At What Cost? America's UNCLOS Allergy in the Time of "Lawfare"
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The term "lawfare"-referring to the strategic use of legal claims to accomplish or oppose a military objective-was coined in 2001 by Major General Charles J. Dunlap, Jr., former Deputy Judge Advocate General of the U.S. Air Force.48 While many legal claims pertaining to the lawfulness ofnaval operations are lodged both formally and informally by governmental actors-for example, through diplomatic channels or the media it is useful to note that "lawfare" practitioners increasingly include non-state actors. Variants of "lawfare" may involve uniformed military or insurgent fighters executing a strategy of claiming illegal treatment while detained in order to undermine the perceived moral legitimacy of a state adversary; a single state or group of states seeking an International Court of Justice ruling confirming illegal aggression on the part of an adversary state; individual or organizations of peace activists suing to enjoin governmental activities relating to nuclear weapons; or environmental activists suing to block use of military sonar. Despite the somewhat ominous overtones of the word "lawfare" and the contentiousness of the claims concerned, it should be noted that the assertion of valid legal claims-as distinct from a strategy of lodging specious claim-is, of course, a legitimate means of furthering individual, organizational, and governmental objectives. Indeed, U.S. Department of Defense (DoD) policy requires that all military operations, regardless of their nature, be conducted in accordance with applicable international law. 49 While it is self-evident that the legitimacy of legal claims labeled "lawfare" must be determined on a case by case basis, it is likewise clear that the "sting" of an allegation of illegality can immediately and often irreparably diminish the perceived legitimacy of national security related actions in the eyes of governmental officials as well as their constituents. Therefore, regardless of their ultimate resolution, the underlying claims can instantaneously result in varying degrees of national security "cost" to the extent they succeed in increasing skepticism of or opposition to the national security interests of the United States.
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As with most comprehensive legal framework documents, UNCLOS includes many broadly worded provisions susceptible to differing interpretations. Not surprisingly, while many of UNCLOS' provisions reflect customary international law, contributed to the rise of significant international political and military rifts. For example, as of 1997, over forty coastal nations-including strategically significant nations such as India and China-have claimed the right to restrict the "innocent passage" of foreign warships through their territorial waters on the basis of prior notice, consent, and/or means of propulsion." Similarly, a minority of coastal states again including China have claimed and/or sought to enforce restrictions or prohibitions on foreign military activities, such as the collection of military intelligence or the conduct of military exercises, within their exclusive economic zones (EEZs). states likewise consider such restrictions contrary to UNCLOS . However, an adequate remedy is not readily available, as judicial and tribunal decisions have yet to definitively resolve these divergent positions. Instead, the relevant currency in the ongoing "negotiation" over the contours of UNCLOS is comprised of relevant state practice, such as diplomatic statements, naval operational assertions, domestic implementing legislation, and authoritative policy documents; institutional policy consensus from, for example, the differing interpretations of key provisions have The United States and a majority of UNCLOS International Law of the Sea Tribunal (ITLOS), the UNCLOS and the UNCLOS Commission on the Limits of the Continental Shelf (CLCS); 56 and the writings of international legal scholars.
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Since development of customary international legal norms is disproportionately shaped by the positions and actions of the world's most politically, economically, and militarily influential nations, the traction of an emerging "securitization" norm could potentially increase as leading state proponents, such as China and India, continue to gain political, economic, and military stature. Similarly, while the actions of landlocked nations can play a role in the development of customary international law of the sea, the role of coastal nations is particularly influential in this regard. However, while crystallization ofa "securitization" norm into customary international law would clearly constitute ultimate success for a nation state "lawfare" practitioner, more realistic intermediate goals are achievable. For example, a coastal nation may successfully dissuade an expeditionary nation from challenging an excessive claim by exploiting the expeditionary nation's political vulnerability or desire to avoid military escalation. Additionally, a coastal nation may effectively undermine an adversary's legitimacy through consistently pressed, specious claims. In either case, an expeditionary nation such as the United States risks incurring additional diplomatic and political costs if it chooses to persist in contested operations. These costs can be conceptualized as "drag" on the U.S. government's ability to protect sea lines of communication, collect intelligence, conduct military hydrologic survey operations, and maintain the required force structure to accomplish these. Therefore, the opportunity costs associated with non-membership in UNCLOS can be meaningfully correlated to the vulnerabilities associated with maritime "lawfare"-operational latitude, legitimacy, and maximal effective ability to influence maritime law and policy.
