The Law of the Sea Convention: A National Security Success -- Global Strategic Mobility through the Rule of Law
Quicktabs: Citation
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.
Freedom of navigation also underpins global economic prosperity. The oceans, wrote Professors McDougal and Burke, were a “spatial extension resource, principally useful as a domain for movement.”20 With the increasing trend in global trade, exercising the freedom to navigate on the seas is becoming even more important. This trend is accelerating in an era of globalization. “Shipping lanes are getting busier,” reports the Wall Street Journal, “not just from Asia to North America and Europe, but within Asia.”21 The initial rise of the globalized economy, which began in mercantilist Europe, can be attributed in large part to unimpeded ocean transit. Four hundred years ago, the legal scholar Hugo Grotius cogently set forth the commercial doctrine that fueled international trade. “For do not the ocean,” Grotius wrote, “navigable in every direction with which God has encompassed all the earth, and the regular and occasional winds which blow now from one quarter and now from another, offer sufficient proof that Nature has given to all peoples a right of access to all other peoples?”22 The model of freedom of the seas also is regarded as the logical analogue for developing the legal regime for outer space.23
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
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
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?
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
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
Political and legal activity publicized by international civil society and transnational organizations may be used to bring pressure against a potential adversary. China seeks to leverage international organizations and willing national governments in its lawfare campaign. The Department of Defense reports, for example, that the assertion of claims and rights in the maritime domain could enhance the perceived legitimacy of coercive Chinese operations at sea.79 From the Chinese perspective, the global nature of international politics and the proliferation of international laws and regu- lations serve to make this form of legal warfare more effective than in the past.80
In terms of maritime strategy, China’s legal warfare is a resourceful anti-access or sea denial strategy. Sea denial is employed by inferior continental navies to deny maritime powers the ability to exercise command of the sea and thereby limit their influence over events on land.81 Employment of submarine mines is an example of a traditional sea denial strategy. China seeks to create “strategic depth” to the Chinese mainland by denying access of its EEZ to warships and aircraft of the United States, Japan and other coun- tries in the region. The strategy of the People’s Liberation Army (Navy) (PLA(N)) set forth in a recent Chinese defense white paper is directed at the “gradual extension of strategic depth for offshore defensive operations” and for “enhancing its capabilities in inte- grated maritime operations and nuclear counterattacks.”82
Similarly, Iran has adopted a combination of overt threats and lawfare to pursue its anti-access or sea denial strategy throughout the Persian Gulf and the approaches to the Straits of Hormuz.86 Tehran’s strategy also focuses on attempting to market to the world community erroneous territorial and jurisdictional claims that are inconsistent with the rules of the Convention. These claims include a series of excessive straight baselines which purport to convert international water into Iranian territorial seas,87 the assertion of Iranian state security powers in the contiguous zone,88 a requirement for foreign warships and nuclear-powered vessels to obtain advance consent for conducting innocent passage,89 and a prohibition on “foreign military activities and practices” in the Iranian EEZ.90 One Iranian analyst has gone even further, suggesting the entire Persian Gulf constitutes a closed political region that permits “innocent passage” of vessels throughout the Gulf, but only so long as they are not conducting “coercive measures” against Iran aimed at undermining Tehran’s sovereignty.91