In the final presentation, Ambassador David A. Balton discussed how ratifying UNCLOS would advance numerous U.S. interests. First, he noted that the United States is the world’s leading maritime power. Only as a party to UNCLOS can the United States best invoke and ensure respect for its provisions on freedom of navigation. Second, the United States has the largest EEZ on the planet, as well as a continental shelf that is likely to be the envy of most other nations. Only as a part can the United States best secure our rights as a coastal state under UNCLOS. Third, only as a party to UNCLOS can the United States make best use of the treaty’s provisions on the marine environment and fisheries, or shape the rules for mining the seabed beyond the jurisdiction of any nation. Ambassador Balton agreed with Rear Admiral Kenney that the United States would benefit from being able to use UNCLOS procedures for resolving disputes, adding that becoming a party would allow the United States to nominate members of the International Tribunal for the Law of the Sea. He also agreed that accession would allow the United States to maximize leadership on maritime issues. Further, Ambassador Balton emphasized that accession would better allow the United States to maintain the balance of interests in the law of the sea described by Professor Caron. Accession is preferable to reliance on customary international law because customary law is subject to erosion. Overall, Ambassador Balton explained that the United States secured everything it wanted in the convention, given that the related 1994 agreement on deep seabed mining satisfied our concerns with respect to those issues.

Next, Ambassador Balton discussed emerging issues that will best be handled under the UNCLOS framework. First, as the oceans warm the Arctic will become more accessible for shipping and oil and gas extraction, among other uses. All other Arctic nations are parties to UNCLOS, and the United States’ failure to join complicates negotiations and weakens our credibility in international talks. Second, Ambassador Balton emphasized the disadvantage we face as a non-party in respect of our extended continental shelf, the area of seafloor beyond 200 miles from our coasts that meet certain criteria set forth in the Convention. The United States estimates that it has an extended continental shelf approximately the size of California. Only as a party to UNCLOS can the United States best secure international recognition of the outer limits of our continental shelf.

The advantages of U.S. ratification are clear. The United States would be able to invoke clear rules to support its claims to navigational freedoms.⁶ It would be able to rely on the text of the Convention to support its claims to an extended continental shelf in the Western Gap area of the Gulf of Mexico⁷ and in the Arctic.⁸ It would be able to utilize the principles and institutions of the Convention to work with other nations to protect the marine environment.⁹ It would be able to utilize the sophisticated and flexible dispute-resolution procedures established by the Convention. It would be able to put a U.S. ocean law expert on the International Tribunal for the Law of the Sea and a U.S. scientist on the Commission on the Limits of the Continental Shelf. It would be able to participate actively in the interpretation and implementation of all aspects of this comprehensive treaty, and thus could better protect all of its ocean interests.10

The debate over whether to ratify has been characterized as one between “interests with varying degrees of political and eco- nomic power.”²²¹ Historically, the competing interests have been domestic private industries, such as petroleum, fishing, and hard minerals, government arms, such as the military and defense department, and also scientific communities.²²²

Today, the Convention enjoys widespread support from virtually all groups that have an interest on the seas, including American business groups, various military defense officials and groups, environmental and public interest organizations, high level administration officials, and legal and research bodies, satisfying rationalist observers that the right influences are in favor of the Convention.²²³

Finally, the critics brush aside the consensus among affected ocean interests and knowledgeable oceans experts in the United States in favor of their own judgment as persons who clearly lack expertise in international law or operational U.S. maritime policy. Indeed, few conventions have been so unanimously supported by knowledgeable experts and affected interests. Supporters include every president, both Democrat and Republican, who has considered the convention subsequent to the successful 1994 renegotiation of Part XI on deep seabed mining, Joint Chiefs chairman, combatant commanders and secretaries of state from the Nixon administration to today; not to mention every affected U.S. oceans interest including the oil and gas industry, fisheries, shipping and oceanic cables industries; to marine scientists and environmentalists. Most recently, the congressional U.S. Oceans Commission and the new Bush administration Oceans Interagency Task Force both unanimously recommended Senate advice and consent on the convention. As deliberations continue, senators might want to ask who they trust more for national security advice: every chairman of the Joint Chiefs, the combatant commanders of our united geographic commands and the consistent view of the Navy since the Nixon administration, or those few who admittedly are not naval, oceans or international law experts. Further, how can the totality of U.S. agencies, military departments and private sector oceans industries representatives constitute a "special interest" as charged by the critics? By what criteria are the most vocal critics not special interests?

From the negotiating history to the present, freedom of the seas has been the principle U.S. national interest in the treaty. In early 2007, Assistant to the President for National Security Affairs Stephen B. Hadley wrote to the Chairman of the Senate Foreign Relations Committee, “the Convention supports navigational rights critical to military operations and essential to the formulation and implementation of the President’s National Security Strategy, as well as the National Strategy for Maritime Security.”⁶⁷ On May 15, 2007, President Bush declared, “Joining [the Law of the Sea Con- vention] will serve the national security interests of the United States, including the maritime mobility of our armed forces world- wide.”⁶⁸ Shortly thereafter, on June 26, 2007, the Joint Chiefs of Staff, which includes the Chairman and the Service Chiefs, all signed a letter to the Senate in support of the Convention.⁶⁹

Additionally, two commissions, the National Commission on Oceans Policy and the Pew Oceans Commission, have argued in the strongest possible terms for U.S. ratification. The first, chaired by former-CNO Admiral James Watkins, in its 20 September 2004 report, An Ocean Blueprint for the 21st Century, unanimously recommended adoption and concluded: “Time is of the essence if the United States is to maintain its leadership role in ocean and coastal activities.” The presidential response to the report reflected the ongoing support of the executive branch—and especially the current administration—that “As a matter of national security, economic self-interest, and international leadership, the Bush administration is strongly committed to U.S. accession to the UN Convention on the Law of the Sea.”³

