U.S. Navy's freedom of navigation is continually challenged by excessive claims
U.S. Naval forces are continually challenged by more than 100 illegal, excessive claims around the globe that adversely affect vital navigational and over-flight rights and freedoms. Accession to UNCLOS would give the U.S. Navy more tools to help rollback these violations.
Quicktabs: Arguments
The Law of the Sea Convention is a key weapon in this struggle for our oceans’ freedom. The United States won through the negotiations the core elements of that freedom. To abandon that win is the legal equivalent of unilateral disarmament for the United States in the struggle for freedom of the seas. The price we will pay through time for any such error in judgment will be high. In essence the critics who would have us abandon a rule of law in the world’s oceans may effectively be asking American servicemen and women someday to pay with their lives for the absence of such a rule of law. This is not mere hyperbole; already disputes about the oceans regime have cost American lives. Thus, an American aircraft in lawful overflight of the high seas was forced down by Peru in asserting an illegal claim over an extended area of the seas. More recently, harassment by Chinese fighters brought down a United States aircraft engaged in lawful activities under the 1982 Convention. And, at minimum, the economic cost of new naval configurations designed to get around a creeping loss of freedom – possibly with required pay-offs to coastal states – could be considerable.
In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute, particularly with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China’s EEZ. The position of the United States and most countries is that while the United Nations Convention on the Law of the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters.6 The position of China and 26 other countries (i.e., a minority group among the world’s nations) is that UNCLOS gives coastal states the right to regulate not only economic activities, but also foreign military activities, in their EEZs. In response to a request from CRS to identify the countries taking this latter position, the U.S. Navy states that countries with restrictions inconsistent with the Law of the Sea Convention [i.e., UNCLOS] that would limit the exercise of high seas freedoms by foreign navies beyond 12 nautical miles from the coast are [the following 27]: Bangladesh, Brazil, Burma, Cambodia, Cape Verde, China, Egypt, Haiti, India, Iran, Kenya, Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Saudi Arabia, Somalia, Sri Lanka, Sudan, Syria, Thailand, United Arab Emirates, Uruguay, Venezuela, and Vietnam.7
Other observers provide different counts of the number of countries that take the position that UNCLOS gives coastal states the right to regulate not only economic activities but also foreign military activities in their EEZs. For example, one set of observers, in an August 2013 briefing, stated that 18 countries seek to regulate foreign military activities in their EEZs, and that three of these countries—China, North Korea, and Peru—have directly interfered with foreign military activities in their EEZs.8
These excessive claims are cause for particular concern because they cover the full spectrum of maritime possibilities and because they are being made by the full spectrum of the community of nations. For example:
- Argentina, Italy, Panama, and Russia have historic bay claims that do not comply with international norms.
- Canada, China, Costa Rica, North Korea, Portugal, Vietnam, and others have sig- nificant excessive baseline claims.
- Cape Verde, Indonesia, and the Philippines have sought to impose restrictions on archipelagic sea lanes passage not contemplated by the 1982 Convention.
- China, Djibouti, Egypt, Indonesia, North Korea, Pakistan, and the Philippines have articulated various nonconforming restrictions on innocent passage.
- Argentina, Canada, Italy, Spain, and others have sought to impose restrictions on straits used for international navigation.
- Brazil, Ecuador, and Peru have restrictions on aircraft overflight in their exclusive economic zones inconsistent with the convention.
- Cape Verde, Finland, Iran, Sweden, and others have declared warships to be sub- ject to special coastal state regulation.34
This is just a sampling of excessive maritime claims, but the diversity of types of claims and the character and numbers of nations involved suggest that continuous U.S. challenges to these will require substantial effort. The financial and diplomatic costs, as well as the overall risks associated with the use of such forces, are likely to be substan- tially higher in the absence of a specific, binding treaty, and the long-term effectiveness of challenge programs remains doubtful in the view of some commentators.35 Many of the nations making claims that the United States considers excessive assert that the convention is a legal contract, the rights and benefits of which are not necessarily available to non-parties. The continual counter-assertion by the United States that these rights and benefits are embodied in customary international law may be difficult to sustain. The situation may well have been summed up best by Rear Admiral Schachte: "The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order."36
[MYTH]: U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).15Sink the Law of the Sea Treaty — Bandow, Doug. — Cato Institute — Mar 15, 2004 [ More ]
But our navigational freedoms are indeed threatened. There are currently more than a hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights as reflected in the Convention. But these operations entail a certain amount of risk—for example, the Black Sea bumping incident with the former Soviet Union in 1988. Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert its rights and affording additional methods of resolving conflict.
