U.S. ratification of UNCLOS best way to preserve freedom of navigation rights
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
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
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.
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 stated"Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ], “I fully support the Convention because it preserves our navigational freedoms, provides the operational maneuver space for combat and other operations for our warships and aircraft, and enhances our own maritime interests.”165"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.
The real question is: What are the additional rights and opportunities that we would enjoy as a party to the Convention? In this connection, we might ask ourselves: What is it that we want other countries to do and not do?
The answer has long been quite simple. We want maximum freedom to navigate and operate off foreign coasts without interference.
We want that freedom for security purposes. If we mean to deter and confront threats to our security in the far corners of the globe, then we need to be able to get there and to operate there. The precise nature of the threats may change. But so long as our interests demand that we operate far from our shores, we want to minimize the cost and uncertainty of getting there and operating there.
We also want that freedom for economic purposes. Our economy is dependent on international trade. Much of that trade moves by sea. Our trading partners may change, but so long as our interests demand that we move raw materials and products to and from the far corners of the globe, we want to minimize the cost and uncertainty of the trip for any ship that carries our trade. We want security of supply and the lowest possible cost for delivering both our imports and our exports. And many sectors of our economy are increasingly dependent on the use of undersea telecommunications cables and accordingly on the freedom to lay and maintain them throughout the world.
UNCLOS promotes the United States' freedom of navigation rights in at least three ways.39 First, the Convention limits coastal States' territorial seas to twelve nautical miles.40 Second, UNCLOS affords innocent passage of ships and aircraft through other countries' territorial seas and archipelagoes, as well as through straits used for international navigation.41 Finally, the Convention sets forth maximum navigational rights and freedoms for ships and aircraft in exclusive economic zones.42 In regards to the United States' non-party status, proponents of UNCLOS argue that while these rights may exist in customary law, joining the Convention would put these provisions on firmer legal footing, as rights embodied in a treaty are more fixed than those in customary law.43 "The United States, the Law of the Sea Convention, and Freedom of Navigation." Suffolk Transnational Law Review. Vol. 29. (2005-2006): 1-24. [ More (4 quotes) ]
Another very important step for the U.S. Government, to better ensure the freedom of navigation rights it now exercises, is to formally ratify the UNCLOS treaty. This step is not just to return to equal footing with other members on moral, diplomatic, and legal grounds in order to better support the rules-based- order that the United States government espouses, but also to be able to directly guide and protect U.S. interests in international fora and on the seas.437 The United States signed UNCLOS in 1994 after successfully negotiating an amendment to the document to correct earlier concerns by the industrialized states, but has not formally ratified it through the Senate. The most important UNCLOS provisions, like mari- time jurisdictions and right-of-passage, are in accord with U.S. policy so that U.S. domestic law generally adheres to UNCLOS statutes, as it also does with customary international law.438 The Department of State and DoD both support ratification to give the United States “greater credibility in invoking the convention’s rules and a greater ability to enforce them.”439 This treaty has come before the Senate several times, as recently as 2012, only to be tabled despite bipartisan support, mainly due to economic concerns with Part XI stipulations that cover the deep seabed.440 A direct American voice in the Law of the Sea Treaty debates could advocate for freedom of navigation and other U.S. interests as international law inevitably evolves, in order to counter the historic trend to circumscribe rights on the high seas by reducing its openness and limiting areas of operations. Foreign military navigation rights through an EEZ are a prime example of such restrictions with 26 countries supporting China’s and Vietnam’s restrictive positions, including major maritime states like India and Brazil.441 The Senate needs to ratify this treaty to allow the United States to defend actively its existing maritime legal interests and rights.
The Convention preserves key rights of navigation and overflight. According to Deputy Secretary of Defense John D. Negroponte, the Convention provides for a “legal framework . . . [which] is essential to the mission of the Department of Defense, and the Department of Homeland Security . . . .”147 The Convention grants American ships the right of innocent passage, allowing ships transit through the territorial seas of foreign countries without having to provide advance notice or request permission.
Moreover, the Convention establishes the right of transit passage through international straits such as the Straits of Singapore and Malacca or the Strait of Gibraltar. This right, which is absolutely critical to U.S. national security, may not be suspended, hampered, or infringed upon by coastal States.148 Also, the Convention creates the Archipelagic sea lanes passage that allows transit through routes in archipelagic states, such as Indonesia.149 Additionally, the provisions creating EEZ give the American military “the ability to position, patrol, and operate forces freely in, below, and above those littoral waters.”150
Finally, the Convention secures the right of American warships to operate on the high seas, “which is a critically important element of maritime security operations, counter-narcotic operations, and anti- proliferation efforts.”151 The Convention’s navigational rights led to its support by all branches of the military: Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, all of the Combatant Commanders, and the Commandant of the Coast Guard.152
First, there is a risk that important provisions could be weakened by amendment, beginning in November 2004, when the treaty is open for amendment for the first time. Currently, for example, the Convention prohibits coastal states from denying transit rights to a vessel based upon its means of propulsion. Some states, however, may propose to amend this provision to allow exclusion of nuclear-powered vessels. Under the Convention, no amendment may be adopted unless the parties agree by consensus (or, if every effort to reach consensus failed, more than two-thirds of the parties present agree both on certain procedural matters and on the proposed amendment). As a party, the United States would have a much greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.
Second, by staying outside the Convention, the United States increases the risk of backsliding by nations that have put aside excessive maritime claims from years past. Pressures from coastal states to expand their maritime jurisdiction will not disappear in the years ahead—indeed such pressures will likely grow. Incremental unraveling of many gains under the Convention is more likely if the world’s leading maritime power remains a non-party.
Naval expeditionary forces are also often required to demonstrate naval presence. A significant percentage of naval forces are forward deployed continuously. Such deploy- ments are designed to underwrite regional stability by demonstrating U.S. commitment to allies and friends and promote joint and combined training among friendly forces. They also gain U.S. familiarity with overseas operating environments and provide initial capabilities for timely response to crisis. It is likely that in the years ahead, our naval21 activities will occur more and more in the littoral regions of the world.
The importance of overseas presence was demonstrated in October 1994, when Iraqi Republican Guard divisions began significant movements towards the border with Kuwait. Forward deployed U.S. naval expeditionary forces, centered around the George Washington Battle Group, sortied from the Mediterranean and entered the Red Sea en route to the Persian Gulf less than 2 days after the request for additional forces was made by the Commander in Chief, U.S. Central Command. Additionally, five maritime prepositioned ships at Diego Garcia and U.S. Army ships located in the Western Pacific22 and Indian Ocean proceeded to the gulf as well.
Here again, the Convention helps these naval expeditionary forces achieve impor- tant objectives. In addition to these provisions on passage, the Convention strengthens our ability to operate in these forward areas by providing agreed rules on delimitation of23 24 maritime zones, by preserving high seas freedoms of navigation and overflight, including25 within the exclusive economic zone of coastal states, and by recognizing the special nature of military ships and aircraft in reaffirming the doctrine of sovereign26 immunity.