Support for U.S. accession to the Convention is surprisingly broad14. Some of the architects of plans to scuttle the Convention treaty under the Reagan administration have now come around to support it because the more odious provisions were amended or eliminated since that time15 The Navy, Coast Guard, National Oceanic and Atmospheric Administration, the State Department and the White House, support accession. These groups support accession despite the fact that they occasionally squabble over its implementation, largely due to the dual interest of the U.S. (e.g., the environmental protection mandate of the Coast Guard vs. the security mandate of the Navy has put these two forces at odds in the past16). Likewise, major resource extracting industries and their trade groups, who are often at odds with environmental groups over regulations, share a common interest with many of these groups in ratifying the Convention. Finally, the most authoritative body on U.S. ocean science and policy ever assembled, the Joint Ocean Commissions Initiative, chaired by retired Navy Admiral James Watkins and former Congressman and White House Chief of Staff Leon Panetta, has indicated U.S. accession to the Convention as one of its highest priorities.

The other factor that is different this time as the Senate considers ratification is the overwhelming support of U.S. business. Manufacturers along with oil, telecommunications, and shipping companies, and every other sector of the economy with a stake in access to sea lines of communication and undersea resources support ratification of the convention. Both the American Petroleum Institute and the U.S. Chamber of Commerce have voiced their support. Senator Kerry is taking advantage of this support from U.S. businesses by including their representatives in upcoming hearings.

In a rare show of solidarity, American labor and the environmental community have joined hands in supporting accession. The AFL-CIO and the Seafarers International Union of North America both sent letters to the administration in the last year expressing support. A group of nine environmental conservation groups, including the Environmental Defense Fund, the Natural Resources Defense Council, the Ocean Conservancy, and the World Wildlife Fund, sent a letter to Secretary Clinton in October voicing support for ratification.

The Law of the Sea has been ratified by 162 countries, including every other member of the UN Security Council and every other industrialized nation on the planet. It undergirds the modern international order in the maritime domain, an order built by the United States and its allies. It is the only comprehensive treaty recognized worldwide that lays out the rules for vessels on the high seas. The U.S. Navy and U.S. Coast Guard, recognizing its value, operate under its guidelines even in the absence of ratification.

Both within Democratic and Republican presidential administrations, U.S. govern- ment officials, industry group representatives, and senior officers of the armed forces have forcefully and persuasively testified as to the merits of the LOS Convention for the United States.⁵ The Treaty is strongly in the American national interest: promoting the require- ments of a global security presence, providing a framework for preservation of maritime mobility and maneuverability, creating a system for facilitating transnational trade and promoting economic prosperity, and creating a regime of binding dispute resolution and conflict avoidance that is a cornerstone for building a stable legal order for the oceans. Indeed, a comprehensive case for U.S. accession already has been made most eloquently by Ambassador John Norton Moore and retired Rear Admiral William L. Schachte in a paper that has been widely distributed on Capitol Hill.⁶

The debate over U.S. UNCLOS ratification is a familiar one. It focuses on whether it is better for the United States to be inside a flawed, sometimes troublesome international system where Washington can exert power to minimize the damage the organization can do, or to remain outside such an organization, unfettered by the agreements others are making. Since the Reagan administration, the United States has generally followed the latter approach, one favored by politically conservative factions.

The emerging Arctic-related issues challenge this prevailing approach, however. Being outside UNCLOS has reduced U.S. ability to influence debates that are increasingly relevant to the country's primary interests. In response, a powerful coalition of industries, environmentalists and hawkish foreign policy groups and the Bush administration have aligned in support of the treaty -- though not yet in a coordinated manner. Traditionally conservative political groups are coming to view the price of nonparticipation as growing in relation to the sacrifices of signing on. As a result, entrenched interests aligned against the treaty are shrinking, and the question increasingly appears to be one of when UNCLOS will be ratified, not whether.

Opposition in the United States to ratification of UNCLOS has largely been based on arguments relating to U.S. sovereignty and the power of international organizations. Libertarian and conservative groups have said the treaty would reduce U.S. ability to move its Navy in waters heretofore understood to be open, international waters. Others have pointed to the International Seabed Authority, alleging it is too powerful since under UNCLOS it has made the power to explore deep-sea minerals no longer simply a matter of determining who was there first with a capability to exploit the resources.

Voices against ratifying UNCLOS generally have been politically conservative. With the Arctic issues rising to the surface, core conservative constituencies -- business and foreign policy hawks -- see significant threats emanating from nonparticipation and clear benefits to participation.

As the Arctic issues proliferate, however, conservatives and the foreign policy establishment are beginning to view sitting on the sidelines as increasingly disadvantageous -- as is the military. Gen. Peter Pace, chairman of the Joint Chiefs of Staff, has called U.S. ratification of the treaty "a top national security priority." With the military, conservative foreign policy establishment and business joining together in support of ratification, the remaining conservative voices cautioning against sacrificing sovereignty have become increasingly isolated.

The 1982 Convention on the Law of the Sea — the instrument that created the overarching governance framework for nearly three-quarters of the Earth’s surface and what lies above and beneath it — has been signed and ratified by 161 countries, but not by the United States. The convention and the 1994 agreement on its implementation have been in force for 18 years, yet the United States, a nation with over 12,000 miles of coastline and the dominant world maritime power by any measure, joins an embarrassing short list of holdouts that includes North Korea, Syria and Iran.

