UNCLOS will not impact U.S. submarine operations
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Submarine forces are a key tool in waging the Global War on Terrorism and their unimpeded use is of crucial significance.58 The use of submarine forces provides a unique tactical advantage because of a submarine's ability to monitor a potential enemy undetected for a long duration.59 The ability to transit the ocean beneath the surface is therefore critical to a submarine's ability to maintain the advantage of covertness.60
The impact of UNCLOS on submarine operations hinges on interpretation of Article 20 of the treaty.61 Gordon England, former Secretary of the Navy, has stated that UNCLOS does not restrict or prohibit submarine activities.62 UNCLOS specifically guarantees the right to conduct transits through international straits in "normal modes", which may include submerged transit in the case of submarines. Nevertheless, the Convention mandates that ships refrain from acts that are "prejudicial," including submerged transit in territorial waters; failure to meet this obligation results in a vessel's loss of innocent passage status.63 But, UNCLOS does not explicitly prohibit submerged transit in territorial seas altogether, especially in international straits.64 This notion is echoed by Deputy Secretary of Defense, John Negroponte, who has stated that UNCLOS "does not prohibit or impair [. . submarine activities in anyway.""
"National Security Implications in the Global War on Terrorism of the United States Accession to the United Nations Convention on the Law of the Sea
." Dartmouth Law Journal
. Vol. 7, No. 2 (2009): 117-131. [ More (9 quotes) ]
UNCLOS specifically guarantees the right to conduct transits through international straits in "normal modes", which may include submerged transit in the case of submarines. UNCLOS does not explicitly prohibit submerged transit in territorial seas altogether, especially in international straits.