Time to Ratify UNCLOS: A New Twist on an Old Problem
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The reality is that the increased legitimacy obtained through ratification of UNCLOS can be leveraged to enhance PACOM shaping operations in the South China Sea. Specifically, increased legitimacy would improve the legal standing of U.S. operations conducted under the Freedom of Navigation (FON) Program, and break down barriers currently restricting recruitment to the Proliferation Security Initiative (PSI). , In both cases this could potentially reduce the operational requirements of the theater commander and result in increased multilateral maritime security cooperation.
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Rightly so, opponents point out that over the past 30 years the consequences of remaining a non-party have been negligible, especially with respect to national security.33 Unfortunately, this in no way guarantees similar results in the future.
Although status quo advocates frequently acknowledge that the United States is already bound by the convention through customary international law and President Reagan’s 1983 Ocean Policy, this isn’t the same as being a party to the convention.34 Furthermore, this is almost circular logic to show that the United States can exploit the convention’s customary law status to receive protection while still operating as a non-party. Such is the case with submissions to the Commission on the Limits of the Continental Shelf (CLCS), economic security within the U.S. exclusive economic zone (EEZ), deep-seabed mining, and freedom of navigation on the high seas.35
This practice, however, is a slippery slope because, “customary law does not provide the precision and detail of a written document. It may establish a principle, but its content may remain imprecise, subject to a range of interpretations.”36 Taking this a step beyond disagreement over interpretations, customary law can and will change and as the U.S. Navy Judge Advocate Corps (JAG) asserts, “relying on customary international law as the basis for...rights and freedoms is an unwise and unnecessary risk.”37
It is not too late to accede to the convention, and unlike opponents and status quo advocates would have the public believe, there are still good reasons to take the next step and lock into the convention while conditions remain favorable to U.S. interests.
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Certainly ratification will place the United States on firm legal standing, but more importantly, ratification will add significantly to the legitimacy of U.S. operations conducted under the framework of UNCLOS. But does obtaining legitimacy carry enough weight to warrant ratification? And would ratification increase the legitimacy of U.S. action? Absolutely. Through theory and practical application, legitimacy, like the other principles of war, has come to form the bedrock foundation by which joint operations are planned and conducted.38 Legitimacy isn’t, however, just “an other principle” of warfare that can be brushed aside when inconvenient. Instead, and rightfully so, legitimacy concerns often times drive commanders to operate within a multinational construct.39 Thus, sustaining legitimacy is, and will remain, a priority for leaders at all levels of the military and must be included in the planning and execution phases to ensure operations are viewed in a favorable light post implementation.40 Moreover, legitimacy is no longer an imperative solely for the politician or diplomat; that line has become hopelessly blurred.41 Instead, legitimacy has become “a prime example of the nexus between politics and war.”42 In other words, it sends a clear message to the world that military actions match rhetoric with respect to the rule of law.43 Furthermore, speaking to the issue of UNCLOS directly, legitimacy is the seam created when U.S. policy is to operate within international law, but not as part of it. Thus, legitimacy is not legality, although the law is certainly a component.44 Clearly U.S. Freedom of Navigation and Proliferation Security Initiatives, both underwritten by UNCLOS provisions, are at least debatably legal under current practice but still they fail to achieve widespread international approval.
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This is exactly the problem with the U.S. position on UNCLOS and the disconnect between stated intentions and the ultimate failure to ratify. As John B. Bellinger III points out, treaty partners “lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don’t ultimately become party to them.”48 Specifically what Mr. Bellinger is referring to is the loss of U.S. credibility, or in other words the rightness of actions. Furthermore, because the United States is so successful at negotiating treaties, when representatives push hard for and are in turn granted changes within the document (as is the case with the 1994 agreement on implementation), but then ultimately fail to accede, it is very frustrating for the other nations involved.49 Again, this erodes U.S credibility and in turn legitimacy of action. With this in mind, the U.S. Senate must take the earliest opportunity to harvest this “low hanging fruit” and free PACOM from a barrier that detracts from shaping operations in the South China Sea (SCS).50
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In order to be prepared to counter specific threats as they arise across the globe, operational commanders continuously conduct shaping activities in order to give U.S. forces the most favorable operating conditions across the spectrum of conflict. As defined by Joint Publication 3-0, shaping operations are intended to dissuade or deter adversaries, assure or solidify relationships, enhance international legitimacy, and gain multinational cooperation.51 Therefore, collectively, shaping operations are arguably the most important activity undertaken within an area of responsibility (AOR).
In the PACOM AOR, this note rings especially true. With no major combat operations currently underway, the majority of operations conducted directly support shaping operations. Furthermore, strategic guidance put forth by ADM Robert F. Willard, Commander U.S. Pacific Forces, seeks to protect and defend U.S. interests in the region while promoting regional security and deterrence of aggression; all functions within or underpinned by the effectiveness of shaping operations.52 Specifically, for the South China Sea this means maintaining forward presence, providing for extended deterrence, and concentrating on the focus areas of allies and partners, China, and transnational threats.53 In every instance, the United Nations Convention on the Law of the sea and the 1994 Implementation Agreement support those objectives. In fact, for the South China Sea, Freedom of Navigation assertions and the Proliferation Security Initiative would benefit immediately.