This is true despite the fact that a bipartisan coalition of American business, environmental and military leaders agree that it is in our national interests to formally become a state party to this lynchpin of ocean governance. Per our constitution, the Senate must give its “advice and consent” to treaties submitted by the president for its review. Of these currently in the queue, for national-security reasons, the Law of the Sea is one of the most urgent.

This is why the secretaries of Defense and State, the chairman of the Joint Chiefs of Staff, and the heads of the Navy, Coast Guard and Marine Corps all recently testified before the Senate Foreign Relations Committee that the U.S. should join. In fact, since 1994 – when President Clinton first submitted the treaty to the Senate for its consideration following the international community changing the document’s language to directly address President Ronald Reagan’s initial reservations – every president, every Marine Corps and Coast Guard commandant, and nearly all chiefs of naval operations have unequivocally supported it. Put simply, there is broad consensus from our nation’s military and political leadership that the United States should sign on.

JOHN NORTON MOORE: Now, this convention is one of the most important multilateral conventions in history. Today it is enforced for 154 countries plus the European Union. It is enforced for all permanent members of the Security Council with the exception of the United States. The U.S. was the most important and most influential nation in the world in the negotiations. And it ultimately achieved every single one of its negotiating objectives in this treaty. I wish we could say that in all of the others.

Ultimately, of course, the last ones were achieved in the renegotiation in 1994 on Part 11, seabed mining, that enabled us to achieve, and more, all of the conditions set by Ronald Reagan. Now, this was not simply an accident. The United States was extremely well organized for this negotiation. We had an 18-agency interagency task force. We had 100-member advisory board that included virtually every affected industry group and environmental group in the United States. And it is not surprising that today every single president after this has been adopted, of both parties, certainly all of our government agencies, particularly our military and our chiefs of staff and our Coast Guard, all industry groups, environmental groups and basically every affected interest group in the United States is a strong supporter of moving forward.

Now, what are some of the things that we achieved? The United States achieved an expansion of resource jurisdiction that is far greater than what we achieved in the acquisition of Alaska and the Louisiana Purchase combined, an area of resource jurisdiction larger than the entire continental United States. The United States achieved every single one of its national security objectives, including particularly transit passage through, over and under straits used for international navigation.

We achieved assured access to seabed minerals with four sites set aside for the United States with an aggregate resource value of over $1 trillion. The United States basically also received a stable rule of law and stable expectations for oil and gas and fisheries and other economic development in the oceans. And even precedentially, we achieved a breakthrough. The United States, on the counsel of the authority, was the only nation in the world given a permanent seat on the council and a veto on the council

UNCLOS provides the overarching framework governing international ocean affairs. The Convention is one of the most wide-ranging, comprehensive international Conventions and, together with its associated agreements³, covers or touches on virtually all marine activities. UNCLOS has, moreover, achieved broad acceptance from the international community. At the time of writing the Convention boasted 164 parties, comprising 163 States plus the European Union. When it is recalled that there are 'only' 155 coastal States in the world, the near-comprehensive uptake of UNCLOS is underscored.

Indeed, despite being a non-party itself, the US nonetheless accepts that key aspects of UNCLOS, such as the maritime jurisdictional and boundary delimitation provisions, are declaratory of customary international law and conducts its policy accordingly.⁴ In terms of international law and international relations, US accession to the Convention would therefore consolidate and reinforce the oceans policy and practice pursued by successive administrations of both political persuasions in the US.

The majority view of the SFRC and the opinion of every major ocean constituency group is that joining the convention is in America’s foreign policy interests. Debating the merits of internationalism versus unilateralism is a great U.S. tradition, but the irony is that the convention actually allows for an expansion of U.S. sovereignty: freedom of movement for a powerful navy; a legal tool for U.S. forces to combat scourges at sea, such as piracy, drug trafficking, and human smuggling; and a process for extending U.S. jurisdiction over a vast amount of ocean space equal to half the size of the Louisiana Purchase.

Since at least 1994, a strong base of support for accession to the Law of the Sea Convention in the United States has existed in the federal government, industry and civil society. It is likely that no other treaty has ever been so widely supported and yet failed to be put to a vote in the Senate for such a long duration. The Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations all support the treaty.[4] Additionally, both the National Commission on Oceans Policy and the Pew Oceans Commission in their recent reports strongly urged immediate action by the Senate and accession to the Convention.

Further reflecting broad bipartisan support, in a highly unusual statement in the history of U.S. treaty ratification practice, all living former Legal Advisers of the U.S. Department of State issued a joint letter on April l7, 2004 to Senators William H. Frist (then Majority Leader), Richard G. Lugar (then Chairman, Committee on Foreign Relations), and John W. Warner and Carl Levin (respectively, then Chairman and Ranking Member, Committee on Armed Services.[5] In that letter, the eight former Legal Advisers wrote:

We are unanimous in our view that it is in the best interests of the United States that the Senate, at its earliest opportunity, grant its advice and consent to United States accession to the 1982 United Nations Convention on the Law of the Sea and to United States ratification of the 1994 Implementing Agreement that modifies Part XI of the LOS Convention.

On October 7, 1994, President Clinton submitted UNCLOS and the IA to the Senate for advice and consent to accession and ratification, re- spectively. Despite widespread bi-partisan support, the concurrence of all the Federal agencies and departments with ocean interests, and support from the U.S. maritime industries (oil and gas, shipping, telecommunications, marine science, fishing) and environmental groups, the Convention and its Implementing Agreement have languished in the Senate for the past 20 years.

