How the Law of the Sea Convention Benefits the United States
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The role of the Law of the Sea Tribunal is to resolve disputes over the Convention. The Convention mandates that the Tribunal resolve all disputes, except those involving military activities. Opponents of the Convention argue that the tribunal could dispute U.S. designations of certain activities as military, forcing the U.S. to limit military operations. Some even claim American “citizens could be dragged before politically motivated foreign jurists.”18
Professor John Norton Moore, the leading U.S. expert on the law of the sea, told the Senate Foreign Relations Committee that the chances of the Tribunal undermining U.S. military operations was comparable to that of a meteorite striking the capitol building.19 Still, administration officials have taken precautions. Upon joining the Convention, the United States would submit a declaration stipulating that it is acceding on the condition that states themselves have the authority to decide whether activities are military.20 Opponents think that even this precaution leaves a chance of the Tribunal harassing the U.S. military.
As a party to the Convention, however, the United States can nominate the judges to sit on the tribunal, rendering this wildly remote possibility even more unlikely. If the United States does not ratify the Convention, it has no control over the decisions the Tribunal reaches. The Tribunal will never have power over the U.S. military, but its decisions will form precedents that will help resolve future maritime disputes. Those precedents would affect U.S. interests.
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Moreover, current U.S. nonproliferation policy relies on the Convention. The Proliferation Security Initiative, an effort among more than 20 states, led by the United States, to share intelligence and stop weapons shipments, must conform to the Law of the Sea Convention. The other states in the PSI are party to the Convention.13 In their Statement of Interdiction Principles, the PSI parties agree to adhere to international law.14 In effect, this agreement means that when the United States works with allies as part of the PSI, it agrees to observe the rights of innocent passage and freedom of the seas. This agreement costs America nothing, because it already recognizes those rights.
The United States could, of course, forcibly violate established rights of free passage in order to interdict weapons shipments. But this policy would be disastrous for two reasons. First, it would undermine the right of free passage, which is essential to U.S. trade and force projection. Second, it would destroy the Proliferation Security Initiative. The PSI cannot work without the cooperation of our allies, and their cooperation depends on the Initiative’s adherence to the Law of the Sea.
Instead of fighting proliferation outside of international law, America can use international law to fight proliferation. One way to allow interdiction of weapons shipments is to alter the Convention to make proliferation grounds for interdiction on the high seas or in coastal waters. It would take a long negotiating effort, but the United States might succeed. By staying outside the Convention, the United States forgoes this opportunity but remains bound by the legal restrictions on interdiction.
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The most absurd argument made against the Convention is the notion that it would hinder U.S. efforts to interdict shipments of materials used for nuclear, chemical and biological weapons and the missiles used to deliver them. The opposite is true. Signing the Convention helps stop proliferation.
Opponents contend that because the Convention protects freedom of the seas and freedom of already passage in territorial waters, signing would prohibit the U.S. Navy from stopping suspect shipments.12￼ This argument is based on a misunderstanding of both international law and America’s current nonproliferation efforts. The Convention offers states limited reasons for violating a ship’s freedom of the seas or right of innocent passage, and these reasons do not include carrying weapons. But these constraints on U.S. conduct already exist. Freedom of the seas and the right of innocent passage are codified in the treaties the United States passed in 1958 and subsequently recognized as customary international law. If the United States ever had a right to stop shipments without regard for freedom or the seas and the right of innocent passage, that right is long gone. The Convention imposes no new restrictions on the United States’ ability to interdict weapons shipments.
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Each year the United States challenges dozens of states for asserting legal rights that impede freedom of the seas. Iran, North Korea, and China have all challenged the U.S. navy’s free passage through their EEZ. By codifying the right to pass freely through the exclusive economic zone of foreign states without restrictions on cargo or formation, the Law of the Sea strengthens America’s ability to project power.
But these rights are already recognized as customary international law. What does the Convention add? For one, it makes these rights stronger. Written treaties are perceived as more powerful than customary laws. By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.
More importantly, the Convention creates a forum to change navigational rights. It is possible, though unlikely, that future deliberations under the Convention might create rules that undermine freedom of navigation. If the United States fails to ratify the Convention, it will lose the opportunity to defend these rights. The problem is not that other states can stop the U.S. Navy from sailing where they want to sail. The problem is that they can raise the costs of doing so. If a nation decides to forbid U.S. ships their legal right to pass, America could use force to assert our right. But, realistically, it will be more likely to seek legal remedy. Signing the Convention lowers the cost of projecting power.