The National Interest and the Law of the Sea

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U.S. should join UNCLOS to protect four critical rights that ensure freedom of navigation

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.
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Borgerson, Scott G. The National Interest and the Law of the Sea . Council on Foreign Relations: Washington, D.C., May 2009 (82p). [ More (22 quotes) ]
Current U.S. national maritime strategy recognizes need to focus on a cooperative approach to security
In 2008, the National Defense Strategy signed by Secretary of Defense Robert M. Gates reinforced the main tenets of the Coopera- tive Strategy for 21st Century Seapower, issued in 2007 by the chief of naval operations and the commandants of the Marine Corps and the Coast Guard. 18 Both strategies emphasize that the prevention of war is the best way to achieve U.S. national security, and both highlight the fact that a strengthened system of alliances and partnerships is an essential component of building stability, collective security, and trust. The Cooperative Strategy for 21st Century Seapower is aptly named and uniquely relevant when considering the question of whether to join the convention. Its main points are:
  • Preventing wars is as important as winning wars.
  • U.S. maritime power comprises six core capabilities that emphasize preventing war and building partnerships: deterrence, sea control, power projection, maritime security, humanitarian assistance, and disaster response.
  • Expanded cooperative relationships with other nations will contrib- ute to the security and stability of the maritime domain to the benefit of all.
  • Trust and confidence cannot be surged; they must be built over time while mutual understanding and respect are promoted.
  • Global maritime partnerships provide a cooperative approach to maritime security, promoting the rule of law by countering piracy, terrorism, weapons proliferation, drug trafficking, and other illicit activities.
This strategy predicts that “increased competition for resources, coupled with scarcity, may encourage nations to exert wider claims of sovereignty over greater expanses of ocean, waterways, and natural resources—potentially resulting in conflict.”
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Borgerson, Scott G. The National Interest and the Law of the Sea . Council on Foreign Relations: Washington, D.C., May 2009 (82p). [ More (22 quotes) ]

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