Rather than a "rush to judgment," it is hard to find any aspect of the Convention that has not been discussed and debated ad infinitum in the public media, in academic conferences and symposia, in legal and ocean policy literature, and in congressional hearings. It has been studied and restudied by each successive administration, and every government department and agency with a concern in the oceans supports accession. In March 2007, in testimony before the Subcommittee on Fisheries, Wildlife, and Oceans of the Natural Resources Committee of the House of Representatives, Admiral James D. Watkins and Leon E. Panetta, Co-chairmen of the Joint Ocean Commission Initiative, renewed their strong endorsement of the Convention, saying, among other things, that the failure of the United States to become a party to the Convention is "one of the most serious international ocean policy issues that remain unresolved for our nation.

The United Nations has taken a lead role in managing the world's oceans. In 1994, it produced the UN Convention on the Law of the Sea (UNCLOS), which defines maritime zones and serves as a "constitution for the sea." To date, 163 countries have joined in the Convention, with the United States being the only major maritime country that has not ratified the convention. According to the Foreign Policy Association's National Opinion Ballot Report, a large majority of respondents (79%) believe that the U.S. should end its holdout and officially ratify UNCLOS. Such a response may reflect a larger trend on the ballot, as 57% of balloters believe that issues such as fisheries management are best handled by the UN instead of local or regional governments.

The respondents' preference for an international approach extends outside the UN framework. As the global community debates how to handle the Arctic, which is now beginning to yield more mineral resources as the polar ice caps continue to melt, NOBR participants indicate that they would favor an international treaty to govern the use of Arctic resources. Ninety-five percent of respondents agree that the U.S. and other countries with sovereignty in the Arctic should develop an agreement "similar to the Antarctic Treaty," which bans mineral mining and reserves the region for peaceful uses such as research and tourism.

Support for ratification has been consistently bipartisan. Proponents include the current president, as well as his predecessors, presidents Bush and Clinton; the current and former secretaries of state, including Condoleezza Rice, Colin Powell, and Madeleine Albright; the current and former chairmen of the Joint Chiefs of Staff; the current and former commandants of the Coast Guard; major environmental groups, and many others. A relatively small number of senators have held the treaty hostage.⁷⁸ Buoyed by ideological opposition to the United Nations, a small minority of opponents have stopped it from coming to a vote, even though it will advance U.S. interests in the Arctic and around the world. These senators argue that the United States does not need to be party to a treaty to enforce the rule of law. This rationale resonates with many Americans and is popular with the Tea Party but, in this case, to the great detriment of national security.

I hope the Committee will also bear in mind that the Law of the Sea negotiations were a long-term bipartisan effort to further American interests that engaged high level attention in successive Administrations and distinguished members of both Houses of Congress. President Nixon had the vision to launch the negotiations and establish our basic long-term strategy and objectives. President Ford solidified important trends in the negotiations by endorsing fisheries legislation modeled on the emerging texts of the Convention. President Carter attempted to induce the developing countries to take a more realistic approach to deep seabed mining by endorsing unilateral legislation on the subject. President Reagan determined both to insist that our problems with the deep seabed mining regime be resolved and to embrace the provisions of the Convention regarding traditional uses of the oceans as the basis of U.S. policy. President George H.W. Bush seized the right moment to launch informal negotiations designed to resolve the problems identified by President Reagan. President Clinton’s Administration carried that effort through to a successful conclusion. And now the Administration of President George W. Bush has expressed its support for Senate approval of the Convention and the 1994 Implementing Agreement.

Moreover, the Convention had the backing of the kind of coalition that normally augurs success in Washington. There was certainly no doubt about the military’s support. A so-called “24-star” letter from the Joint Chiefs of Staff called on the Senate to approve the Convention. In addition, the Convention had the support of many high-level officials in the civilian agencies. Secretary of Homeland Security Michael Chertoff, Secretary of the Interior Dirk Kempthorne, and Secretary of Commerce Carlos Gutierrez all wrote strong letters urging the Senate to act. And, as a demonstration of high-level Administration commitment, both Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England testified in support of the Convention at a Senate hearing in September 2007. Moreover, several Reagan-era officials, including former Secretary of State George Shultz and former Ambassador Ken Adelman, argued publicly that President Reagan’s problems with the Convention had been fixed and that it was time for the United States to join. Finally, the Convention was also strongly supported by every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies, and representatives of the oil and gas, shipping, and telecommunications industries testified in favor of the Convention before the Senate Foreign Relations Committee.

In order to have a legitimate say in the dividing of the newly available Arctic resources, one approach is that the United States should ratify the United Nations Convention on the Law of the Sea as soon as possible.⁵⁶ Almost all opposition to the convention can be attributed to old-guard politics and irrational distrust of international organizations like the United Nations. According to J. D. Watkins and L. E. Panetta, “The Law of the Sea Treaty has a diverse and bipartisan group of experienced national backers, including military leaders, environmentalists, ocean industries, think tanks and political figures who recognize and support the pressing need to sign this treaty.”⁵⁷ By ratifying the treaty, the United States would not only be able to further its own goals in relation to the Arctic Scramble, but also take on a leadership role in international negotiations. Failure to do so may result in a loss of claimable Arctic territory and the resultant strategic resources.

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.

