U.S. position as a leader has been damaged by non-participation
U.S. failure to ratify UNCLOS raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order.
Additionally, our partners lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don’t ultimately become party to them, especially as in the case of UNCLOS where the U.S. negotiated aggressively to win valuable concessions and won them.
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The events of the past quarter-century, and particularly the world-changing tragedies of September 2001, have made it more imperative than ever that the United States accept this convention. As the United States seeks a higher level of international cooperation in executing the fight against terror- ism, and as the U.S. Navy, Marine Corps, and Coast Guard look to enhanced levels of global maritime cooperation to safeguard critical interests held in common, the failure of the United States to become a party to the Convention is impeding U.S. strategies and programs. Indeed, the Navy and Coast Guard have taken leadership roles in advocating adoption. ￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼
If the United States has learned anything since 9/11, it is the importance of international cooperation and of having coalition partners in any significant endeavor—from disaster response and humanitarian relief, to peacemaking and peacekeeping, to warfighting. Free and unhampered use of the world’s oceans is a necessary condition for the United States to form coalitions of like-minded nations and for the Navy to operate on and from the sea with coalition navies and pursue the Global Maritime Partnership Initiative (i.e., the 1000-ship navy) and work with the navies of other peace- loving nations.1 Part and parcel to this is for all nations concerned to have a common frame of reference for the legal regime of the oceans.
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For the United States to refuse to adhere to a Convention even after the rest of the world met every single one of our demands for changes to the Convention will severely impact the ability of the United States to negotiate international agreements. I believe this will have a particularly serious effect on our security interests, many of which depend on mobilizing our allies. Certainly, as a sovereign nation, we have every right to negotiate a treaty and then decide not to ratify, but in this instance, where we specified the changes necessary for United States support that were then agreed to by the rest of the world, even some of our closest friends have difficulty understanding our behavior in not moving forward to date. A failure to ratify at this point will have adverse effects for our foreign relations with even some of our closest allies. We are the world’s most powerful military power, but we still need the understanding and support of our friends – and we need to act with consistency and reliability in our foreign policy;
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What is at stake is nothing less than the United States’ position as the world’s leading maritime power. Clearly, U.S. refusal to ratify this Convention, widely regarded as one of the most important international agreements ever negotiated, raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order. This, in turn, makes the United States little more than an outsider looking in at the most comprehensive maritime treaty ever written and perhaps most perniciously, unable to propose any future amendments and less able to effectively counter other states’ proposed changes in treaty law that would be disadvantageous to the United States.6
In his remarks soon after assuming the post of Chief of Naval Operations, Admiral Mullen challenged the Navy “not to accept the status quo.” On the 25th anniversary of the signing of the Law of the Sea Convention, the Navy and its Sea Service partners must take an even more prominent leadership role in mustering public support for this treaty—support so overwhelming that the Senate will be motivated to bring it to a floor vote. To do anything less would be to forgo a viable path to stability and safety at sea and cede the world’s oceans to uncertainty and anarchy.
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Isolationism is not a strategy for victory against terrorism. The threat is global and our engagement must be global. That inevitably means that we must enhance our ability to influence other nations and to multiply United States actions through cooperative actions worldwide. If our country is viewed as simply turning inward and being unwilling to participate internationally despite agreements in which we have clearly served our interests, we will not facilitate such needed assistance from others. United States adherence to the Law of the Sea Convention will be carefully monitored by our allies, all of whom have been urging us to move forward, and it will have an impact on the climate in the war on terrorism, as well as other security and foreign policy objectives of the United States. The view that such [email protected] considerations are unimportant is profoundly unrealistic. The Law of the Sea Convention is low hanging fruit that lets us send a clear message: America will support good international agreements, but it will stand firm against the bad ones. This differentiated message is crucial. If we are viewed as simply opposing all international agreements, no matter how favorable to the United States (as this one truly is), we will have far less ability to multiply our national interests through cooperative actions with others.
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More difficult to measure than what would be gained from U.S. accession is the diplomatic blight on America’s reputation for rejecting a carefully negotiated accord that enjoys overwhelming international consensus, one that has been adjusted specifically to meet the demands put forth by President Reagan two decades ago. Remaining outside the convention undermines U.S. credibility abroad and limits the ability of the United States to achieve its national security objectives. The treaty was negotiated over decades during which American delegations scored important victories. To the dismay of the rest of the world that negotiated the convention with the United States in good faith (and is now proceeding in making ocean policy and setting legal precedent in forums where U.S. influence is diminished), after fifteen years the Senate has yet to have an up or down vote.
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Finally, the linkage between the need for the U.S. to maintain a strong position to defend U.S. and allies interests and the need to ratify UNCLOS has been cited in previous war games with international players at the Naval War College, such as the recent Global Maritime Partnership Game. Players perceived a gradual erosion of U.S. influence among current and future maritime partners that may have negative effects on U.S. interests. The need for U.S. leadership to ratify UNCLOS is warranted in order to prevent the erosion of U.S. influence among partners and in theaters of operation.
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The 1982 Convention on the Law of the Sea may seem an obscure agreement to nonexperts. That is not the case. The convention is a carefully negotiated international agreement numbering several hundred pages that covers a host of measurable national security, economic, and environmental issues of vital strategic importance to the United States. By remaining a nonparty to the convention, the United States not only forfeits these concrete interests but also undermines something more intangible: the legitimacy of U.S. leadership and its international repu- tation. For example, American pleas for other nations to follow pollution and fishing agreements ring empty when the United States visibly rejects the Law of the Sea Convention. Remaining outside the convention also hurts its diplomatic hand in other international forums, as well as the perceptions of other states about U.S. commitments to multilateral solutions. As former Supreme Court justice Sandra Day O’Connor has noted, “The decision not to sign on to legal frameworks the rest of the world supports is central to the decline of American influence around the world.”27
The last point I would like to address is that of a resumption of a clear leadership role for the United States in international oceans policy affairs—an area where we have so much at stake.
As the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role. The United States can lead the movement to the achievement of a widely accepted international order, regulating and safeguarding the diverse activities and interests regarding the world’s oceans. The Convention affords us the opportunity to lead in a way that protects and promotes U.S. national security interests. To ensure a leadership role in this important arena, the United States must become a party to the Convention.
By remaining outside the Convention, our long-standing leadership role in international ocean affairs, and in fora such as the International Maritime Organization, would be further eroded. Moreover, as an outsider looking in, we would not be in a position to influence the Convention’s further development and interpretation. In effect, as mentioned earlier, by refusing to become a Party to the Convention, the only way we could seek to influence changes in the LOS regime would be through unilateral action, and that could lead to further destabilization and increased international friction.
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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.
The United States is party to many international agreements - including conventions pertaining to vessel safety, environmental protection and fisheries management - which are based directly on the LOS framework. Those United States representatives who participate in the negotiation of these agreements are among the strongest advocates for accession to the LOS Convention.
For example, the Coast Guard, which has played a lead role in developing international agreements on maritime safety, security and environmental protection at the International Maritime Organization (IMO), and also participates in fisheries negotiations, told our Commission that: "[A] failure to accede to the Convention materially detracts from United States credibility when we seek to advance our various ocean interests based upon Convention principles. Also, as a non-party, we risk losing our ability to influence international oceans policy by leaving important questions of implementation and interpretation to others who may not share our views." In testimony before our Commission, then-Commandant Admiral James Loy, and more recently the current Commandant, Admiral Thomas Collins, both strongly supported United States accession to the LOS Convention.