Revision of U.S. ratification of UNCLOS critical to naval soft power needed for cooperation with other navies from Sun, 06/29/2014 - 11:26
Although there may have been a time when the U.S. could simply declare its will and rely on the persuasive power of its global presence and naval gross tonnage to ensure cooperation, the guarantors of success in the modern maritime domain are more likely successfully coordinated coalitions and bilateral relationships. UNCLOS membership would provide a strong foundation for both.
Quicktabs: Arguments
Myth 1: “We don't need no stinkin' UNCLOS! " as customary international law will protect important U.S. interests.
Not so. The Convention provides clear legal rules in a written, comprehensive treaty, as opposed to sometimes fuzzy customary international law that is easily challenged by unilateral claims and altered by countries' practices over time. The United States was one of only four countries to vote against the Convention in 1982 and continues to be aligned with such non-signatories as North Korea, relying on a curious mixture of customary law and unofficial adherence to UNCLOS provisions. We can't have it both ways, especially as we seek international partnership in other critical areas of national concern-such as the I.OOO-ship navy and a variety of international governance regimes for the good order and security of the maritime commons.
Admiral Harry Ulrich, Commander, US Naval Forces Europe, espouses a relatively simple formula for the global war on terrorism: have more partners than your ad- versaries have. The reasons are elementary. The struggle against disorder knows no flag. Waging that struggle has become a team sport. Vice Admiral Morgan has been the leading voice for the 1,000-ship multinational navy/Global Maritime Partner- ship, a concept designed to attract the kind of partners Admiral Ulrich seeks. Does the Global Maritime Partnership (and the Global Fleet Station initiative70) need a unifying global maritime strategy that promises to respect the rules of interna- tional law? Many of the potential 1,000-ship-navy partners think so.71
In their response to the November 2005 “1,000 Ship Navy” article by Admirals Morgan and Martoglio,72 the naval commanders of France, Ghana, India, Portugal and Spain all referred to the rule of law or legal considerations.73 The French com- mander, for example, observed that any 1,000-ship-navy operations must be “in full compliance with the UN Convention on the Law of the Sea . . . .” Portugal ex- pressly referred to the “rule of law,” and India asked whether the 1,000-ship con- cept should be established under the aegis of the United Nations. Admiral Soto of the Spanish Navy observed that “[t]ogether we must find a legal solution to pre- serving the natural flow of friendly maritime trade while denying freedom of action to those criminals who attempt to use the maritime space for illegal activities.” It seems clear that respect for international law has the potential to unite or fracture the embryonic 1,000-ship navy.
One year later, many of those same foreign CNOs were asked to respond to Admiral Mullen’s plan for a new US maritime strategy.74 Once again, interna- tional law figured prominently in several of the responses. The Commandant of the Brazilian Navy urged that the new strategy “be guided by principles sanctioned by international law,” a viewed shared by the Secretary General of the Peruvian Navy and the Portuguese Navy Chief of Staff. Their counterpart in Colombia emphasized the need for an “international legal mechanism of cooper- ation.” Uruguay’s reply was also directly on point: “Multilateral cooperation among navies is legitimate activity when it is based on the law.” The Commander of the Lebanese Navy cited the 1982 LOS Convention and cautioned against the United States acting alone, while the new Chief of Staff for the Spanish Navy highlighted the need for the US Navy “to operate alongside its allies in accordance with international law.” The Australian Maritime Doctrine elegantly and forcefully captures the central importance of law and legitimacy for one of America’s most respected partners:
Australia’s use of armed force must be subject to the test of legitimacy, in that the Government must have the capacity to demonstrate to the Parliament and the electorate that there is adequate moral and legal justification for its actions . . . . [T]his adherence to legitimacy and the democratic nature of the Australian nation state is a particular strength. It is a historical fact that liberal democracies have been more successful in the development and operation of maritime forces than other forms of government, principally because the intensity and complexity of the sustained effort required for these capabilities places heavy demands upon a nation’s systems of state credit, its technological and industrial infrastructure, and its educated population. Sophisticated combat forces, in other words, depend directly upon the support of the people for their continued existence.75
In Working with Other Nations, a U.S. Navy strategy white-paper, Navy strategists suggest that multi-lateral, combined naval operations with friendly nations is the preferable way to further political, economic, and se- curity objectives in an economically and politically interdependent world.261 United States national security continues to require forward naval presence to ensure that information, capital, raw material, and manufactured goods flow freely across borders and oceans.262 One way to secure forward naval presence in foreign EEZs without contention and confrontation is by "establishing relations with security partners in peacetime before the onset of a crisis."263 A useful legal tool in support of this strategy is to create consensus on the law through multi-lateral cooperation and agreement.264
Becoming a Party to the Law of the Sea Convention directly supports our National Strategy for Maritime Security. As the President noted in the opening pages of the Strategy: “We must maintain a military without peer – yet our strength is not founded on force of arms alone. It also rests on economic prosperity and a vibrant democracy. And it rests on strong alliances, friendships, and international institutions, which enable us to promote freedom, prosperity, and peace in common purpose with others.” That simple truth has been the foundation for some of our most significant national security initiatives, such as the Proliferation Security Initiative. As the leader of a community of nations that are Parties to the Convention, more than 150 in total, the United States will be better positioned to work with foreign air forces, navies, and coast guards to address jointly the full spectrum of 21st Century security challenges.