The U.S. Commission on Ocean Policy has taken a strong interest in the international implications of ocean policy since the inception of our work. Our 16 Commissioners were appointed by the President - 12 from a list of nominees submitted by the leadership of Congress - and represent a broad spectrum of ocean interests. The Oceans Act of 2000 (P.L. 106-256) specifically charged our Commission with developing recommendations on a range of ocean issues, including recommendations for a national ocean policy that "...will preserve the role of the United States as a leader in ocean and coastal activities."

With this charge in mind, the Commission took up the issue of accession to the LOS Convention at an early stage. At its second meeting in November, 2001, the Commissioners heard testimony from Members of Congress, federal agencies, trade associations, conservation organizations, the scientific community and coastal states. We heard compelling testimony from many diverse perspectives - all in support of ratification of the LOS Convention. After reviewing these statements and related information, our Commissioners unanimously passed a resolution in support of United States accession to the LOS Convention. The fact that this resolution was our Commission's first policy pronouncement speaks to the real sense of urgency and importance attached to this issue by my colleagues on the Commission.

In support of multilateral Arctic partnerships are a number of broad-based and disparate organizations and policies nonetheless unified in support of the issue, and additional support comes from consequential benefits inherent in UNCLOS accession. Overarching is National Security Presidential Directive (NSPD) 66, “Arctic Region Policy,” released in 2009. Among the directive’s policy statements is a robust admonishment for accession to UNCLOS:

Joining [the UNCLOS treaty] will serve the national security interests . . . secure U.S. sovereign rights over extensive maritime areas . . . promote U.S. interests in the environmental health of the oceans . . . give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted . . . [and] achieve international recognition and legal certainty for our extended continental shelf.¹⁹

Furthermore, NSPD 66 persuasively promotes multinational partnership in the Arctic to address the myriad issues faced in the region.²⁰ Likewise, the Department of Defense, as articulated in its 2010 Quadrennial Defense Review, strongly advocates accession to UNCLOS in order “to support cooperative engagement.”²¹ Also among the tenacious supporters of accession are the U.S. Navy, whose leadership stresses that UNCLOS will protect patrol rights in the Arctic, and a number of environmental groups who want to advocate on behalf of Arctic fauna and flora.²² In addition, the oil industry lobby representing Chevron, ExxonMobil, and ConocoPhillips asserts that oil and gas exploration cannot reasonably occur without the legal stability afforded in UNCLOS.²³ In a consequential benefit of accession, the extended U.S. continental shelf claims could add 100,000 square miles of undersea territory in the Gulf of Mexico and on the East Coast plus another 200,000 square miles in the Arctic.^{24Conley, Heather A. and Jamie Kraut. U.S. Strategic Interests in the Arctic: An Assessment of Current Challenges and New Opportunities for Cooperation . Center for Strategic and International Studies: Washington, D.C., April 27, 2010 (28p). [ More (6 quotes) ]}

Despite opposition by a few members of Congress, UNCLOS ratification has widespread support in the military, diplomatic and intelligence communities. The Departments of Defense, State and National Intelligence have consistently advocated that the Senate should ratify the treaty.⁶⁵ In fact, all of the members of the Joint Chiefs of Staff have written the Senate letters seeking the Senate’s advice and consent.⁶⁶ Moreover, in his last NSPD before leaving office, President George W. Bush explicitly sought UNCLOS’s ratification.⁶⁷ At the end of 2007, the Senate Committee on Foreign Relations voted to recommend ratification.⁶⁸ The U.S. Senate’s vote is pending.

In recent years, many of the most senior U.S. military officers have further articulated the national security benefits of the Convention. The Navy has been one of the strongest supporters of the Convention, with every serving and former Chief of Naval Operations lining up to publicly support U.S. accession.⁶¹ In 2004 when the U.S. Senate was actively considering the treaty, the Joint Chiefs of Staff, the worldwide four-star unified combatant commanders, and the Chief and Vice Chief of Naval Operations strongly supported U.S. accession to the Convention.⁶² These uniformed senior flag and general level officers provided ample testimony to the Senate concerning the broad range of national security interests the Convention directly promoted. The treaty “helps [to] assure access to the largest maneuver space on the planet—the sea—under authority of widely recognized and accepted law and not the threat of force.”⁶³ The United States benefits from the navigational regimes of innocent passage and transit passage through straits and archipelagos, the exercise of high seas freedoms in the EEZ and high seas, as well as the concept of sovereign immunity for warships and other public vessels and public aircraft.⁶⁴ Also in 2004, the Chairman of the Joint Chiefs of Staff said the Convention helps U.S. forces to “operate freely across the vast expanse of the world’s oceans under the authority of widely recognized and accepted international law.”⁶⁵ Additional testimony in support of the national security benefits of the treaty is included in the 2004 Report of the Senate Foreign Relations Committee, which voted the treaty out of committee in a bipartisan 19-0 vote.⁶⁶

MOORE: Second point -- they argue somehow this will be counter to the security and national military interests of the United States of America. Extraordinary since we won absolutely everything that the chiefs sought. They were a very important part of the effort. I traveled around the world with a representative of the Joint Chiefs and DOD in all of the negotiations. We won everything that the chiefs wanted. And you might note that the strongest proponents of this treaty from day one have been the United States military. So a group of non-law of the sea experts, non-international law experts, who do not know the issues, believe that somehow they know better than the chiefs of the United States who have signed a letter that I have in the back of the room called a rare 24-star letter. It's not just from the chairman of the chiefs. Every single one of the chiefs signed it and sent it to the Senate saying this is what we need.

