The United States and the Law of the Sea: A Window of Opportunity for Maritime Leadership
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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.
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A third reason arguing for United States accession to the convention is the changing situation in the deep seabed mining industry. In the early 1980s many were predicting a major boom in the mining of deep seabed nodules of cobalt, manganese, nickel, copper, and other minerals. New research indicates that these predictions were early by decades.11 The likelihood of economically feasible deep seabed mining of nodules occurring soon appears increasingly remote, due primarily to the discovery of substitutes for many prod- ucts and applications and the availability of land-based supplies.12 Should seabed mining of nodules ever become of genuine strategic importance to the United States, plentiful quantities are expected to be available within national 200-mile exclusive economic zones as an alternative supply when market prices improve.13
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A fourth reason arguing for United States accession to the convention is the building global consensus on management of the environment. Part XII of the convention deals extensively with the protection and preservation of the marine environment. Part XII covers a wide array of issues running from general principles, to global and regional cooperation, to technical assistance, to monitoring and environmental assessment, to responsibility and liability." The inclusion of strong environmental protection measures in the convention was an early and enduring goal of the United States. Given the fact that the language of Part XII creates a diffuse but effective international mechanism for control of a significant amount of marine pollution, it would seem especially advantageous for the United States to agree to the convention in order to ensure the maintenance of a stable regime for environmental protection.19
Rear Admiral William Schachte, former judge advocate general of the Navy and active participant with the U.S. delegation to the Third U.N. Conference on the Law of the Sea (UNCLOS III), has pointed out that the convention provides a unique, outstand- ing framework for addressing and resolving environmental concerns. He notes that the convention is far superior to any of the numerous conventions and protocols addressing marine pollution that have been attempted over the past 4 decades and that it strikes a delicate balance on environmental issues.20
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When all is said and done, the United States is a maritime nation tied to the oceans and the intelligent use of the seas for political, economic, and military purposes. More so than any other nation, the United States will benefit from stability in laws governing the use of the seas, and this stability over the long term can best be protected 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. Widespread ratification, however, is likely to increase order and predictability, facilitate measured adaptation to new circumstances, encourage accommodation of interests, narrow the scope of disputes to more manageable proportions, and provide means to resolve them.41 Clearly, the United States holds the key to this widespread ratification.
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A final reason arguing for U.S. accession to the convention is the position of the United States as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world's leading oceanic state. 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 respect to the promotion of international law and order.37 The regime of the Law of the Sea Convention presents a superb opportunity for the United States to provide world leadership in an area of increasing importance to the community of nations.38
By actively promoting "leadership for peace" in the politically and economically important area of an orderly codification of maritime laws and regulations, the United States could assure itself a major role in shaping a post-hegemonic global order.39 Conversely, U.S. opposition to the convention would not only jeopardize significant national interests in the law of the sea without substantially offsetting benefits, but also could constitute an implicit rejection of the promotion of world order through international law as a foreign policy goal. Viewed less charitably, failure of the United States to fully support the convention could reflect a belief that unilateralism is a viable policy alternative when backed by military force.40 Conversely, full participation in the Law of the Sea Convention ultimately provides the United States with an opportunity to exercise world leadership within the context of far broader international activity and participation than was possible during the cold war.
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These excessive claims are cause for particular concern because they cover the full spectrum of maritime possibilities and because they are being made by the full spectrum of the community of nations. For example:
- Argentina, Italy, Panama, and Russia have historic bay claims that do not comply with international norms.
- Canada, China, Costa Rica, North Korea, Portugal, Vietnam, and others have sig- nificant excessive baseline claims.
- Cape Verde, Indonesia, and the Philippines have sought to impose restrictions on archipelagic sea lanes passage not contemplated by the 1982 Convention.
- China, Djibouti, Egypt, Indonesia, North Korea, Pakistan, and the Philippines have articulated various nonconforming restrictions on innocent passage.
- Argentina, Canada, Italy, Spain, and others have sought to impose restrictions on straits used for international navigation.
- Brazil, Ecuador, and Peru have restrictions on aircraft overflight in their exclusive economic zones inconsistent with the convention.
- Cape Verde, Finland, Iran, Sweden, and others have declared warships to be sub- ject to special coastal state regulation.34
This is just a sampling of excessive maritime claims, but the diversity of types of claims and the character and numbers of nations involved suggest that continuous U.S. challenges to these will require substantial effort. The financial and diplomatic costs, as well as the overall risks associated with the use of such forces, are likely to be substan- tially higher in the absence of a specific, binding treaty, and the long-term effectiveness of challenge programs remains doubtful in the view of some commentators.35 Many of the nations making claims that the United States considers excessive assert that the convention is a legal contract, the rights and benefits of which are not necessarily available to non-parties. The continual counter-assertion by the United States that these rights and benefits are embodied in customary international law may be difficult to sustain. The situation may well have been summed up best by Rear Admiral Schachte: "The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order."36