An operational perspective on the law of the sea
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The first argument for United States accession to the Convention is the changing patterns of global trade, which place an increasing premium on freedom of the seas and maritime flexibility and mobility. Seaborne commerce today exceeds 3.5 billion tons annually and accounts for over 80% of the trade among nations. The United States, in particular, is increasingly dependent on unrestricted access to overseas resources and8 markets. Over 95% of U.S. import and export trade is transported by sea. Almost 50% of U.S. petroleum products is imported, and an increasing percentage of our gross9 national product, now in excess of 20%, is traded overseas. Recent agreements under the auspices of the General Agreement on Tariffs and Trade, as well as NAFTA, might well intensify this commerce. As the world's leading maritime power and de facto leader of the global maritime coalition, the United States must advocate strongly for the ability of ships and aircraft of all nations to move freely on, over, and under the sea anywhere on earth, not at the sufferance of coastal and straits states but as an internationally recognized legal right. The Convention guarantees this mobility and flexibility, and makes it less likely that naval forces will have to protect our economic use of the oceans militarily, by reaffirming and codifying traditional freedoms of navigation and over-flight.
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Closely connected with this first factor is the use of naval forces to protect our core interests. Achieving a stable and predictable regime for the world's oceans, with each nation respecting universally agreed rules and procedures, is vital for the effective use of expeditionary forces as instruments of national policy. Without international respect for the freedoms of navigation and overflight set forth in the Convention, the mobility of our military forces could be jeopardized. The response time for U.S. and allied or coalition forces based away from potential areas of conflict could increase. Forces could arrive on the scene too late to make a difference, affecting our ability to influence the course of events consistent with our interests and treaty obligations. For example, if prevented from transiting through the Indonesian Archipelago and Malaccan Straits, a carrier battle group transiting from Yokosuka, Japan, to Bahrain would have to reroute around Australia. Assuming a steady 15-knot pace, a 6-ship, conventionally powered battle group would require an additional 15 days and over 94,000 gallons of fuel to transit the additional 5800 nautical miles. The additional fuel cost alone would amount to $3 million."
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A fourth reason arguing for the importance of the Convention to our national security equation is the growing political and military costs of the U.S. Freedom of Navigation Program in the face of new excessive maritime claims by an increasing number of states. This program, initiated in 1979 by the Carter Administration, and continued by the Reagan, Bush, and Clinton Administrations, combines diplomatic action and operational assertion of our navigational rights to discourage state claims inconsistent with13 international law as reflected in the Convention. On the diplomatic front, the U.S. State Department protests maritime claims that are inconsistent with international law. Since the inception of this program, well over 100 such protests have been filed by the United14 States. Over the same time period, U.S. military ships and aircraft have exercised navigational rights and freedoms in all oceans against excessive claims of more than 5015 countries with numerous operational assertions every year. Clearly, the scope of this program alone makes it highly desirable for the United States to decrease the number of contentious ocean issues. Moreover, the political costs and military risks of such unilat- eral actions have been high in the past and can only increase in a changing world order.
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A fifth reason arguing for United States accession to the Convention is our position as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world's leading maritime power. Clearly, U.S. refusal to ultimately accede to a Convention widely regarded as one of the most important agreements ever negotiated would raise fundamental questions regarding not only the future legal regime applicable to the world's oceans, but also the leadership of the United States with re- spect to the promotion of international law and order. The regime of the Law of the Sea Convention presents a superb opportunity for the Untied States to provide world leader- ship in an area of increasing importance to the community of nations. Most importantly, by remaining outside the Convention, the United States would not be in a position to influence the Convention's further development and interpretation as it goes through a critical period of transition and refinement.
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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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There is significant danger in relying so heavily on customary international law to support U.S. desires, and especially to guarantee the movement of our naval expeditionary forces. Customary law is inherently "fuzzy around the edges" and vague on details. This customary law is constantly evolving through a process of claim and counter claim,55 representing an inherently unstable landscape. Some states, especially newly indepen- dent states, do not recognize customary law. They view it as a body of law, frequently formed without their participation or consent, that promotes the interests of developed nations—often former colonial powers—without considering and reflecting those of the developing world56. Finally, customary law is especially difficult to enforce and maintain, requiring, for example, the comprehensive U.S. Freedom of Navigation Program to maintain57 the United States' desired level of freedom of navigation and overflight.
Legal scholars have noted that governments are more inclined to respect obligations to which formal consent has been given by the highest political authorities and that even if the Convention is declaratory of customary international law, this leaves much room for argument about important details. They further argue that without widespread ratification of the Convention, inevitable "violations" are more easily interpreted as evi- dence that state practice, the ultimate source of customary law, is not necessarily rooted 58 in the Convention.
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Those who point to the freedom with which the U.S. Navy, in particular, has roamed the seas, and to the success of the Freedom of Navigation Program, miss many of the nuances of the way in which the Navy uses the seas. The United States takes extraordi- nary measures to ply the oceans responsibly. There have only been a small number of incidents of violence involving U.S. forces because we are very selective about when and where we choose to challenge excessive maritime claims.59 Naval commanders are ￼￼￼￼￼￼￼￼￼￼￼￼￼￼given extensive guidance, primarily in The Commander's Handbook on the Law of ￼Naval Operations60, regarding their rights and duties, and they are enjoined to respect the rights of coastal states to ocean areas under their purview. Additionally, they are charged specifically to provide advance notice and reporting if they are entering into ￼￼￼￼ areas in which an international incident is likely.61 Where a Freedom of Navigation challenge of an illegal maritime claim is deemed appropriate, this challenge is not del- egated to the local commander, but must be thoroughly reviewed by higher authority before any Freedom of Navigation operation can take place.62 These factors have the practical effect of placing real-world limitations on U.S. operations—limits that would not exist if illegal claims were rolled back to conform with the Law of the Sea Convention.63
Regardless of the outcome of contention on, over, or under the oceans, as the world's most influential maritime power and leader of the de facto maritime coalition, oceanic conflict is ultimately unhelpful to the United States. The deaths of Libyan pilots as the result of United States protest of excessive maritime claims should be as upsetting to the United States as the death of an American airman in 1992 when the aircraft he was flying in was shot at by a Peruvian fighter aircraft 175 miles from the coast of Peru.64 Both incidents reflect a breakdown of the rule of law for the oceans and are ultimately bad for the United States.
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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.