The Law of the Sea Convention: A National Security Success -- Global Strategic Mobility through the Rule of Law
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There are more than one hundred illegal, excessive coastal state claims worldwide that purport to impair vital navigation and over- flight rights and freedoms.122 Rejecting the Convention because it is violated by some states and applied imperfectly by others falls into the familiar trap made by the novice of international law— which is to reject international law because all nations do not adhere to all of its standards all of the time. Moreover, rejecting the Convention forgoes the opportunity to use international treaty law as a mechanism to influence change in the domestic laws—and the behavior—of noncompliant states. On the other hand, there is pressure to reshape interpretations of the Convention from the European Commission, vocal NGOs and some member states in ways that undermine freedom of the seas, undercutting national economic and security interests. The contest of ideas to shape future interpretations of the Convention is not unlike international political competition.
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Hans Morgenthau, an astute observer of international politics and founder of the modern school of political realism, dedicated his life to the study of the “struggle for power.” “All history shows,” he wrote in his classic treatise, “that nations active in international politics are continuously preparing for, actively involved in, or recovering from organized violence in the form of war.”123 The Convention serves as a powerful tool to shift maritime political dis- putes from being a cause for violence and naval warfare to a legal based order, approaching the vision of Myres S. McDougal and William T. Burke of a “public order of the oceans.”124 As the negotiations for the Convention were drawing to a close, Ambassador John Norton Moore understood that the United States was reaching its objective of replacing the “struggle for power” at sea with the “struggle for law” in the world’s oceans, reducing, and perhaps one day eliminating, an entire class of maritime conflicts as a cause of war.125 Toward that end, the Convention successfully has influenced numerous countries to conform their conduct and maritime claims to the Convention, typically in a manner that inures great benefit to global stability and security. These positive adjustments and reductions in excessive maritime claims constitute the “dogs that didn’t bark” in law of the sea. Over time, the individual and cumulative effect on U.S. national security and global interests has been positive.
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At a recent meeting of the Non-Aligned States in Cuba, for example, member states reaffirmed their support for applying the principles set forth in the Convention to the maritime territorial disputes in the East China Seas. In a more specific example, in December 2003, Syria adopted a new maritime law that rescinded its previous 35-nautical mile (nm) territorial sea, establishing a 12- nm territorial sea in conformity with the Convention.126 At the same time, Syria rolled back a 41-nm contiguous zone claim to a 24-nm contiguous zone127 and adopted a 200-nm EEZ,128 with these changes placing Syria in compliance with Convention in most respects. These provisions mark an improvement over previous Syrian government positions in relation to maritime claims, although Syria still has some work to do to modify other excessive coastal state claims and enter into complete compliance with international law.
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Other states have also recognized the Convention’s positive legal force—most recently Japan, India, and Mexico at the UN General Assembly’s Sixth Committee (Legal).135 Those nations credited the Convention with operating as a fundamental document for advancing the “rule of law” throughout the world. Most coastal states, in fact, have adjusted their maritime claims to be in conformity with the Convention. For example, 144 States claim a terri- torial sea of 12 nm or less, in accordance with Article 3 of the Convention.136 Throughout the globe, many countries have areas within their law or state practice that are noncompliant, but “state practice complies largely” with the Law of the Sea as reflected in the Convention.137 Even in these instances, however, diplomacy operates within the context of the rules reflected in the Convention.
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One effective component of the struggle for law at sea and the preservation of freedom of the seas is the U.S. Freedom of Navigation (FON) program. The FON program began, more than twenty-five years ago to tangibly exhibit the U.S. determination not to acquiesce to coastal states’ excessive maritime claims. When the program began in 1979, U.S. military ships and aircraft were exercising their rights against excessive claims of about thirty-five countries at the rate of about thirty to forty challenges annually.140 As late as 1998, the United States was conducting more than twenty- five operational assertions each year.141 But by 1999 the decline in operational challenges led the Department of the Navy and the Department of Commerce (within which the National Oceanic and Atmospheric Administration resides) to recommend an expansion of the program to “exercise openly the traditional freedoms of navigation and overflight in areas of unacceptable claims.” In 2000, the United States conducted challenges against just fifteen states.143 The cumulative report for the years 2000 to 2003 and the 2004 report show further decline.144 By 2005, the Department of Defense reported conducting operational challenges against only six nations: Cambodia, Ecuador, Philippines, Indone- sia, Iran, and Oman. That level of operational assertions remained steady in 2006, with challenges reported against the excessive maritime claims of the Philippines, Indonesia, Iran, Oman, and Taiwan.146 The steady decline in freedom of navigation challenges over the last ten years is attributable to two factors: (1) a reduction in the number of excessive claims due to the constructive influence of the Convention and (2) Department of Defense resource constraints imposed by a declining naval force structure coupled with competing tasking in support of the War on Terror.
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If appropriately resourced by the combatant commanders, the Freedom of Navigation program is effective, but it is not a panacea. The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational FON program may present diplomatic costs and pose risks inherent in physical challenges,148 as was displayed by the Black Sea bumping incident in February 1988. In 1996, the National Intelligence Council concluded that in some cases the costs, disadvantages, or risks of physically challenging excessive claims might be greater than the benefits.149 Of course, coastal states understand this calculus and will try to manipulate it to their advantage since they have an incentive to compel the inter- national community to acquiesce in their excessive maritime claims.