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When the Convention on the Law of the Sea came into effect in 1982 it sought to broadly codify and balance coastal state territorial and resource rights against the need for freedom of navigation by maritime nations.54 Coastal state territorial seas were expanded, but only after acceptance of regimes for innocent and transit passage.55 The same balance was struck when creating archipelagic lanes through island nations and allowing for high seas freedoms in the newly created Exclusive Economic Zone (EEZ) where coastal states now maintained resource rights.56,57 This area of “shared rights and responsibilities,” along with coastal nation propensity to “adopt excessively generous” baselines, has proven quite contentious for the United States as it seeks to maintain freedom of navigation and peacetime access around the globe.58,59 Furthermore, coastal state interpretation of the convention in a manner most beneficial to self-interest creates major difficulties for the United States.
As a non-party to UNCLOS, the U.S. lacks “a seat at the table when the  parties to the Convention interpret (or try to amend)” the rights and freedoms protected within the convention, and forfeits the use of binding dispute resolution to counter coastal state encroachment.60 Instead these freedoms negotiated in the convention, but either ignored or incorrectly interpreted, must be objected to through the U.S. Freedom of Navigation (FON) Program to keep customary international law from developing contrary to U.S. strategic interests.61 Unfortunately, “that approach plays directly into the hands of those foreign coastal States that want to move beyond the Convention,” because “they too cite customary international law as the basis for developing claims of coastal State sovereignty in the EEZ.”62
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As mentioned previously, the enhanced legitimacy gained through ratification of UNCLOS would aid PACOM in several ways. First, legitimacy gives FON assertions and diplomatic protests more weight, and leaves nations such as China constrained in their ability to challenge U.S. action. Because UNCLOS is almost universally accepted, U.S. actions would receive “tacit support” from the 160 nations party to the convention allowing commanders to more aggressively assert navigational rights within the approved framework of UNCLOS should diplomacy fail.66 In other words, after military capability, legitimacy is the second prong necessary to unilaterally conduct effective FON assertions in the SCS.
Unilateral action is always the last resort, and ratification of UNCLOS helps dramatically increase the legitimacy of U.S. FON assertions when viewed from a multinational vantage point. Rhetoric marching lock step with action will decrease PACOM difficulties convincing SCS nations that U.S. interests are not just self-serving. Although self interest plays a part, the externalities of the U.S. FON program help all coastal and maritime nations, especially those like the Philippines who do not have a strong blue water navy able to conduct these assertions on their own. Restated, ratification of the convention shows our allies and partners that we are committed to international law and a global “partnership of maritime nations sharing common goals and values.”67
Additionally, legitimacy serves to underpin United States assertions that we are committed to the rule of law; critical if the U.S. hopes to achieve maritime security goals in the SCS. Looking closely at the EP-3 incident from 2001, notably absent is any real resolution of the underlying issues. Mainly the serious disconnect between Chinese and U.S. interpretations of UNCLOS provisions as related to military activities in the EEZ. Moreover, other than saber rattling by the U.S. and China, our closest allies in the region failed to lodge strong protests against this clear violation of UNCLOS. At best this shows other regional powers at least marginally acknowledge Chinese EEZ regulations, and at worst brings into question whether international powers fully believe U.S. actions are completely legitimate. Ratification eliminates that seam and the increased legitimacy gained helps U.S. allies come to our defense should similar issues arise in the future.
Finally, legitimacy is the key to future dialog with China over freedom of navigation in the SCS. UNCLOS already provides the framework for communication and resolution of varying interpretations of convention provisions. With an economy increasingly dependent on maritime freedom in the global commons, China may be receptive to multilateral dialog and change internal laws to better conform to the UNCLOS.68 This would be a win-win for PACOM as it would significantly decrease the requirement for, and probability of miscalculation during, FON assertions. Moreover, dialog could lead to multilateral security cooperation activities with the PRC Navy, such as the Proliferation Security Initiative.69
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Launched in 2003, “the Proliferation Security Initiative (PSI) is a global effort that aims to stop trafficking of weapons of mass destruction (WMD).”70 The PSI is not a treaty, but instead relies on preexisting international legal frameworks – including the Law of the Sea Convention – and voluntary commitment to a “Statement of Interdiction Principles” to guide cooperation and prevent proliferation.71,72 Despite the endorsement of ninety-eight nations, major players have proved wary to join the United States in this partnership.73,74,75
Conspicuously absent from PSI are both Indonesia and Malaysia who both border the worlds busiest maritime straight. With nearly 525 million metric tons traveling this corridor annually, the failure to expand PSI to this SLOC puts international interdiction efforts at a significant disadvantage and complicates an already difficult problem in the PACOM AOR.76 This failure to expand PSI should come as no surprise, however. As former to in 2007, many critical Pacific countries would like to support PSI, but are unable to “convince their legislatures that PSI interdiction activities will only occur in accordance with international law, including the Law of the Sea Convention, when the leading PSI nation, the United States, refuse to become a party to the Convention.” "77 The legitimacy obtained through ratification of UNCLOS would solve this problem immediately. Recruiting countries to PSI is just the first step, however, as enhanced legitimacy has second-order effects.
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Transnational threats are an issue for all nations in the SCS, and although PSI forms a framework for WMD interdiction, more critically it creates a venue for multinational cooperation, a critical PACOM function. To date 40 PSI exercises have taken place, all directly supporting the PACOM Theater Security Cooperation Plan.78 Moreover, these exercises aren’t just a check in the box for the U.S., or another tick on a chart to show international support. Exercise DEEP SABRE II conducted in 2009 by Singapore, for example, was incredibly successful with 19 major maritime nations participating.79 Furthermore, these exercises build partnership capacity that can be leveraged in the future.80 As the U.S. Maritime strategy states: “No one nation has the resources required to provide the safety and security throughout the entire maritime domain,”81and ultimately legitimacy must underpin that philosophy.