U.S. ratification of UNCLOS best way to preserve freedom of navigation rights
The Law of the Sea Convention is the bedrock legal instrument for public order in the world’s oceans. It codifies, in a manner that only binding treaty law can, the navigation and overflight rights, and high seas freedoms that are essential for the global strategic mobility of U.S. Armed Forces, including:
- The Right of Innocent Passage, which allows ships to transit through foreign territorial seas without providing the coastal State prior notification or gaining the coastal State’s prior permission.
- The Right of Transit Passage, which allows ships, aircraft, and submarines to transit through, over, and under straits used for international navigation and the approaches to those straits.
- The Right of Archipelagic Sealanes Passage, which, like transit passage, allows transit by ships and aircraft through, over, and under normal passage routes in archipelagic states, such as Indonesia.
- The right of high seas freedoms, including overflight and transit within the Exclusive Economic Zone.
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The Convention codifies navigation rights and freedoms essential for the global mobility of our armed forces and the sustainment of our combat troops. Benefits include:
- a 12 nautical mile limit to territorial seas
- innocent passage through territorial seas
- archipelagic sea lanes passage though island nations like Indonesia
- laying and maintaining submarine cables for communication warship right of approach and visit
- sovereign immunity of warships and public vessels
- transit passage in international straits (and their approaches)
- high seas freedoms in exclusive economic zones (EEZs)
The last two are the most important. Transit passage gives us freedom of movement above, on, and below the surface in critical chokepoints such as the Straits of Singapore and Malacca, Hormuz, and Gibraltar, and the Bab el Mandeb. Exercising high seas freedoms in foreign EEZs includes conducting military activities.
Our non-party status is hurting us. It denies us a seat at the table when the 155 parties to the Convention interpret (or try to amend) those rights and freedoms; it denies us use of an important enforcement tool against coastal state encroachment (binding dispute resolution); it hinders us in our efforts to recruit more countries to the Proliferation Security Initiative (PSI); it creates a seam between us and our coalition partners; it prevents us from gaining legal certainty for our extended continental shelf in the Arctic (and elsewhere); and it denies U.S. companies access to deep seabed mining sites.
Relying on customary international law as the basis for those rights and freedoms is an unwise and unnecessary risk. Our Soldiers, Sailors, Marines, Airmen, and Coast Guardsmen put their lives on the line, every day, to preserve the rights and freedoms codified in the Convention; they deserve to be on the firmest legal ground possible as they go into harm’s way; they deserve the legal certainty that accrues from treaty based rights.
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A seventh reason for United States accession to the convention is the changing global security environment. A diminishing access to overseas bases coupled with con- tinuing instability in many parts of the world requiring naval presence (Somalia and Haiti are but two examples), when coupled with the growing naval power of many developing nations with regional ambitions, point to an increasing need for naval mobility by the United States. The last 2 decades in particular have witnessed an increase in naval conflicts as well as demarcation and fishing disputes." These trends make the need for a firmly stated and fully accepted compact ensuring maritime and naval mobility all the more necessary.23
The ability of the United States to achieve maximum flexibility and mobility within this changing global security environment could be greatly enhanced by accession to the 1982 Convention and the concomitant stabilizing of the world's oceans. This also has the strong potential to minimize and control disputes that directly or indirectly prejudice U.S. political, economic, and defense interests.24 As the world's leading maritime power, the United States must place a uniquely high premium on the ability to move by sea anywhere on the globe. While the current lack of an established global regime has not yet resulted in any overt denial of U.S. transit rights through straits or archipelagic waters, the issue is becoming a more contentious one." It is likely that a universally recognized treaty could avert such problems.
