Eight National Security Myths: United Nations Convention on the Law of the Sea

CITATIONS
U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]

Quicktabs: Citation

UNCLOS codifies essential rights and freedoms U.S. forces need to operate -- our non-party status is putting them at risk

The Convention codifies navigation rights and freedoms essential for the global mobility of our armed forces and the sustainment of our combat troops. Benefits include:

  • a 12 nautical mile limit to territorial seas
  • innocent passage through territorial seas
  • archipelagic sea lanes passage though island nations like Indonesia
  • laying and maintaining submarine cables for communication warship right of approach and visit
  • sovereign immunity of warships and public vessels
  • transit passage in international straits (and their approaches)
  • high seas freedoms in exclusive economic zones (EEZs)

The last two are the most important. Transit passage gives us freedom of movement above, on, and below the surface in critical chokepoints such as the Straits of Singapore and Malacca, Hormuz, and Gibraltar, and the Bab el Mandeb. Exercising high seas freedoms in foreign EEZs includes conducting military activities.

Our non-party status is hurting us. It denies us a seat at the table when the 155 parties to the Convention interpret (or try to amend) those rights and freedoms; it denies us use of an important enforcement tool against coastal state encroachment (binding dispute resolution); it hinders us in our efforts to recruit more countries to the Proliferation Security Initiative (PSI); it creates a seam between us and our coalition partners; it prevents us from gaining legal certainty for our extended continental shelf in the Arctic (and elsewhere); and it denies U.S. companies access to deep seabed mining sites.

Relying on customary international law as the basis for those rights and freedoms is an unwise and unnecessary risk. Our Soldiers, Sailors, Marines, Airmen, and Coast Guardsmen put their lives on the line, every day, to preserve the rights and freedoms codified in the Convention; they deserve to be on the firmest legal ground possible as they go into harm’s way; they deserve the legal certainty that accrues from treaty based rights.

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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]
Careful analysis of treaty text shows how U.S. negotiators were able to eliminate the possibility that U.S. forces would be subject to international courts
Military officers serving as members on the United States delegation that negotiated the Convention ensured that it contained a military activities exemption from dispute resolution, which is ironclad. The Convention they helped craft permits a maritime nation, like the United States, to use compulsory dispute resolution as a sword against foreign coastal state encroachment while simultaneously shielding military activities from review. Given the central importance of this issue, it is important to review the compulsory dispute resolution procedures contained in Part XV, Section 2 of the Convention, and explain, in detail, how Article 298 of the Law of the Sea Convention, under its express terms, will permit the United States to completely exempt its military activities from dispute resolution, and prevent any opposing State or court or tribunal from reviewing our determination that an activity is an exempted military activity. Part XV, Section 2 of the Convention is titled, “Compulsory Procedures Entailing Binding Decisions.” Section 2 is comprised of eleven Articles (286 – 296), which contain the compulsory dispute resolution procedures that some are concerned could be used to effect a review of our military activities. Section 2 begins with Article 286, which provides that, except as provided in Section 3 of the Part XV, “any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to Section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.” Article 287 then provides the choice of procedure election. The President has asked the Senate to reject the first two choices available, the International Court of Justice and the International Tribunal for the Law of the Sea, and instead choose arbitration (what are referred to formally as arbitral tribunals). Now, let’s move on to Section 3, which is titled, “Section 3. Limitations and Exceptions to Applicability of Section 2.” In Section 3 we find Article 298; and in Article 298, subparagraph 1, it states in pertinent part:
1. When signing, ratifying, or acceding to this Convention or at any time thereafter, a State may...declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes...”
There then follows three categories of disputes: Maritime boundary disputes, disputes involving military activities, and disputes involving matters before the United Nations Security Council. The president has asked the Senate to exempt all three categories. The key language from Article 298.1 is: “A State may declare that it ... does not accept any one or more of the procedures provided for in section 2.” It is the right of the State, and solely the State, to completely and preemptively reject all of the dispute resolution procedures provided for in Section 2. It is those very procedures that the opposing State or international court or tribunal would have to rely upon to try to assert authority over us. It simply does not get any better than that---not in private contract law nor in treaty law. What this Convention makes clear is that a State party can completely reject all the dispute resolution procedures—on its own terms—for disputes involving maritime boundaries, military activities, and matters before the Security Council. There is simply no process or procedure whereby our determination can be subject to review, because we have already preemptively rejected all the procedures provided for in Section 2, including article 287 (choice of forum), article 288 (the right of a court or tribunal to determine its own jurisdiction), article 290 (provisional measures) and article 292 (prompt release). All permanent members of the United Nations Security Council (except the United States) and numerous other countries have taken the military activities exemption. They, like us, would never accept a court or tribunal acting ultra vires---beyond the limits of the Convention itself.
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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]
Closed hearings before the Senate Armed Services and Classified Intelligence committees confirmed that UNCLOS will not jeopardize intelligence gathering

