Adversaries using U.S. absence from UNCLOS to modify martime law in ways adverse to U.S. interests

UNCLOS also guarantees the right to operate and conduct exercises in international waters beyond the territorial sea. Prior to the convention, many coastal states were insisting on the right to exercise complete sovereignty out to as far as 200 miles or more from their land territory. While the convention’s provisions establish the right of coastal states to claim a 200-nm exclusive economic zone (EEZ), they may only exercise sovereign rights over economic activities, such as fishing, the exploration for and production of oil and gas from under the seabed, and the construction of artificial islands. Under the convention, coastal states may not restrict freedom of navigation within the EEZ, including military training exercises, law enforcement activities, and overflight.

These provisions are of great benefit to our national security and global mobility interests. In addition to the global reach of the U.S. Navy and Air Force, Coast Guard units patrol the Persian Gulf, the Caribbean Sea, the eastern Pacific Ocean, and other vital maritime areas. There is a disturbing movement among some coastal states to attempt to transform their EEZs into the equivalent of a territorial sea, in which they may limit critical navigational freedoms. For example, the U.S. Navy is concerned about apparent government attempts in China and Iran to assert excessive control over foreign operations within the exclusive economic zone. The United States must not sit on the sidelines while the international community is working out the nuances of how UNCLOS is to be interpreted and applied.

Protecting American Interests: Because we are the main global maritime power, our interests demand that we consider the global effect of the Convention’s rules and their interpretations; there are a number of issues that are of greater concern to us than to most other countries. It is not prudent for us to sit idly by on the sidelines and rely on others to protect our global interests from the inside. For example, despite our close security relationship with most of its member states, there are disturbing signs that the European Community may try to shift the Convention’s balance in a sharply coastal direction in derogation of the freedom of navigation beyond the territorial sea and free transit of international straits.

The real threat to U.S. oceans interests is not the United Nations, but the relentless campaign by nongovernmental organizations (NGOs) such as Greenpeace in conjunction with certain coastal countries, including close U.S. allies such as Canada and Australia, to unilaterally impose maritime rules to restrict international shipping on the oceans and aircraft overflight of the seas for purported environmental reasons. For example, a group of Western European states pushed for a ban on single-hull tankers from a vast area of international waters in the Eastern Atlantic, and in 2006 the European Commission suggested in a report that the navigational freedoms in the Law of the Sea Convention should be revised to expand coastal state jurisdiction over transiting vessels.

John Bolton, former U.S. ambassador to the United Nations, describes this type of partnership between NGOs and some like-minded governments as norming ... the idea that the U.S. should base its decisions on some kind of international consensus, rather than making its decisions as a constitutional democracy. He adds, It is a way in which the Europeans and their left-wing friends here and elsewhere try and constrain U.S. sovereignty. The rules emerging from this process weaken the navigational freedoms the United States relies on to ensure submarines can transit through the world's choke points and ships serving as sea bases in coastal waters can launch military operations.

Similarly, less friendly countries such as China, Iran, and North Korea have sought to impose control over the ocean out to 200 miles off their coastlines by establishing security zones. Both types of proposed coastal-state regulations place at risk U.S. economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing coastal states at their whim to deny use of the global commons. These proposed restrictions by coastal states attempt to diminish or impair the right of freedom of navigation enjoyed by mariners for two millennia.

All of the countries mentioned above already belong to or have signed the convention, but are trying to change it through reinterpreting its terms. China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high-seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law. By declining to become a member of the treaty, the United States has so far ceded the opportunity to influence and shape international norms, thereby yielding to states trying to popularize their restrictive approach to navigational rights.

South Carolina Sen. Jim DeMint, when leading the opposition to the treaty as it was being debated in 2007, said We know from international groups like the U.N. that many signers of these agreements do not act in the best interest of the United States or the world. He is correct, of course, but the United States' failure to ratify only empowers these states to set maritime rules without a U.S. seat at the table. DeMint's argument is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one's political opponents have already staked out objectionable positions.