ARGUMENT HISTORY

Revision of U.S. ratification of UNCLOS best way to preserve freedom of navigation rights from Sat, 11/11/2017 - 17:12

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

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.

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Sandalow, David B. Law of the Sea Convention: Should the U.S. Join? . Brookings Institution: Washington, D.C., August 2004 (7p). [ More (6 quotes) ]
The critics show no understanding of the United States' continuing role as a global protector of navigational freedom. Yet a core issue at stake is the control of unilateral coastal state claims against U.S. shipping, both military and commercial. In this respect, the convention is the most important and historic achievement in the safeguarding of these interests. For example, the new provisions for the protection of straits transit and archipelagic sea lanes passage, as well as the improved provisions for innocent passage in territorial seas, are of utmost importance to U.S. naval mobility. The progressive advancements that the U.S. negotiating team achieved to this end are completely missed by the critics; by second guessing U.S. naval experts, it seems they would rather snatch defeat from the jaws of victory. Paradoxically, by opposing the convention, the critics reinforce the views of Third World nations that the United States defeated in negotiations. We must also never forget that thousands of U.S. servicemen and servicewomen, who volunteer to go in harm's way, depend on the navigation and over-flight provisions guaranteed in the convention. As General Richard B. Myers, the chairman of the Joint Chiefs of Staff, recently stated, "The Convention remains a top national security priority." (4)
Schachte, William L and John Norton Moore. "The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.." Journal of International Affairs. Vol. 59, No. 1 (Fall/Winter 2005) [ More (18 quotes) ]

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.

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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.

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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.

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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.

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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]

A seventh reason for United States accession to the convention is the changing global security environment. A diminishing access to overseas bases coupled with con- tinuing instability in many parts of the world requiring naval presence (Somalia and Haiti are but two examples), when coupled with the growing naval power of many developing nations with regional ambitions, point to an increasing need for naval mobility by the United States. The last 2 decades in particular have witnessed an increase in naval conflicts as well as demarcation and fishing disputes." These trends make the need for a firmly stated and fully accepted compact ensuring maritime and naval mobility all the more necessary.23

The ability of the United States to achieve maximum flexibility and mobility within this changing global security environment could be greatly enhanced by accession to the 1982 Convention and the concomitant stabilizing of the world's oceans. This also has the strong potential to minimize and control disputes that directly or indirectly prejudice U.S. political, economic, and defense interests.24 As the world's leading maritime power, the United States must place a uniquely high premium on the ability to move by sea anywhere on the globe. While the current lack of an established global regime has not yet resulted in any overt denial of U.S. transit rights through straits or archipelagic waters, the issue is becoming a more contentious one." It is likely that a universally recognized treaty could avert such problems.

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