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Having long recognized the efficacy of legal "securitization" claims as a mechanism through which to bolster regional sea control, China has apparently developed an effective strategy in furtherance of its objective." This strategy rests upon China's UNCLOS stance and includes declaratory statements incorporated into China's UNCLOS ratification depository instrument and includes domestic legislation formally claiming security interests in its territorial seas and EEZ, development of supporting legal scholarship, and a complementary strategic communications campaign.12 As China gradually works to set conditions conducive to marginalizing U.S. influence in the East, Southeast, and South Asia regions, its dramatic economic growth will likely further boost its ability to influence the behavior of smaller regional neighbors in a manner consistent with China's UNCLOS "securitization" narrative. The absence of a formal U.S. commitment to UNCLOS is yet an additional vulnerability China can exploit in inducing its neighbors' to acquiesce in its territorial seas and EEZ claims. Such acquiescence would strengthen China's ability to claim territorial sea sovereignty over vast swaths of the East and South China Seas, seriously hampering the United States' ability to project military power in the region.
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Further evidence of a multi-pronged strategy can be inferred from China's operational military efforts to reinforce its ultra vires UNCLOS positions. Specifically, China has, on occasion, engaged in illegal, unsafe airborne and seaborne tactical maneuvers in an attempt to dissuade the United States from conducting military operations-principally, military survey power in the region. it has occasionally demonstrated a willingness to employ military force in operations and intelligence collection-within the Chinese EEZ. Additionally, support of its contested claims to sovereignty over certain offshore islands. short, by pressing contested claims to maritime territorial sovereignty while simultaneously pursuing aggressive military tactics in support of ultra vires security rights in offshore waters, China has demonstrated an efficacious strategy to consolidate control over the vast majority of the South and East China Seas. Toward this end, China has the advantage of operating from interior lines-both geographically and rhetorically vis a vis the United States, due both to its status as an UNCLOS member nation and a state attempting to regulate the waters adjacent to its coast. Thus, to the extent the United States seeks to project a maritime military presence in a manner inconsistent with China's UNCLOS stance, China may gain some traction domestically, as well as internationally, by criticizing the United States as an imperialistic power seeking to threaten and provoke a distant, peace-loving nation in the waters adjacent to its coast. U.S. UNCLOS abstention will continue to facilitate China's ability to cast U.S. UNCLOS interpretation as self-serving and disingenuous by highlighting that the United States is seeking to extract the benefit of UNCLOS butt avoiding membership due to its distrust ofthe international community. It is not inconceivable that such a narrative would resonate with many coastal states, especially if the United States' relative regional and global primacy is seen to be diminishing. All else equal, nations with vulnerable coasts and small fleets might perceive an UNCLOS "securitization" norm as more attractive than the current, generally-accepted norm permitting robust military operations within EEZs and almost unrestricted innocent passage through territorial waters. Furthermore, as an UNCLOS member nation, China remains better positioned than the United States to influence UNCLOS interpretation from within UNCLOS regulatory institutions such as the ISA, ITLOS, and CLCS.