Myth: Freedom of navigation is only challenged from "[t]he Russian navy [that] is rusting in port [and] China has yet to develop a blue water capability...." (14)Sink the Law of the Sea Treaty — Bandow, Doug. — Cato Institute — Mar 15, 2004 [ More ]
The implication here is that the principal challenge to navigational freedom emanates from a major power and that we do not have any particular national concerns about freedom of navigation. But the 1982 convention deals with the law of peace, not war or self-defense. Thus, this argument misses altogether the serious and insidious challenge, which, again, is what the convention is designed to deal with; these repeated efforts by coastal nations to control navigation, including those from U.S. allies and trading partners, have through time added up to death by a thousand pin-pricks. This is the so-called problem of "creeping jurisdiction" which remains the central struggle in preserving navigational freedom for a global maritime power. After years of effort, we have won in the convention a legal regime that supports our efforts to control this "creeping jurisdiction." To unilaterally disarm the United States from asserting what was won against illegal claimants is folly and undermines our national security.
Myth: U.S. adherence to the convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy). Wrong--it is not true that our navigational freedoms are not threatened. There are more than 100 illegal, excessive claims around the globe that adversely affect vital navigational and over-flight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist excessive maritime claims by other countries that interfere with U.S. navigational rights as reflected in the convention. On occasion, these operations have entailed a certain amount of risk (e.g., the Black Sea bumping incident with the former Soviet Union in 1988). Being a party to the convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert its rights, thus affording additional methods of resolving conflict and aligning expectations of behavior at sea.
Coastal states can also be expected to want more control of their off-shore waters and airspace for domestic security reasons.67 "Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict ." California Western International Law Journal. Vol. 32. (2001-2001): 253-302. [ More (4 quotes) ] As technology advances, coastal states can reasonably be expected to seek a legal regime that makes it more difficult for foreign militaries to exploit advancements in the range and accuracy of weapons and intelligence-gathering inherent in manned and unmanned aerial, surface, and underwater vehicles, as well as over-the-horizon weaponry and specialized littoral platforms.
Moreover, the nature of threats such as terrorism; weapons of mass destruction; and arms, drugs, and human-trafficking encourage coastal states to extend surveillance and control beyond their territorial seas and in some cases even into others’ EEZs.68 In the aftermath of September 11, many nations, including the U.S., have increased surveillance of their coastal areas.69
To varying degrees and through various methods, coastal states have objected to military activities in their respective EEZs through the years. Whatever their historical weaknesses and current political rivalries, coastal states continue to share important interests and continue to face what Professor Bernard Oxman calls the “territorial temptation” to expand control over their off-shore waters.70
Moreover, numerous states question the United States’ very right to enforce navigational freedoms conferred by the Convention when it is not party to it. It is likely that U.S. accession would decrease the number of state claims inconsistent with international law and also decrease the number of freedom of navigation challenges the Navy would have to conduct.
The global demands on the Navy and Coast Guard come at a time when the size of the nation’s Fleets has shrunk to unprecedented low levels. As fewer and fewer U.S. ships are available to support U.S. and coalition interests worldwide, it is more imperative than ever that these ships be able to exercise the rights of innocent passage, transit passage, and archipelagic sea lanes passage without asking prior permission or providing prior notification to coastal states. Equally important is the right of warships to operate freely and conduct military activities in the exclusive economic zones of all nations. These are rights that are being increasingly challenged by coastal nations.
The proliferation of excessive coastal-state restrictions on military activities in the exclusive economic zone should be a growing concern to all maritime nations. Such restrictions are inconsistent with the 1982 UN Convention on the Law of the Sea and customary international law, and they erode the balance of interests that was carefully crafted during the nine-year negotiations that led to the adoption of UNCLOS. All nations must remain engaged, both domestically and internationally, in preserving operational flexibility and ensuring that the balance of interests reflected in UNCLOS is not eroded any further. The bottom line is that while UNCLOS grants coastal states sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources in the EEZs, it does not authorize them to interfere with legitimate military activities, which include much more than just navigation and overflight. Accordingly, U.S. warships, military aircraft and other sovereign immune ships and aircraft will continue to exercise their rights and freedoms in foreign EEZs, including China’s, in accordance with international law.
U.S. navigation on the high seas is affected by its non-ratification of UNCLOS III. For example, if a U.S. naval task force had to rush from the Persian Gulf to a crisis along the North Korean peninsula, it could be forced to detour 3,000 miles around Indonesia.234 Another example is the barring of U.S. tankers from the Strait of Hormuz-the strait in which most American foreign oil is shipped-by Iran.235 Finally, Russia could institute fishing trawlers off the coast of Alaska that would take millions of tons of salmon found in American waters.236 None of these things would be possible if the United States ratifies UNCLOS III. UNCLOS III may aid the United States in ensuring that the naval ships and submarines can navigate freely along the high seas, that cargo ships and tankers may navigate along the world's sea lanes, and that the United States retains control over the resources found in the deep sea.237 As long as the United States remains a nonparty, it will not be able to rely on the protections provided by UNCLOS III.
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The authors review the threat from China's aggressive claims in the South China Sea to the global maritime order and recommend a number of ways (short of ratifying UNCLOS) that the U.S. can "safeguard U.S. interests and raise the costs of further destabilizing Chinese behavior."
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