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.
The critics show no understanding of the United States' continuing role as a global protector of navigational freedom. Yet a core issue at stake is the control of unilateral coastal state claims against U.S. shipping, both military and commercial. In this respect, the convention is the most important and historic achievement in the safeguarding of these interests. For example, the new provisions for the protection of straits transit and archipelagic sea lanes passage, as well as the improved provisions for innocent passage in territorial seas, are of utmost importance to U.S. naval mobility. The progressive advancements that the U.S. negotiating team achieved to this end are completely missed by the critics; by second guessing U.S. naval experts, it seems they would rather snatch defeat from the jaws of victory. Paradoxically, by opposing the convention, the critics reinforce the views of Third World nations that the United States defeated in negotiations. We must also never forget that thousands of U.S. servicemen and servicewomen, who volunteer to go in harm's way, depend on the navigation and over-flight provisions guaranteed in the convention. As General Richard B. Myers, the chairman of the Joint Chiefs of Staff, recently stated, "The Convention remains a top national security priority." (4)
"The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.
." Journal of International Affairs
. Vol. 59, No. 1 (Fall/Winter 2005) [ More (18 quotes) ]
[ Page 77 ]
Naval expeditionary forces are also often required to demonstrate naval presence. A significant percentage of naval forces are forward deployed continuously. Such deploy- ments are designed to underwrite regional stability by demonstrating U.S. commitment to allies and friends and promote joint and combined training among friendly forces. They also gain U.S. familiarity with overseas operating environments and provide initial capabilities for timely response to crisis. It is likely that in the years ahead, our naval21 activities will occur more and more in the littoral regions of the world.
The importance of overseas presence was demonstrated in October 1994, when Iraqi Republican Guard divisions began significant movements towards the border with Kuwait. Forward deployed U.S. naval expeditionary forces, centered around the George Washington Battle Group, sortied from the Mediterranean and entered the Red Sea en route to the Persian Gulf less than 2 days after the request for additional forces was made by the Commander in Chief, U.S. Central Command. Additionally, five maritime prepositioned ships at Diego Garcia and U.S. Army ships located in the Western Pacific22 and Indian Ocean proceeded to the gulf as well.
Here again, the Convention helps these naval expeditionary forces achieve impor- tant objectives. In addition to these provisions on passage, the Convention strengthens our ability to operate in these forward areas by providing agreed rules on delimitation of23 24 maritime zones, by preserving high seas freedoms of navigation and overflight, including25 within the exclusive economic zone of coastal states, and by recognizing the special nature of military ships and aircraft in reaffirming the doctrine of sovereign26 immunity.
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Joining the Convention will advance the interests of the U.S. military. As the world’s leading maritime power, the United States benefits more than any other nation from the navigational provisions of the Convention. Those provisions, which establish international consensus on the extent of jurisdiction that States may exercise off their coasts, preserve and elaborate the rights of the U.S. military to use the world’s oceans to meet national security requirements. They achieve this, among other things, by stabilizing the outer limit of the territorial sea at 12 nautical miles; by setting forth the navigation regime of innocent passage for all ships in the territorial sea; by protecting the right of passage for all ships and aircraft through, under, and over straits used for international navigation, as well as archipelagoes; by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond; and by providing for the laying and maintenance of submarine cables and pipelines. U.S. Armed Forces rely on these navigation and overflight rights daily, and their protection is of paramount importance to U.S. national security.
[ Page 81-82 ]
When all is said and done, the United States is the world's leading maritime nation and is tied to the use of the seas for political, economic, and military purposes. It has the most to gain from stability in laws governing the use of the seas, and stability over the long term can best be ensured by a widely ratified Law of the Sea Convention. Accession to the Convention by the United States will not be a panacea. Its rules are not perfect. But widespread ratification is likely to increase order and predictability, enhance adaptation to new circumstances, narrow the scope of disputes to more manageable proportions and provide means to resolve them, and greatly simplify the United States security paradigm. For the operational commander, ultimately charged with the responsibility for the men and women who may be taken in harm's way, the Law of the Sea Convention represents an essential first step in defusing contentious maritime issues.
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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.
[ Page 27 ]
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
[ Page 175-176 ]
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.