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Recent geopolitical developments in the Arctic region highlight yet another circumstance where both UNCLOS and U.S. national security interests are implicated, as thawing Arctic floes have brought the Arctic Ocean's untapped resource and navigation potential increasingly to the fore. States with Arctic Ocean borders-United States, Canada, Russia, Finland, Iceland, Norway, and Sweden-are, therefore, concerned with the full spectrum of national security implications-political, economic, and military-associated with increased Arctic Ocean maritime transit and resource related activity. Conflicting claims to the Arctic Ocean's waters and seabed have already commenced. A prime example is Russia's 2007 claim to the Lomonosov Ridge a 1,200 mile long undersea swath in the vicinity of the North Pole as part of its continental shelf.68 While the Lomonosov Ridge is currently considered beyond the jurisdictional reach of any country and, therefore, administered by the ISA, confirmation of its claim to exclusive resource extraction rights. "70 Indeed the trend toward utilizing the CLCS appears to be intensifying, and will likely play a central role in de-conflicting Arctic Ocean claims. One such indication is the 500% year to year increase in petitions submitted to the CLCS from 2008 to 2009. As in the East and South China Sea, it appears likely that UNCLOS and its regulatory entities will play acritical role in economic and national security "scrum" beginning to play out in the Arctic region.
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"The ability to operate freely at sea is among the most important enablers of joint and interagency operations ...."72 Therefore, sustainable access to key regional sea lines of communication directly impacts the efficacy of nearly every maritime mission set in the U.S. arsenal. Especially affected are those missions conducted in the littoral and near shore waters up to 200 nautical miles from shore. This is because the near shore environment represents a primary operating area for critical "sea basing, amphibious, expeditionary and intelligence collection operations."73 Intelligence collection is particularly important given the U.S. national security establishment's continuous need for a broad range of operational indicators. As was seen during the Cold War, the ability to collect intelligence within foreign EEZ's can contribute to a state of "enforced transparency" between potential adversaries, as well as serve a forcing function of encouraging candor and good faith in military and political dealings.74 In addition to intelligence collection, other enduring maritime mission sets-many of a constabulary nature, such as maritime interdiction in support of counter piracy, counter narcotics, and Proliferation Security Initiative-also stand to be adversely impacted to the extent coastal nations engage in EEZ "securitization lawfare.,"75 Also, any limiter on DoD's ability to sustain and refine the aforementioned maritime mission sets ultimately constrains Congress' ability to efficiently allocate national security procurement resources and optimize return on that investment. For example, the U.S. Congress has invested heavily in littoral and near shore naval platforms, authorizing over $12 billion through fiscal year 2011 for construction of next generation littoral combat ships.76 Similarly, it authorized $1.3 billion from fiscal years 2006 through 2010 for DoD training of foreign military and maritime security forces. United States to sustain homeland defense as well as theater security cooperation missions in waters adjacent to partner nations, UNCLOS "securitization" claims will constitute a continuing planning restraint maritime missions in the near shore environment.
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It is myopic for the United States to gamble that its extant approach of FON assertions and diplomatic protests will be an adequate near and long-term course of action, especially in an era of increasing national security interconnectedness. Under the geopolitical conditions prevalent during the last fifteen years, the United States may well have been better postured to leverage its significant political, economic, and military influence in support of its maritime security objectives than it will be in the coming twenty five years. While UNCLOS critics appear content to assume that staying the current course of UNCLOS abstention for the next twenty-five years is unlikely to result in adverse impact, such a sanguine assumption ought to be regarded with an "all else equal" asterisk. While the aforementioned relative advantage has clearly not evaporated, the current trend toward its erosion appears to portend that "all else" will likely not be equal going forward. Given that the dynamics of political and customary international legal norm development typically include interrelated, gradual incubation periods, as well as discernable "tipping points," a more exacting predictive model is appropriate. This is especially so given the potential that significantly increased political, economic, and military costs could attend sustaining current access levels to key regional sea lines of communication in the future. As Professor Kraska posits, "The strategic, operational and political 'landscapes' of the sea have changed." seen from the assessments of some among the Chinese naval establishment in 1994, the year UNCLOS entered into force for member states, he is not alone in this view.