U.S. ratification of UNCLOS best way to preserve freedom of navigation rights

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

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

Since UNCLOS would not require any change in US maritime policy, some have argued that there is, therefore, no appreciable benefit to joining the Convention. On the contrary, UNCLOS would equip the US with certain diplomatic tools that would otherwise be unavailable.¹⁷⁸ Proponents concede, however, that operationally nothing would change in terms of US Naval procedure.¹⁷⁹ Nevertheless, it remains difficult to deny that UNCLOS would provide measurable benefits towards the US Navy's ability to achieve its maritime objectives.¹⁸⁰

For example, at one point, the Libyans had a very restrictive interpretation of freedom of the seas as it applied in the Gulf of Libya.¹⁸¹ During this time the United States pursued a policy where it would deliberately sail out into waters, considered by the Libyans, as waters in which they possessed a greater degree of jurisdiction than the United States recognized.¹⁸² Such policies involved a considerable amount of risk placed on both the forces undertaking the exercises in question, and on aggravating an already delicate diplomatic situation. Therefore, although the US will always exercise its navigational rights, the tools available within the UNCLOS framework reduce the level of risk inherent in the continual exercise maritime power in order to maintain freedom of navigation.¹⁸³ Another example of the diplomacy enhancing features UNCLOS is illustrated through China, a UNCLOS State-party, who has drawn widespread criticism for its exaggerated jurisdictional claims with respect to the South China Sea, way beyond that of what is legally afforded to it under UNCLOS.¹⁸⁴ However, as it stands today, the United States is placed in quite the diplomatic quagmire, attempting to deter Chinese derogation from UNCLOS principles that itself has failed to formally agree to. Indeed this, along with other similar endeavors have consistently been undermined due to the tenuous diplomatic position of insisting compliance with a legal regime which the US itself is not even a party.¹⁸⁵

These important provisions for navigational freedom are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth, and for lessening the risks of conflict involving efforts to assert jurisdiction over warships and other vessels entitled to sovereign im- munity. For “zone-locked” states, the absence of these navigational freedoms would mean losing access to the oceans as though the state were land- locked. Indeed, without the clear legal recognition of these fundaments of navigational freedom, UNCLOS would not have been possible. Sadly, however, the international community must be diligent in combating the challenges to navigational freedom that still exist. These include:

• Aberrant and vague “area” claims such as the old “Libyan Line of Death,” the Chilean “Mar Presencial,” China’s “nine-dashed-line” and North Korea’s 50-mile security zone claim;
• Excessive straight baseline claims;
• Excessive claims concerning innocent passage in the territorial sea; particularly claims concerning consent or notification for warships; claims which have never been accepted as part of oceans law and which have been jointly rebutted by the United States and Russia in the Jackson Hole Statement of September 23, 1989;
• llegal claims asserting ship construction or operation standards for transit through the territorial sea or the economic zone which have not previously been adopted through the IMO mechanism; and
• Claims limiting full high seas navigational freedoms in the exclusive economic zone.

For the most part aberrant and vague area claims and claims beyond permissible limits for the territorial sea and economic zone seem to be slowly re- ceding as the Convention takes greater hold each and every year. The more concerning problems for the future likely relate to the “character” of each of these zonal areas in UNCLOS. We must not permit gradual encroachments to roll back the core UNCLOS compromise of extended coastal state resource rights in return for full navigational freedom in the EEZ and straits transit rights through, over, and under straits used for international navigation.

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.