or another, compounding the risk of accidental escalation.
Of greatest concern, however, is the growing number of states that illegally claim the authority to restrict military activities out to 200 nm – 26 to be exact.26 These claims are not supported by a majority of states, the negotiating history of UNCLOS III or a plain reading of the Convention. These nations inaccurately and illegally cite various provisions of UNCLOS, such as the residual rights clause in Article 59 and the peaceful purposes provi- sions in Articles 88, 141 and 301, as their authority for their excessive claims. However, these provisions are entirely spurious and do not support restrictions on military activities in the EEZ.27 In fact, the plain reading and negotiating history of these provisions indicates the exact opposite conclusion. U.S. accession to the Convention isn’t going to change these nations’ self-serving and inaccurate views.
However, as a non-Party to UNCLOS, the United States lacks standing to challenge other nations’ excessive claims in the Arctic citing the provisions of the Convention. The same is true in other regions of the world. China, for example, continues to pursue an aggressive posture in the South China Sea and routinely criticizes the United States for not being a Party to UNCLOS—“the U.S. insists that China must base its [South China Sea] claims solely on the 1982 UNCLOS although the U.S. itself has not ratified it.”60 Similarly, when Iran signed UNCLOS in 1982, it filed a declaration indicating, inter alia, that “only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein, [including] the right of Transit passage through straits used for internation- al navigation.”61 Thus, Iran argues that the United States does not enjoy a right of transit passage through the Strait of Hormuz because that right is contractual in nature. Joining the Convention would put the United States on solid legal ground to conclusively “put to bed” these assertions.
The Convention also allows us to exercise high seas freedoms in foreign exclusive economic zones, including conducting military activities without coastal state interference. And this is important---the single most contentious issue in oceans law and policy today is the attempt by some foreign coastal States to treat the exclusive economic zone – or EEZ — like a territorial sea. The Convention makes clear that coastal States enjoy resource rights within the EEZ, but they do not enjoy and may not assert full sovereignty within the EEZ.
Because we are not a Party to the Law of the Sea Convention today, we must assert that our navigation and overflight rights and high seas freedoms are based upon customary international law. However, that approach plays directly into the hands of those foreign coastal States that want to move beyond the Convention. They too cite customary international law as the basis for their developing claims of coastal State sovereignty in the EEZ and in international straits.
We need to lock in the navigation and overflight rights and high seas freedoms contained in the Convention while we can. Then, acting from within the Convention, we can exercise effective leadership, and in conjunction with our freedom of navigation program, ensure that those rights and freedoms are not whittled away by foreign States.
Naval Mobility. A seventh factor that underlay the new United States position on the Convention was the global security environment, specifically the increased importance of the oceans connecting the nation, its allies, and its major interests. Diminishing access to overseas bases, the many parts of the world that require naval presence because of continuing instability, and the growing maritime power of many developing nations with apparent regional ambitions pointed to the increasing importance for the United States of naval mobility. An essential element of such mobility is assurance that sea and air lanes of communication will remain open as a matter of international legal right—not at the sufferance of coastal and island nations along the route or in the area of operations.38
In the last two decades there had been a remarkable number of naval confron tations and boundary demarcation or fishing disputes: from 1974 to 1990, at least thirty-seven major demarcation disputes, fifteen noteworthy fishing disagreements, and thirty-one naval conflicts. Eighty-three percent of all US. military responses from 1946 to 1991 had involved naval forces, about half of them solely naval ones. Since the 1986 Goldwater-Nichols Act, with its emphasis on joint operations, fewer operations have been exclusively naval in character, but an even higher proportion—95 percent—have involved naval units. Additionally, the focus of these efforts has overwhelmingly been in littoral waters. In all 270 instances of the employment of naval forces in crisis response from 1946 to 1991, they were used not to counter other naval forces but rather to oppose threats on land. The naval forces therefore had to operate in coastal waters, not the high seas, to project power from the sea onto the land.”
Notwithstanding the fact that the navigational freedoms and transit rights we currently enjoy are embodied in customary international law, as a party to the Convention, the United States would, however, be in a stronger leadership position to assert its rights to use the oceans for navigation and overflight. For example, in making excessive claims, some coastal states contend that the navigational and overflight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it. By becoming a party to the Convention we can deprive those states of this argument. This is not to suggest that countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention. Coastal states make excessive claims for a variety of reasons— because they believe such claims to be in their national interest; because they feed domestics politics; and, because they believe they can enforce those claims or that other nations will, for lack of resources and capability, acquiesce in those claims. The Administration believes, however, that with the United States as a party, fewer states are likely to view such claims as sustainable. As a party, our diplomatic and operational challenges to excessive claims will carry greater weight.
More effective engagement with respect to security incidents and concerns resulting from illegal oceans claims by others. Examples include the new law of the People’s Republic of China (PRC) providing that Chinese civil and military authorities must approve all survey activities within the 200 mile economic zone; the PRC harassment of the Navy’s ocean survey ship, the USNS Bowditch, by Chinese military patrol aircraft and ships when the Bowditch was 60 miles off the coast; the earlier EP-3 surveillance aircraft harassment; Peruvian challenges to U.S. transport aircraft in the exclusive economic zone, including one aircraft shot down and a second incident in which two U.S. C-130s had to alter their flight plan around a claimed 650 mile Peruvian “flight information area”; the North Korean 50-mile “security zone” claim; the Iranian excessive base line claims in the Persian/Arabian Gulf; the Libyan “line of death”; and the Brazilian claim to control warship navigation in the economic zone;