Missing the Boat: Failure to join the Law of the Sea Convention harms U.S. interests
Cmdr. James Kraska USN makes the conservative case for ratifying UNCLOS, arguing that the "treaty is the nation’s most effective means for resisting efforts by NGOs and others to diminish global freedom of the seas," and that only "a handful of influential conservatives are trashing the very treaty that best protects and promotes our interests."
The drama so far is thick with irony. These criticisms from the political right have not grasped the real threat to U.S. oceans interests, which is the relentless campaign by nongovernmental organizations (NGOs) such as Greenpeace, in conjunction with certain coastal states, including some of our closest allies such as Canada and Australia, to unilaterally impose maritime rules to restrict international shipping on the oceans and aircraft overflight of the seas for purported environmental reasons. John Bolton, the former U.S. ambassador to the United Nations, describes the partnership between NGOs and some like-minded governments as “norming,” in which “civil society” combines its efforts with the most politically liberal governments to develop international law in opposition to U.S. interests. Many of the most progressive maritime rules emerging from this process are inconsistent with the navigational freedoms protected in the convention, and the U.S. relies on those freedoms to ensure submarines can transit through the world’s chokepoints and launch military operations from ships serving as “sea bases” in the littoral regions of the world. Similarly, less well-intentioned nations such as North Korea, China and Iran have sought to impose control over the ocean out to 200 miles by establishing security zones. Both types of coastal state regulations place at risk American economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing the whim of coastal states to deny the use of the global commons.
The fact that some countries that already belong to the convention and are trying to change it through reinterpreting the terms of the treaty shows that those states understand how to convert a struggle for power into a struggle to shape the law.
China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law, integrating into its maritime strategy elements of “legal warfare” and an effective public diplomacy campaign to capture world public opinion. By declining to become a member of the treaty, the U.S. has so far ceded the opportunity to influence and shape the constitution for the oceans, yielding the stage to China, North Korea and Iran to popularize their restrictive approach to navigational rights. This is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one’s political opponents have staked out objectionable positions on the issues and are engaged in “reinterpreting” its most fundamental provisions.
Executives in the energy, telecommunications and shipping industries understand how the convention will make us more prosperous. Military commanders understand how the convention will make us more secure, and the Joint Chiefs of Staff strongly support the treaty. Some detractors of the treaty have unfairly (and inaccurately) suggested that our most senior admirals and generals support the Law of the Sea due to the persistence of a cadre of Navy lawyers. In fact, our military leaders are savvy, independent thinkers who are accustomed to gathering the facts and exercising decisive judgment. Moreover, Navy lawyers are foremost naval officers wearing the uniform and embedded into military units in peacetime and combat. Sharing two professions, the profession of arms and the profession of law, this is not a silkstocking club of suits, but advisers who train and deploy with the force, providing advice on the projection of sea power on the water and ashore.