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

As already noted, Donald Rumsfeld played a key role in stopping the United States and other nations’ treaty ratification efforts in the 1980s. It is a compelling point, therefore, to note that Secretary Rumsfeld’s Defense Department urged Treaty accession in 2003. On October 21, 2003, a deputy assistant secretary of defense testified that the Convention is “critical to the United States Armed Forces.”⁵³ The basis for Defense Depart- ment accession support was based in part on navigation rights deemed “critical to mili- tary operations” and “essential to the formulation and implementation of [U.S.] national security strategy.”⁵⁴ While some have contended that these and other law of the sea rights could be exercised employing the “reflection” approach, the Defense Department identified certain additional benefits that would come only with accession, includ- ing participation in international maritime fora and Convention-established entities.⁵⁵ Participation, noted the Defense Department representative, would allow the United States to “prevent the erosion of navigational rights and freedoms . . . [and work toward] international consensus proscribing the maritime trafficking of weapons of mass destruc- tion.”⁵⁶ While recommending Treaty accession, the Defense Department did identify a number of issues that it deemed worthy of Senate attention, and one of these will be noted here.

Conservative political factions are not in favor of working in cooperation with United Nations (parent organization of the International Maritime Organization (IMO) Furthermore, they do not want the United States to subject itself to international tribunals have effectively prevented U.S. accession to UNLCOS. But UNCLOS accession is supported from all the military service chiefs and the Chairmen of the Joint Chiefs, who have traditionally been highly selective with respect to treaties and how they potentially affect U.S. service members. For example, they expressed concern over the Rome Statute of the International Criminal Court (ICC) because it was believed to place U.S. personnel at risk for trial by an international tribunal. But this is not true for UNCLOS because the service chiefs believe UNCLOS will support, rather than thwart, U.S. operations.²² As the principal force behind the negotiation of UNCLOS in Montego Bay back in 1982, the treaty encompasses everything the U.S. military wants, and is not the “bogey man.”

Support for ratification has been consistently bipartisan. Proponents include the current president, as well as his predecessors, presidents Bush and Clinton; the current and former secretaries of state, including Condoleezza Rice, Colin Powell, and Madeleine Albright; the current and former chairmen of the Joint Chiefs of Staff; the current and former commandants of the Coast Guard; major environmental groups, and many others. A relatively small number of senators have held the treaty hostage.⁷⁸ Buoyed by ideological opposition to the United Nations, a small minority of opponents have stopped it from coming to a vote, even though it will advance U.S. interests in the Arctic and around the world. These senators argue that the United States does not need to be party to a treaty to enforce the rule of law. This rationale resonates with many Americans and is popular with the Tea Party but, in this case, to the great detriment of national security.

Opponents are similarly reluctant to mention the unanimous support of affected U.S. industries. To oppose the treaty on economic grounds requires opponents to say that the oil, natural gas, shipping, fishing, boat manufacturing, exporting, and telecommunications industries do not understand their own bottom lines. It requires opponents to say that this diverse set of industries is spending money and time lobbying on behalf of an outcome that will be disadvantageous to their own interests.

The vast majority of conservative Republicans would support, in prospect, a generic measure that expands the ability of American oil and natural gas companies to drill for resources in new areas, solidifies the Navy's rights to traverse the oceans, enshrines U.S. economic sovereignty over our Exclusive Economic Zone extending 200 miles off our shore, helps our ocean industries create jobs, and reduces the prospects that Russia will be successful in claiming excessive portions of the Arctic. All of these conservative-backed outcomes would result from U.S. ratification of the Law of the Sea Convention. Yet the treaty is being blocked because of ephemeral conservative concerns that boil down to a discomfort with multi-lateralism.

There are a few conservative policy makers who believe UNCLOS is an impediment to U.S. sovereignty; they do not support the U.S. joining UNCLOS.⁶² But they are in the minority.⁶³ According to the University of Virginia Center for Oceans Law and Policy, the Secretary of Defense, Commandant of the Coast Guard, Chairmen of the Joint Chiefs of Staff and numerous elected officials support the U.S. joining UNCLOS.⁶⁴ Additionally, every president since Clinton has pushed for ratification, but the treaty has not survived the Senate, most recently in 2004.⁶⁵ The ratification of UNCLOS would help the U.S. gain greater influence, sovereignty, and improve strategic vision and cooperation in the Arctic region.⁶⁶ It appears there are a minority of influential members of the Senate who do not want the U.S. subject to the jurisdiction of an international tribunal (International Law of the Sea Tribunal), which accession would require.

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.4331 and to port security, which the Convention facilitates by incorporating security requirements developed through the Inter- national Maritime Organization.³² The Convention also assures rights of navigation and overflight, including transit passage through strategic straits and archipelagic sea lanes passage,³³ as well as the immunity of warships.³⁴ The U.S. insisted on strengthening rights of navigation and overflight during the Third United Nations Conference on the Law of the Sea Conference (UNCLOS III), and in making them more objective with what appears in the 1958 Territorial Sea Convention.

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

To date, U.S. military forces have successfully protected American shipping and the homeland from sea-based attack without the benefits of the convention. Why is it imperative to join the convention now? What does the convention provide that distinguishes it from existing treaties and the customary international law upon which the United States has depended for the past five decades?

