Revision of U.S. ratification of UNCLOS best way to preserve freedom of navigation rights from Fri, 06/30/2017 - 11:30
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.
Quicktabs: Arguments
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.
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
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.43Noyes, John. "The United States, the Law of the Sea Convention, and Freedom of Navigation." Suffolk Transnational Law Review. Vol. 29. (2005-2006): 1-24. [ More (4 quotes) ]
Critics of ratification argue that U.S. military flexibility under the Convention is compromised because it will need to bend to the will of Convention guidelines.162 As discussed above, however, Convention provisions enhance flexibility by allowing access to a vast array of territorial seas.163 Additionally, the U.S. military enthusiastically supports the Convention, giving it perhaps the strongest endorsement in the interest of national security.164 Admiral Vern Clark, Chief of Naval Operations, in 2004 statedClark, Vern. "Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ], “I fully support the Convention because it preserves our navigational freedoms, provides the operational maneuver space for combat and other operations for our warships and aircraft, and enhances our own maritime interests.”165Clark, Vern. "Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ] Furthermore, the Vienna Convention, which governs international treaties, provides that where a state’s national security is threatened (or circumstances fundamentally change) it may suspend its obligations under a treaty.166 In the unlikely event that the Convention inhibits the United States from ensuring national security, the U.S. would be no worse off since it would not be bound by the Convention in those instances.
In a 1996 report, the Department of Defense and the Joint Chiefs of Staff set forth the major national security benefits of the Law of the Sea Convention.54 The foremost benefit is global access to the oceans throughout the world, including areas adjacent to coastal states, which include the contiguous zone and the EEZ.55 These interests extend to U.S. security and economic interests in global high seas freedoms, including freedom of navigation, overflight, and telecommunications.56 Benefits also include a stable, comprehensive, and nearly universally-accepted Convention, modified by the 1994 Agreement, to promote public order and free access to the oceans and the airspace above it.57
The National Strategy for Maritime Security (NSMS) identifies freedom of the seas as a “top national priority.”26 Naval forces depend upon global strategic mobility and tactical maneuverability to conduct the spectrum of sea-air-land operations in pursuit of the national interest, and these operations include:
- operating the most survivable component of nuclear deterrence, ballistic missile submarines (SSBNs);27
- conventional global strike;28
- air and missile defense;29
- information operations;30
- sea and land direct attack with missiles, naval gunfire and aircraft;
- crisis and disaster response, such as tsunami relief;31
- maritime homeland security;32
- amphibious and expeditionary operations in littoral areas;33
- insertion of special operations forces (SOF) for missions such as counterinsurgency and counterterrorism;34
- constabulary functions and maritime security operations (MSOs) such as counterdrug operations35 and piracy repression;”36
- counter proliferation operations such as the Proliferation Security Initiative (PSI) and the Protocols to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA);37
- exercise of the right of approach, approach and visit, maritime interception operations (MIO) and visit, board, search and seizure (VBSS);
- naval control and protection of shipping (NCAPS);38 exercise of sea lines of communication (SLOCs) through the global supply chain and strategic supply;
- sea control;39 anti-access and sea denial strategies such as mining; civil-military affairs;40
- security cooperation and peacekeeping;41 and forward presence.42
In addition to securing the homeland, the exercise of these military activities ensures and relies on U.S. command of the global commons, which means the United States is readily able to insert power anywhere throughout the globe.43 The Chief of Naval Oper- ations has said assuring access to the oceans and preserving the freedom to conduct naval operations is directly related to deterring war, or, if necessary, winning it.44