Revision of U.S. ratification of UNCLOS best way to preserve freedom of navigation rights from Sun, 06/29/2014 - 11:24
The Law of the Sea Convention is the bedrock legal instrument for public order in the world’s oceans. It codifies, in a manner that only binding treaty law can, the navigation and overflight rights, and high seas freedoms that are essential for the global strategic mobility of U.S. Armed Forces, including:
- The Right of Innocent Passage, which allows ships to transit through foreign territorial seas without providing the coastal State prior notification or gaining the coastal State’s prior permission.
- The Right of Transit Passage, which allows ships, aircraft, and submarines to transit through, over, and under straits used for international navigation and the approaches to those straits.
- The Right of Archipelagic Sealanes Passage, which, like transit passage, allows transit by ships and aircraft through, over, and under normal passage routes in archipelagic states, such as Indonesia.
- The right of high seas freedoms, including overflight and transit within the Exclusive Economic Zone.
The real question is: What are the additional rights and opportunities that we would enjoy as a party to the Convention? In this connection, we might ask ourselves: What is it that we want other countries to do and not do?
The answer has long been quite simple. We want maximum freedom to navigate and operate off foreign coasts without interference.
We want that freedom for security purposes. If we mean to deter and confront threats to our security in the far corners of the globe, then we need to be able to get there and to operate there. The precise nature of the threats may change. But so long as our interests demand that we operate far from our shores, we want to minimize the cost and uncertainty of getting there and operating there.
We also want that freedom for economic purposes. Our economy is dependent on international trade. Much of that trade moves by sea. Our trading partners may change, but so long as our interests demand that we move raw materials and products to and from the far corners of the globe, we want to minimize the cost and uncertainty of the trip for any ship that carries our trade. We want security of supply and the lowest possible cost for delivering both our imports and our exports. And many sectors of our economy are increasingly dependent on the use of undersea telecommunications cables and accordingly on the freedom to lay and maintain them throughout the world.
UNCLOS promotes the United States' freedom of navigation rights in at least three ways.39 First, the Convention limits coastal States' territorial seas to twelve nautical miles.40 Second, UNCLOS affords innocent passage of ships and aircraft through other countries' territorial seas and archipelagoes, as well as through straits used for international navigation.41 Finally, the Convention sets forth maximum navigational rights and freedoms for ships and aircraft in exclusive economic zones.42 In regards to the United States' non-party status, proponents of UNCLOS argue that while these rights may exist in customary law, joining the Convention would put these provisions on firmer legal footing, as rights embodied in a treaty are more fixed than those in customary law.43Suffolk Transnational Law Review. Vol. 29. (2005-2006): 1-24. "The United States, the Law of the Sea Convention, and Freedom of Navigation."
Another very important step for the U.S. Government, to better ensure the freedom of navigation rights it now exercises, is to formally ratify the UNCLOS treaty. This step is not just to return to equal footing with other members on moral, diplomatic, and legal grounds in order to better support the rules-based- order that the United States government espouses, but also to be able to directly guide and protect U.S. interests in international fora and on the seas.437 The United States signed UNCLOS in 1994 after successfully negotiating an amendment to the document to correct earlier concerns by the industrialized states, but has not formally ratified it through the Senate. The most important UNCLOS provisions, like mari- time jurisdictions and right-of-passage, are in accord with U.S. policy so that U.S. domestic law generally adheres to UNCLOS statutes, as it also does with customary international law.438 The Department of State and DoD both support ratification to give the United States “greater credibility in invoking the convention’s rules and a greater ability to enforce them.”439 This treaty has come before the Senate several times, as recently as 2012, only to be tabled despite bipartisan support, mainly due to economic concerns with Part XI stipulations that cover the deep seabed.440 A direct American voice in the Law of the Sea Treaty debates could advocate for freedom of navigation and other U.S. interests as international law inevitably evolves, in order to counter the historic trend to circumscribe rights on the high seas by reducing its openness and limiting areas of operations. Foreign military navigation rights through an EEZ are a prime example of such restrictions with 26 countries supporting China’s and Vietnam’s restrictive positions, including major maritime states like India and Brazil.441 The Senate needs to ratify this treaty to allow the United States to defend actively its existing maritime legal interests and rights.
The Convention preserves key rights of navigation and overflight. According to Deputy Secretary of Defense John D. Negroponte, the Convention provides for a “legal framework . . . [which] is essential to the mission of the Department of Defense, and the Department of Homeland Security . . . .”147 The Convention grants American ships the right of innocent passage, allowing ships transit through the territorial seas of foreign countries without having to provide advance notice or request permission.
Moreover, the Convention establishes the right of transit passage through international straits such as the Straits of Singapore and Malacca or the Strait of Gibraltar. This right, which is absolutely critical to U.S. national security, may not be suspended, hampered, or infringed upon by coastal States.148 Also, the Convention creates the Archipelagic sea lanes passage that allows transit through routes in archipelagic states, such as Indonesia.149 Additionally, the provisions creating EEZ give the American military “the ability to position, patrol, and operate forces freely in, below, and above those littoral waters.”150
Finally, the Convention secures the right of American warships to operate on the high seas, “which is a critically important element of maritime security operations, counter-narcotic operations, and anti- proliferation efforts.”151 The Convention’s navigational rights led to its support by all branches of the military: Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, all of the Combatant Commanders, and the Commandant of the Coast Guard.152
First, there is a risk that important provisions could be weakened by amendment, beginning in November 2004, when the treaty is open for amendment for the first time. Currently, for example, the Convention prohibits coastal states from denying transit rights to a vessel based upon its means of propulsion. Some states, however, may propose to amend this provision to allow exclusion of nuclear-powered vessels. Under the Convention, no amendment may be adopted unless the parties agree by consensus (or, if every effort to reach consensus failed, more than two-thirds of the parties present agree both on certain procedural matters and on the proposed amendment). As a party, the United States would have a much greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.