In short, the convention provides the protection of binding international law in four categories of essential navigation and overflight rights. Together, these rights ensure the strategic and operational mobility of U.S. military forces and the free flow of international commerce at sea. Joining the convention guarantees that 156 states recognize the following basic rights of U.S. military forces, commercial ships, civilian aircraft, and the foreign-flagged vessels that carry commerce vital to U.S. economic security:

• Right of Innocent Passage. The surface transit of any ship or submarine through the territorial seas of foreign nations without prior notification or permission.
• Right of Transit Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over straits used for international navigation, and the approaches to those straits.
• Right of Archipelagic Sealanes Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over all normal passage routes used for international navigation of “archipelagic waters,” such as those claimed by the Philippines and Indonesia.
• Freedom of the High Seas. The freedoms of navigation, overflight, and use of the seabed for laying undersea cables or pipes on the high seas and within the exclusive economic zone of a coastal state.

Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.³⁶ This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.³⁷ Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Commit- tee, "some coastal states contend that the navigational and over- flight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it."³⁸ if it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program³⁹ or negotiating new bilateral agreements.⁴⁰ The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.

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

Our Navy can better protect the United States and the American people if we join the Law of the Sea Convention.

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 our 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.

Innocent Passage, Transit Passage, and Archipelagic Sealanes Passage are the crown jewels of navigation and overflight. These rights are vital not just to our Navy, but also to our Army, Air Force, Marine Corps, and Coast Guard. They make it possible to move vast quantities of war materiel through the Straits of Gibraltar, Singapore, Malacca, and Hormuz and into the Arabian Gulf to Soldiers, Sailors, Airmen, and Marines in Iraq. These rights permit us to move our submarine fleet through choke points to conduct all missions. They permit the United States Air Force to conduct global missions without requirement to overfly foreign national airspace. And they ensure the uninterrupted flow of commerce to and from our shores.

The United States might react to these coastal state navigational restrictions in four possible ways.³² First, it could acquiesce in them, a reaction that would significantly restrict navigational freedoms important to the United States. Second, the United States could continue to assert, via diplomatic channels, a customary international law right to navigation, backing up its assertions with naval exercises. Although the United States has been following this practice since 1979 under its Freedom of Navigation Program, this option is expensive. It is expensive in terms of dollars, potential confrontations, and prejudice to other U.S. interests in the coastal state.³³ Furthermore, this option may not contribute to a stable legal regime, since some U.S. claims under customary international law could compete with coastal state assertions of different emerging rules of customary international law. Third, the United States could negotiate bilateral treaties to preserve U.S. navigational rights in other states' coastal zones. This option is also expensive. Small states, not interested in sailing their vessels or conducting military exercises in U.S. waters, would expect other new military, economic, or political concessions in exchange for allowing the United States to conduct military exercises or navigate in their coastal zones. Finally, the United States could accept the multilateral Law of the Sea Convention. With respect to navigation rights, this treaty provides a stable legal base from which to promote freedom of navigation rules. Its written and hard-to- change rules, though not always highly determinate, at least narrow the range of disputes over permissible and impermissible restrictions on navigation. Convention proponents have strong consequentialist arguments to support the position that the Con- vention's freedom of navigation provisions benefit the United States.

One of our most important objectives in seeking a universally ratified Law of the Sea Convention is to put a stop to the erosion of high seas freedoms in coastal areas that characterized the development of customary international law in the twentieth century. There is no reason to believe this erosion will not continue in the absence of a treaty restraint. In my opinion, the most plausible way to block the gradual erosion of high seas freedoms in the exclusive economic zone, and its eventual transformation into something much more like a territorial sea, is a widely ratified Law of the Sea Convention to which the United States is party, and with respect to which the voice and practice of the United States are prominent authoritative evidence of what the Convention means.

For operational planners, the essential question is not what we think our rights are, but what foreign governments think. We need the greatest possible influence over the perception of foreign governments regarding the source, legitimacy, and content of their obligations to respect our high seas freedoms, especially in their exclusive economic zones. We achieve that best by becoming party to the Convention. The alternatives are likely to be both less effective and more costly.

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) ] 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.

Joining this Convention would codify several important recognized rights of navigation into a binding legal foundation. It supports our national security interests by defining the rights of U.S. military and civilian vessels as they meet our mission requirements, reaffirms the sovereign immunity of our warships and other vessels owned by the United States and used for government noncommercial service, and preserves our right to conduct military activities and operations in exclusive economic zones. As the defense strategy places greater demands on our ability to mobilize forces, guaranteed access to shipping and overflight lanes becomes increasingly important to support our forces overseas.

Currently, the United States relies upon customary international law as the primary legal basis to secure global freedom of access. However, as emerging powers around the world grow and modernize, states may seek to redefine or reinterpret customary international law in ways that directly conflict with our interests, including freedom of navigation and overflight, potentially challenging our global mobility needs. This Convention represents the best guarantee against erosion of essential navigation and overflight freedoms that we take for granted through reliance on customary international law. Accession will give the United States leverage to counter efforts by other nations seeking to reshape current internationally accepted rules we depend on for transporting cargo and passengers.

Security. As the world’s foremost maritime power, our security interests are intrinsically linked to freedom of navigation. We have more to gain from legal certainty and public order in the world’s oceans than any other country. Our forces are deployed throughout the world, and we are engaged in combat operations in Central and Southwest Asia. The U.S. Armed Forces rely on the navigational rights and freedoms reflected in the Convention for worldwide access to get to the fight, sustain our forces during the fight, and return home safely, without permission from other countries.

In this regard, the Convention secures the rights we need for U.S. military ships and the commercial ships that support our forces to meet national security requirements in four ways:

• by limiting coastal States’ territorial seas -- within which they exercise the most sovereignty -- to 12 nautical miles;
• by affording our military and commercial vessels and aircraft necessary passage rights through other countries’ territorial seas and archipelagoes, as well as through straits used for international navigation (such as the critical right of submarines to transit submerged through such straits);
• by setting forth maximum navigational rights and freedoms for our vessels and aircraft in the exclusive economic zones of other countries and in the high seas; and
• by affirming the authority of U.S. warships and government ships to board stateless vessels on the high seas, which is a critically important element of maritime security operations, counter-narcotic operations, and anti-proliferation efforts, including the Proliferation Security Initiative.