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Freedom of the seas issues addressed in UNCLOS are also important for U.S. naval forces, beyond an increasingly accessible Arctic due to melting sea ice. U.S. naval forces depend upon global strategic mobility and tactical maneuverability to conduct the spectrum of sea-air-land operations in the pursuit of national interests. Similar to NSPD-66, the 2005 United States National Strategy for Maritime Security identified freedom of the seas as a top national priority.22 Also, the Department of Defense and the Joint Chiefs of Staff discussed the major national security benefits of the Law of the Sea Convention in a 1996 report. The foremost benefit seen by this group was reported as global access to the oceans throughout the world—specifically, freedom of navigation, overflight, and telecommunications— and a stable and nearly universally accepted convention to promote public order and free access to the oceans and the airspace above them.23
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Since UNCLOS would not require any change in US maritime policy, some have argued that there is, therefore, no appreciable benefit to joining the Convention. On the contrary, UNCLOS would equip the US with certain diplomatic tools that would otherwise be unavailable.178 Proponents concede, however, that operationally nothing would change in terms of US Naval procedure.179 Nevertheless, it remains difficult to deny that UNCLOS would provide measurable benefits towards the US Navy's ability to achieve its maritime objectives.180
For example, at one point, the Libyans had a very restrictive interpretation of freedom of the seas as it applied in the Gulf of Libya.181 During this time the United States pursued a policy where it would deliberately sail out into waters, considered by the Libyans, as waters in which they possessed a greater degree of jurisdiction than the United States recognized.182 Such policies involved a considerable amount of risk placed on both the forces undertaking the exercises in question, and on aggravating an already delicate diplomatic situation. Therefore, although the US will always exercise its navigational rights, the tools available within the UNCLOS framework reduce the level of risk inherent in the continual exercise maritime power in order to maintain freedom of navigation.183 Another example of the diplomacy enhancing features UNCLOS is illustrated through China, a UNCLOS State-party, who has drawn widespread criticism for its exaggerated jurisdictional claims with respect to the South China Sea, way beyond that of what is legally afforded to it under UNCLOS.184 However, as it stands today, the United States is placed in quite the diplomatic quagmire, attempting to deter Chinese derogation from UNCLOS principles that itself has failed to formally agree to. Indeed this, along with other similar endeavors have consistently been undermined due to the tenuous diplomatic position of insisting compliance with a legal regime which the US itself is not even a party.185
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Since development of customary international legal norms is disproportionately shaped by the positions and actions of the world's most politically, economically, and militarily influential nations, the traction of an emerging "securitization" norm could potentially increase as leading state proponents, such as China and India, continue to gain political, economic, and military stature. Similarly, while the actions of landlocked nations can play a role in the development of customary international law of the sea, the role of coastal nations is particularly influential in this regard. However, while crystallization ofa "securitization" norm into customary international law would clearly constitute ultimate success for a nation state "lawfare" practitioner, more realistic intermediate goals are achievable. For example, a coastal nation may successfully dissuade an expeditionary nation from challenging an excessive claim by exploiting the expeditionary nation's political vulnerability or desire to avoid military escalation. Additionally, a coastal nation may effectively undermine an adversary's legitimacy through consistently pressed, specious claims. In either case, an expeditionary nation such as the United States risks incurring additional diplomatic and political costs if it chooses to persist in contested operations. These costs can be conceptualized as "drag" on the U.S. government's ability to protect sea lines of communication, collect intelligence, conduct military hydrologic survey operations, and maintain the required force structure to accomplish these. Therefore, the opportunity costs associated with non-membership in UNCLOS can be meaningfully correlated to the vulnerabilities associated with maritime "lawfare"-operational latitude, legitimacy, and maximal effective ability to influence maritime law and policy.
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These important provisions for navigational freedom are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth, and for lessening the risks of conflict involving efforts to assert jurisdiction over warships and other vessels entitled to sovereign im- munity. For “zone-locked” states, the absence of these navigational freedoms would mean losing access to the oceans as though the state were land- locked. Indeed, without the clear legal recognition of these fundaments of navigational freedom, UNCLOS would not have been possible. Sadly, however, the international community must be diligent in combating the challenges to navigational freedom that still exist. These include:
- Aberrant and vague “area” claims such as the old “Libyan Line of Death,” the Chilean “Mar Presencial,” China’s “nine-dashed-line” and North Korea’s 50-mile security zone claim;
- Excessive straight baseline claims;
- Excessive claims concerning innocent passage in the territorial sea; particularly claims concerning consent or notification for warships; claims which have never been accepted as part of oceans law and which have been jointly rebutted by the United States and Russia in the Jackson Hole Statement of September 23, 1989;
- llegal claims asserting ship construction or operation standards for transit through the territorial sea or the economic zone which have not previously been adopted through the IMO mechanism; and
- Claims limiting full high seas navigational freedoms in the exclusive economic zone.
