The United States and the Law of the Sea: Changing Interests and New Imperatives
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Leadership in Environmental Concerns. A fourth reason for the change in the American attitude toward the Convention was a new global attitude toward management of the environment. Part XII of the Convention deals extensively with the protection and preservation of the marine environment, covering a wide array of issues, from general principles to global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liability.31 The inclusion of strong environmental protection measures in the Convention was an earlier and enduring goal of the United States. In the decade following its completion, the U.S., along with many other nations, became even more interested in preserving the environment, to the point that such concerns in many cases supplanted economic considerations.32 Given that Part XII creates an effective, if diffuse, international mechanism for controlling marine pollution and establishes a symbiotic relationship between the Convention and other issue-specific agreements, the Clinton administration decided that agreeing to the Convention would ensure a stable regime for environmental protection.33
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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.”
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“Egregious Excessive Claims.” A ninth reason that led the United States toward accession to the Convention was the growing political and military cost of the Freedom of Navigation (FON) Program. This effort, initiated by the Carter administration in 1979 and continued under presidents Reagan, Bush, and Clinton, combined diplomatic and operational (not solely naval) means to discourage claims violating the navigational freedoms asserted by the 1982 Convention—freedoms that the US. supported even though, for other reasons, it had not signed the treaty.49 The FON program involved (and at this writing still does) naval exercises and consultations, bilateral and multilateral, with other governments to promote maritime stability, conformance with international law, and adherence by all nations to the customary rules and international law reflected in the Convention.
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This is just a sampling of excessive maritime claims and their sequels, but it represents the financial and diplomatic costs, as well of the risks, associated with the FON program. The case became compelling that such costs and risks would be substantially less under a specific, binding treaty.55 Two noted experts on the law of the sea, 1. Ashley Roach and Robert W. Smith, presented the position of the State Department in 1994: “Unilateral U.S. demonstrations of resolve—especially operational assertions—are sometimes viewed as antagonistic. They risk the possibility of military confrontation and of political costs that may be deemed unacceptable, with prejudice to other US. interests, including worldwide leadership in ocean affairs and support for use of cooperative, international solutions to mutual problems?“
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The “Preeminent Global Power.” The tenth, and final, factor bearing upon the Clinton administration’s decision to sign the Agreement and recommend accession to the Convention was its desire for the nation to retain leadership in maritime affairs generally. Rear Admiral Sehachte went so far as to say that “as the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role in achieving a widely accepted international order to regulate and safeguard the many and diverse activities and interests regarding the world’s oceans."60
The Clinton administration realized that US. refusal to accede to a Convention widely regarded as one of the most important international agreements ever negotiated would raise fundamen tal questions regarding not only the future legal regime applicable to the world's oceans but also the overall role of the United States. By actively promoting “leadership for peace” in the politically and economically important matter of rationalizing maritime laws and regulations, the United States hoped to be able to ensure itself a major role in shaping a posthegemonic global order.61 Conversely, the White House recognized that if the United States remained outside the Convention, it would not be in a position to influence the treaty’s further development and interpretation, transition, and refinement.62 More broadly, continued mute opposition seemed likely not only to jeopardize important national interests in the law of the sea but also to be seen as an implicit rejection ofthe very goal ofworld order through international law. In even less charitable eyes, it might be construed as a belief that unilateralism is a viable policy when backed by military force.63 It appeared that full participation in the Convention offered an opportunity to exercise world leadership in a context far broader than had been possible during the Cold War.
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In fact, many of the nations making claims that the U.S. considered excessive were asserting that the Convention was a legal contract, the rights and benefits of which were not necessarily available to non-parties—such as the United States. The Continual counter-assertion that these rights and benefits were already embodied in customary international law was appearing more and more difficult to sustain. In testimony before the Senate Foreign Relations Committee in the summer of 1994, the chairman of the Department of Defense Task Force on the Law of the Sea Convention, John McNeill, pointed to the likelihood of “increasingly egregious excessive claims” by many coastal states as a critically important reason to seek U.S. accession to the Convention.57 The danger of continuing to rely on the FON program was summed up by Rear Admiral William Schachte: “The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order.”58 Conversely, accession to the Convention, by the United States would, it was hoped, convince states making excessive claims to retract them and, perhaps more importantly, keep in check their natural desire to extend sovereignty to offshore areas, when it would be inimical to navigation and overflight rights.”