U.S. intelligence collection activities at sea are not constrained by the Convention. This matter was fully reviewed at closed hearings before the SSCI and SASC in 2004. At the unclassified level we can comment that those Committees concluded, after receiving testimony from DoD, CIA, and DoS, that the Convention does not affect US intelligence collection activities. Those agencies confirmed that testimony in recent correspondence to the SFRC. With regard to innocent passage, the United States already obligates itself to abide by articles 19 and 20 of the Convention, and we are already formally bound to the same obligations in the 1958 Territorial Sea Convention.

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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]
Conventions's provisions on 'peaceful purposes' cannot be used to constrain lawful military activities

The negotiating history on the Convention is clear on this point. In 1976, Ecuador attempted to turn the “peaceful purposes” provisions into an arms control obligation. They got nowhere. In response to the argument by Ecuador in 1976, the U.S. replied:

“The term ‘peaceful purposes’ did not, of course, preclude military activities generally. The United States has consistently held that the conduct of military activities for peaceful purposes was in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement.”

See 66-68th plenary sessions in 1976. In 1985, the Secretary General of the United Nations reported that, “military activities which are consistent with the principles of international law embodied in the Charter of the United Nations, in particular Article 2, paragraph 4, and Article 52, are not prohibited by the Convention on the Law of the Sea.

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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]
Counterfactual claims are invalid - UNCLOS would not constrain U.S. capacity for self-defense
Myth #8: Had the United States been subject to the Law of the Sea Treaty, President Kennedy could not have quarantined Cuba with the U.S. Navy, President Ford could not have used the Navy to rescue the Mayaguez, and President Reagan could not have sent a Navy carrier force to defy Qaddafi of Libya in the Gulf. This is completely untrue. All the above operations were conducted in accordance with international law.
  • President Kennedy established a quarantine around Cuba under the authorities of the UN Charter (Article 51 on self-defense and Article 52 on regional security arrangements) and the Rio Treaty (which established the Organization of American States (OAS)). On October 23, 1962, OAS voted to approve a U.S.-sponsored quarantine of Cuba.
  • President Ford’s use of military force to rescue the Mayaguez and its crew was a lawful use of force in self defense under Article 51 of the UN Charter.
  • President Reagan deployed an aircraft carrier task force into the Gulf of Sidra to challenge Libya’s unlawful claim that the Gulf was Libyan internal waters. During U.S. freedom of navigation operations in the Gulf, United States Navy aircraft engaged Libyan aircraft in self-defense in accordance with Article 51 of the UN Charter.
    • The Convention does not in any manner whatsoever restrict, condition or infringe upon our inherent right of self-defense as reflected in Article 51 of the UN Charter. Nor does it affect our rights under the law of armed conflict. The Law of the Sea Convention does not constrain or limit the President's options to defend our country; it enhances them by codifying navigation rights and freedoms that are essential for the global mobility of our armed forces and the sustainment of our combat troops.
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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]