For the most part aberrant and vague area claims and claims beyond permissible limits for the territorial sea and economic zone seem to be slowly re- ceding as the Convention takes greater hold each and every year. The more concerning problems for the future likely relate to the “character” of each of these zonal areas in UNCLOS. We must not permit gradual encroachments to roll back the core UNCLOS compromise of extended coastal state resource rights in return for full navigational freedom in the EEZ and straits transit rights through, over, and under straits used for international navigation.
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Freedom of navigation is the main reason why the George W. Bush administration announced its support for U.S. accession shortly after the 9/11 attacks in 2001.30 The administration likely finds that the Convention's navigational and national security benefits far outweigh any costs to the U.S. joining the Convention. Military security relates to self-defense, which the Convention pre- serves,31 and to port security, which the Convention facilitates by incorporating security requirements developed through the Inter- national Maritime Organization.32 The Convention also assures rights of navigation and overflight, including transit passage through strategic straits and archipelagic sea lanes passage,33 as well as the immunity of warships.34 The U.S. insisted on strengthening rights of navigation and overflight during the Third United Nations Conference on the Law of the Sea Conference (UNCLOS III), and in making them more objective with what appears in the 1958 Territorial Sea Convention.
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Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.36 This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.37 Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Commit- tee, "some coastal states contend that the navigational and over- flight 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."38 if it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program39 or negotiating new bilateral agreements.40 The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.
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To date, U.S. military forces have successfully protected American shipping and the homeland from sea-based attack without the benefits of the convention. Why is it imperative to join the convention now? What does the convention provide that distinguishes it from existing treaties and the customary international law upon which the United States has depended for the past five decades?
In short, the convention provides the protection of binding international law in four categories of essential navigation and overflight rights. Together, these rights ensure the strategic and operational mobility of U.S. military forces and the free flow of international commerce at sea. Joining the convention guarantees that 156 states recognize the following basic rights of U.S. military forces, commercial ships, civilian aircraft, and the foreign-flagged vessels that carry commerce vital to U.S. economic security:
- Right of Innocent Passage. The surface transit of any ship or submarine through the territorial seas of foreign nations without prior notification or permission.
- Right of Transit Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over straits used for international navigation, and the approaches to those straits.
- Right of Archipelagic Sealanes Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over all normal passage routes used for international navigation of “archipelagic waters,” such as those claimed by the Philippines and Indonesia.
- Freedom of the High Seas. The freedoms of navigation, overflight, and use of the seabed for laying undersea cables or pipes on the high seas and within the exclusive economic zone of a coastal state.
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The United States might react to these coastal state navigational restrictions in four possible ways.32 First, it could acquiesce in them, a reaction that would significantly restrict navigational freedoms important to the United States. Second, the United States could continue to assert, via diplomatic channels, a customary international law right to navigation, backing up its assertions with naval exercises. Although the United States has been following this practice since 1979 under its Freedom of Navigation Program, this option is expensive. It is expensive in terms of dollars, potential confrontations, and prejudice to other U.S. interests in the coastal state.33 Furthermore, this option may not contribute to a stable legal regime, since some U.S. claims under customary international law could compete with coastal state assertions of different emerging rules of customary international law. Third, the United States could negotiate bilateral treaties to preserve U.S. navigational rights in other states' coastal zones. This option is also expensive. Small states, not interested in sailing their vessels or conducting military exercises in U.S. waters, would expect other new military, economic, or political concessions in exchange for allowing the United States to conduct military exercises or navigate in their coastal zones. Finally, the United States could accept the multilateral Law of the Sea Convention. With respect to navigation rights, this treaty provides a stable legal base from which to promote freedom of navigation rules. Its written and hard-to- change rules, though not always highly determinate, at least narrow the range of disputes over permissible and impermissible restrictions on navigation. Convention proponents have strong consequentialist arguments to support the position that the Con- vention's freedom of navigation provisions benefit the United States.