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 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.

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

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)

National security interests were paramount in crafting the final text of the Convention, so it is unsurprising the treaty framework promotes regional stability, optimizes maritime strategic mobility, and yields other national security benefits. At home, the Convention supports strong flag and port state security measures and ensures the exercise of sovereignty in the territorial sea. The Convention also provides the most effective means to exercise U.S. leadership to shape the management and development of law of the sea. Abroad, the Convention facilitates combined operations with coalition partners through subscription to a common rule set, such as the Proliferation Security Initiative (PSI). The suggestion by some critics that the Convention represents a progressive confrontation of U.S. national security interests has turned historical analysis on its head, as the Convention in fact secured the essential oceans interests of the maritime powers. Senator Richard Lugar called the criticism of these “amateur admirals”¹⁵ factually and historically incorrect, and focusing on spurious concerns over vague losses of U.S. sovereignty.¹⁶ During the negotiations, the United States closely coordinated with the other major maritime powers— the Soviet Union, Japan, the United Kingdom and France—to accommodate high seas freedoms.¹⁷ These states, and particularly the superpowers, demonstrated a repeated willingness to go against their usual clients and allies in favor of positions supported by the maritime powers. The politics of the negotiations reflected national interest as a function of geography, rather than superpower politics or North-South differences. The cornerstone of this coordination was achievement of the provisions protecting freedom of navigation. In the end, essentially all of the maritime security benefits of the Convention are rooted in preserving maximum freedom of the seas.

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.

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.

Moreover, numerous states question the United States’ very right to enforce navigational freedoms conferred by the Convention when it is not party to it. It is likely that U.S. accession would decrease the number of state claims inconsistent with international law and also decrease the number of freedom of navigation challenges the Navy would have to conduct. 

The global demands on the Navy and Coast Guard come at a time when the size of the nation’s Fleets has shrunk to unprecedented low levels. As fewer and fewer U.S. ships are available to support U.S. and coalition interests worldwide, it is more imperative than ever that these ships be able to exercise the rights of innocent passage, transit passage, and archipelagic sea lanes passage without asking prior permission or providing prior notification to coastal states. Equally important is the right of warships to operate freely and conduct military activities in the exclusive economic zones of all nations. These are rights that are being increasingly challenged by coastal nations.

[MYTH]: U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).¹⁵

^{Specifically, I point out the counternarcotics area. There are excessive territorial sea claims that cause significant operational impediments for us on a daily basis. Our status as a nonparty makes it difficult for us to achieve effective operational agreements with those nations that have claims of territorial seas of up to two hundred nautical miles.}

^{Myth: Freedom of navigation is only challenged from "[t]he Russian navy [that] is rusting in port [and] China has yet to develop a blue water capability...." (14)237} As long as the United States remains a nonparty, it will not be able to rely on the protections provided by UNCLOS III.

Next, Rear Admiral Frederick J. Kenney presented the importance of UNCLOS to the U.S. Coast Guard. He emphasized that on a daily basis the Coast Guard’s operational officers rely on the freedom of navigation that UNCLOS attempts to preserve. The Coast Guard is the only U.S. surface presence in many parts of the world, and this widespread presence allows the Coast Guard to respond quickly to international incidents. For example, a Coast Guard cutter was the first U.S. presence in Georgia after Russian troops entered the country in 2008.

Because the United States is not a party to the Convention, however, Rear Admiral Kenney explained that the United States cannot use its dispute resolution mechanisms for resolving conflicting claims to ocean territory. In one important dispute, the United States and Canada disagree about whether Passamaquoddy Bay is part of Canada’s internal waters and thus whether Canada can block passage of commercial shipping through the bay to East Port, Maine. If plans for a liquid natural gas (LNG) terminal in East Port move forward, Rear Admiral Kenney predicts this dispute will intensify without any clear means of resolution.

Rear Admiral Kenney drew on his personal experience as a negotiator to discuss the difficulties the United States faces in negotiating other treaties because it is not a party to UNCLOS. As the primary regulator of U.S. shipping, the Coast Guard participates in treaty negotiations with the International Maritime Organization (IMO). However, the IMO’s primary treaties are inextricably linked to UNCLOS, and Rear Admiral Kenney opined that the United States loses credibility in IMO negotiations because it is not a party to UNCLOS. Further, Rear Admiral Kenney suggested that bilateral agreements regarding drug enforcement would be easier to negotiate if the United States were a member of UNCLOS because they would be able to incorporate UNCLOS’ enforcement mechanisms.

Coastal states can also be expected to want more control of their off-shore waters and airspace for domestic security reasons.⁶⁷ Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress . Congressional Research Service: Washington, D.C., April 11, 2014 (59p). [ More (4 quotes) ]

Schachte, William L. "Statement of Rear Admiral William L. Schachte: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Armed Services Committee, April 8, 2004. [ More (4 quotes) ]

Taft, William H. "Statement of William H. Taft IV (April 8, 2004): Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the U.S. Senate Committee on Armed Services, April 8, 2004. [ More (11 quotes) ]

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) ]

Noyes, John. "U.S. Policy and the United Nations Convention on the Law of the Sea." George Washington International Law Review. Vol. 39. (2007): 621-638. [ More (4 quotes) ]