National Security and the U.N. Convention on the Law of the Sea: U.S. Coast Guard Perspectives
[ Page 577 ]
The navigation principles contained in UNCLOS would allow United States and allied forces to use the world's oceans to meet challenging national security requirements, including those necessary to fight the Global War on Terrorism and to project military power overseas. Stephen J. Hadley, President Bush's National Security Advisor, wrote the Senate in February 2007 to request that it take positive action on UNCLOS as soon as possible, arguing, among other things, that "the Convention protects navigational rights critical to military operations and essential to the formulation and implementation of the President's National Security Strategy, as well as the National Strategy for Maritime Security."'17 The Convention provides the most effective means to exercise U.S. leadership in the management and development of the law of the sea. UNCLOS facilitates combined operations with our coalition partners-all the rest of whom are parties to the Convention-through a commitment to a common set of rules, such as those governing the Proliferation Security Initiative (PSI)."
[ Page 578 ]
A second critical right that UNCLOS guarantees is the ability 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 nautical mile (nm) exclusive economic zone, 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, including military training exercises, law- enforcement activities, and overflight within the EEZ.
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, 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. The U.S. Navy is concerned about apparent government attempts in China and Iran, for example, to assert excessive control over foreign operations within the EEZ as an "anti-access or sea denial strategy."'" In March 2009, five Chinese vessels "aggressively" shadowed and harassed the USNS Impeccable as it conducted operations in international waters seventy-five nm south of Hainan Island in the South China Sea.22 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.
[ Page 579-580 ]
In the mid-1980s the Soviets had drawn a system of straight baselines in the Arctic Ocean. Segment 8-9 is a twenty-six mile line that enclosed Motovsky and Kola Bays. According to the military experts writing in press and magazine accounts, on February 11, 1992, USS Baton Rouge was lurking in what it thought to be international waters when it and a Sierra-class Russian submarine collided.25 In the ensuing diplomatic dispute, the U.S. Navy claimed that the collision occurred more than twelve miles from the "normal baseline," the shoreline, which placed it well within international waters. However, Russia claimed that the U.S. submarine was operating illegally while submerged within its territorial sea as measured from their claimed straight baseline.
Years later, when another Russian submarine, Kursk, sank under mysterious circumstances in the same general area, the Russian Navy immediately claimed that it was the fault of the United States, which had intelligence gathering submarines in the area monitoring the Russian exercises.26 If the United States and Russia were both Party to the Convention, we would likely be able to resolve the legality of this particular baseline segment and avoid such potential incendiary incidents. We continue to have similar disputes concerning excessive straight baseline claims with many other countries all over the world, including China, Iran, Colombia, and Vietnam.
[ Page 582 ]
Recent discoveries by the U.S. Coast Guard (USCG) icebreaker Healy reveal that the U.S. continental shelf in the Arctic Ocean is much more extensive than originally thought. Only by becoming party to UNCLOS and participating in its processes, however, can the United States obtain secure title to these vast resources, adding some 290,000 square miles for sovereign resource exploitation.29 Moreover, no American business enterprise is likely to invest the many billions of dollars necessary to develop a distant, deep-water off-shore oil or gas field, no matter how rich it might be, unless it has an undisputed right to do so under both domestic and international law. In addition, the Convention's deep seabed mining provisions, as amended in 1994, would permit and encourage American businesses to pursue free-market- oriented approaches to deep ocean mining. The 1994 "Part XI Implementing Agreement" was crafted in such a way so as to protect the interests of investors and the United States. "31 As a result, the off-shore oil and gas and mining industries all strongly support accession to UNCLOS. Economic self- sufficiency and development of off-shore ocean resources contribute directly to our national security.
