A Window of Opportunity: The U.N. Convention on the Law of the Sea.
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The time has now come for the United States to become party to this vital convention and regain its leadership position in ocean policy affairs. One benefit: Becoming a party to UNCLOS would greatly enhance homeland security. In his , former Commission on Ocean Policy, called the convention “the foundation of public order of the oceans.” "" U.S. military forces, including Coast Guard units, rely heavily on the many critical freedoms of navigation, over- flight, and operational principles codified in the convention. Under the current legal regime, the United States is not guaranteed such rights. While there is a strong argument that transit passage and archipelagic sea lanes passage have become established rights under customary international law, not all agree.
For example, the Islamic Republic of Iran, whose terri- torial waters overlap the shipping lanes in the critical Strait of Hormuz (through which much of the world’s oil passes) contends that only states that are party to UNCLOS are entitled to the full rights of transit passage.8 Moreover, neither of these critical navigational rights exists under any of the 1958 Geneva Conventions on the Law of the Sea, to which the United States continues to be bound. Becoming a party to the 1982 convention will supersede our obligations under the 1958 conventions and will ensure the entire range and ex- tent of our critical mobility rights in all the ocean waters of the world.
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UNCLOS also guarantees the right to operate and conduct exercises in international waters beyond the territorial sea. Prior to the convention, many coastal states were insisting on the right to exercise complete sovereignty out to as far as 200 miles or more from their land territory. While the convention’s provisions establish the right of coastal states to claim a 200-nm exclusive economic zone (EEZ), they may only exercise sovereign rights over economic activities, such as fishing, the exploration for and production of oil and gas from under the seabed, and the construction of artificial islands. Under the convention, coastal states may not restrict freedom of navigation within the EEZ, including military training exercises, law enforcement activities, and overflight.
These provisions are of great benefit to our national security and global mobility interests. In addition to the global reach of the U.S. Navy and Air Force, Coast Guard units patrol the Persian Gulf, the Caribbean Sea, the eastern Pacific Ocean, and other vital maritime areas. There is a disturbing movement among some coastal states to attempt to transform their EEZs into the equivalent of a territorial sea, in which they may limit critical navigational freedoms. For example, the U.S. Navy is concerned about apparent government attempts in China and Iran to assert excessive control over foreign operations within the exclusive economic zone. The United States must not sit on the sidelines while the international community is working out the nuances of how UNCLOS is to be interpreted and applied.
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The United States could use the provisions of UNCLOS effectively to combat excessive maritime claims, which can interfere with narcotics interdiction and other law enforcement efforts. Several critical coastal states continue to claim territorial seas of 200 nautical miles, in violation of the convention’s 12-nm limit. These countries see our law enforcement operations in their claimed territorial seas as violations of their sovereignty and are either reluctant or refuse to cooperate with proposed actions against vessels engaged in drug-smuggling that are interdicted in these disputed areas.
Since we are not yet party to UNCLOS, it is very difficult for us to credibly argue that they must give up these excessive claims. The result is that counter-drug bilateral agreements with these nations are difficult, interdiction efforts in their claimed territorial seas are hampered, and our negotiating ability to change the situation is compromised.
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The convention promotes the freedom of navigation and overflight by which international shipping and transportation fuel and supply the global economy. Some 90 percent of global trade tonnage, totaling over $6 trillion in value, including oil, iron ore, coal, grain, and other commodities, building materials, and manufactured goods, travels on and over the world’s oceans and seas each year.12 By guaranteeing merchant vessels and aircraft the right to navigate on, over, and through international straights, archipelagic waters, and coastal zones, the provisions of UNCLOS promote dynamic international trade.
At the same time, UNCLOS encourages international cooperation to enhance the safety and security of all ocean-going ships. Whether it involves lumber and winter wheat shipped from the Pacific Northwest to Japan; high-quality, low-cost goods from Singapore to Long Beach; or oil from the Persian Gulf to Europe; free, safe, and secure commercial navigation and flights provide great economic and security benefits to all of us. That is the key reason the U.S. Chamber of Commerce, shipping industry, aviation industry, and other international trade groups have called for immediate accession to the convention.
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The specific argument that the convention would pre- vent the U.S. from using its submarines to collect intelligence is fallacious. Several sources, including the minority views in the Senate Committee on Foreign Relations, note that Article 20 of the convention requires submarines and other underwater vehicles to navigate on the surface and show their flags when engaged in innocent passage. This is correct, so far as it goes. But the minority report then concludes that this would not especially during the Cold War—in gathering intelligence close to foreign shorelines.
What the minority report and other critics fail to men- tion is that the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States has long been party, contains exactly the same restriction.15 Moreover, the collection of intelligence in any guise within the territorial sea does not fall within the ambit of innocent passage. The United States would never accept foreign submarines or foreign warships engaging in intelligence-gathering operations in the ter- ritorial sea off of San Diego or Norfolk. Indeed, when President Reagan signed a proclamation extending the U.S. territorial sea to 12 nautical miles on December 27, 1988, consistent with the convention, one of the first things that the Coast Guard did was to advise a Soviet military vessel gathering intelligence just a few miles off of Pearl Harbor to leave the area immediately.16
The U.S. military and intelligence communities are well aware that the convention would have a positive impact on our national security. Moreover, as Senator Richard Lugar, at the time of this writing, ranking minority member of the Foreign Relations Committee, has argued, it would be unprecedented for the Senate to deny to our nation’s military and national security leadership a tool that they have unanimously claimed that they need, especially during a time of war.17