Second, by staying outside the Convention, the United States increases the risk of backsliding by nations that have put aside excessive maritime claims from years past. Pressures from coastal states to expand their maritime jurisdiction will not disappear in the years ahead—indeed such pressures will likely grow. Incremental unraveling of many gains under the Convention is more likely if the world’s leading maritime power remains a non-party.
Naval expeditionary forces are also often required to demonstrate naval presence. A significant percentage of naval forces are forward deployed continuously. Such deploy- ments are designed to underwrite regional stability by demonstrating U.S. commitment to allies and friends and promote joint and combined training among friendly forces. They also gain U.S. familiarity with overseas operating environments and provide initial capabilities for timely response to crisis. It is likely that in the years ahead, our naval21 activities will occur more and more in the littoral regions of the world.
The importance of overseas presence was demonstrated in October 1994, when Iraqi Republican Guard divisions began significant movements towards the border with Kuwait. Forward deployed U.S. naval expeditionary forces, centered around the George Washington Battle Group, sortied from the Mediterranean and entered the Red Sea en route to the Persian Gulf less than 2 days after the request for additional forces was made by the Commander in Chief, U.S. Central Command. Additionally, five maritime prepositioned ships at Diego Garcia and U.S. Army ships located in the Western Pacific22 and Indian Ocean proceeded to the gulf as well.
Here again, the Convention helps these naval expeditionary forces achieve impor- tant objectives. In addition to these provisions on passage, the Convention strengthens our ability to operate in these forward areas by providing agreed rules on delimitation of23 24 maritime zones, by preserving high seas freedoms of navigation and overflight, including25 within the exclusive economic zone of coastal states, and by recognizing the special nature of military ships and aircraft in reaffirming the doctrine of sovereign26 immunity.
Joining the Convention will advance the interests of the U.S. military. As the world’s leading maritime power, the United States benefits more than any other nation from the navigational provisions of the Convention. Those provisions, which establish international consensus on the extent of jurisdiction that States may exercise off their coasts, preserve and elaborate the rights of the U.S. military to use the world’s oceans to meet national security requirements. They achieve this, among other things, by stabilizing the outer limit of the territorial sea at 12 nautical miles; by setting forth the navigation regime of innocent passage for all ships in the territorial sea; by protecting the right of passage for all ships and aircraft through, under, and over straits used for international navigation, as well as archipelagoes; by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond; and by providing for the laying and maintenance of submarine cables and pipelines. U.S. Armed Forces rely on these navigation and overflight rights daily, and their protection is of paramount importance to U.S. national security.
When all is said and done, the United States is the world's leading maritime nation and is tied to the use of the seas for political, economic, and military purposes. It has the most to gain from stability in laws governing the use of the seas, and stability over the long term can best be ensured by a widely ratified Law of the Sea Convention. Accession to the Convention by the United States will not be a panacea. Its rules are not perfect. But widespread ratification is likely to increase order and predictability, enhance adaptation to new circumstances, narrow the scope of disputes to more manageable proportions and provide means to resolve them, and greatly simplify the United States security paradigm. For the operational commander, ultimately charged with the responsibility for the men and women who may be taken in harm's way, the Law of the Sea Convention represents an essential first step in defusing contentious maritime issues.
The Convention codifies navigation rights and freedoms essential for the global mobility of our armed forces and the sustainment of our combat troops. Benefits include:
- a 12 nautical mile limit to territorial seas
- innocent passage through territorial seas
- archipelagic sea lanes passage though island nations like Indonesia
- laying and maintaining submarine cables for communication warship right of approach and visit
- sovereign immunity of warships and public vessels
- transit passage in international straits (and their approaches)
- high seas freedoms in exclusive economic zones (EEZs)
The last two are the most important. Transit passage gives us freedom of movement above, on, and below the surface in critical chokepoints such as the Straits of Singapore and Malacca, Hormuz, and Gibraltar, and the Bab el Mandeb. Exercising high seas freedoms in foreign EEZs includes conducting military activities.
Our non-party status is hurting us. It denies us a seat at the table when the 155 parties to the Convention interpret (or try to amend) those rights and freedoms; it denies us use of an important enforcement tool against coastal state encroachment (binding dispute resolution); it hinders us in our efforts to recruit more countries to the Proliferation Security Initiative (PSI); it creates a seam between us and our coalition partners; it prevents us from gaining legal certainty for our extended continental shelf in the Arctic (and elsewhere); and it denies U.S. companies access to deep seabed mining sites.
Relying on customary international law as the basis for those rights and freedoms is an unwise and unnecessary risk. Our Soldiers, Sailors, Marines, Airmen, and Coast Guardsmen put their lives on the line, every day, to preserve the rights and freedoms codified in the Convention; they deserve to be on the firmest legal ground possible as they go into harm’s way; they deserve the legal certainty that accrues from treaty based rights.