[ Page 582-583 ]
Other Coast Guard missions that the Convention would promote include port and maritime security, law-enforcement, and environmental protection. While guaranteeing rights of innocent passage and the right to seek safe haven in the event of life-threatening storms and other conditions (which the law refers to asforce majeure),UNCLOS reemphasizes the jurisdictional rights of coastal states within their inland waters, such as harbors and rivers, and within the twelve nm territorial sea. As a result, the Convention would enhance the Coast Guard's ability to protect our nation's coastal security interests. 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 twelve 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 interdicted in these disputed areas. Since we are not now party to UNCLOS, it is very difficult for us to argue credibly 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. The Convention also promotes our authority to protect our ocean waters, seashores, and ports from a wide variety of environmental threats. Admiral Thad Allen, the Commandant of the Coast Guard, and the four previous Commandants have strongly advocated becoming party to UNCLOS as soon as possible, largely because it would promote the ability of the Coast Guard to accomplish its homeland security and law-enforcement missions.2
[ Page 583-584 ]
Another key purpose of the Coast Guard is to promote safe and secure international trade. The Convention promotes the freedom of navigation and overflight by which international shipping and transportation help supercharge the global economy. Some ninety percent of global trade tonnage, totaling over six trillion in value, including oil, iron ore, coal, grain, and other commodities, building materials, and manufacturer goods, travels on and over the world's oceans and seas each year.33 By guaranteeing merchant vessels and aircraft their right to navigate on, over, and through international straights, archipelagic waters, and coastal zones, the provisions of UNCLOS promote dynamic international trade. It reduces costs and eliminates delays that would occur if coastal states were able to impose the restrictions on such navigational rights that existed prior to the Convention.
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 ofus. 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.
[ Page 586-587 ]
The specific argument that the Convention would prevent the United States 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 flag when engaged in innocent passage. This is correct, so far as it goes. But the minority report then concludes that this would "fail to protect the significant role submarines have played, especially during the Cold War, in gathering intelligence very close to foreign shorelines."
What the minority report fails to mention 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.39 Moreover, the collection of intelligence in any guise within the territorial sea is not "innocent passage."40 Such operations are called espionage, not innocent passage. The United States would never accept foreign submarines or foreign warships engaging in intelligence-gathering operations in the territorial sea off of San Diego or Norfolk. Indeed, when President Reagan signed a proclamation extending the U.S. territorial sea to twelve nm 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.42 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, 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.43
[ Page 584 ]
UNCLOS would also greatly enhance the global leadership position ofthe United States in maritime affairs, an area in which the Coast Guard has long played a vital role. Many states have excessive claims with respect to baselines, historic bays, territorial seas, straits, and navigational restrictions which, in the opinion of many, are not permissible under the Convention. As a non-party, our ability to seek to roll back these excessive claims is severely inhibited. Failure to accede to UNCLOS will materially interfere with our ability to engage with other states to improve maritime governance, a maj or part of the Coast Guard's current strategy for maritime safety, security, and stewardship. Our non-party status is an obstacle that we must overcome in developing virtually any new multilateral maritime instrument. For example, several key states whom we want to join the Proliferation Security Initiative (PSI) often question our non-party status. Likewise, while the United States has long played a key role in the International Maritime Organization (IMO) to promote maritime safety and efficiency and to protect the marine environment, our leadership position is being undermined by our current outsider status. As a non-party, the United States has no "seat at the table" in virtually all matters concerning the Convention. The United States does not have a judge on the Law of the Sea Tribunal nor a decision-maker or staff experts on the Continental Shelf Committee. And despite the fact that the 1994 "Part XI Implementation Agreement" guarantees the United States a permanent seat on the International Seabed Authority (ISA) and a veto on all key decisions of that body, as a non-party, we cannot play that critical role. In article after article, UNCLOS reflects diplomatic victory after victory for the United States. However, as a non-party, we cannot take advantage of these benefits. One of the key reasons that the congressionally mandated U.S. Commission on Ocean Policy has consistently and unanimously called for the United States to accede to the Convention was to regain its ocean policy leadership position.