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In short, although an INCSEA agreement could, in theory, reduce the possibility of miscalculation during un-alerted sea encounters between U.S. and Chinese naval and air forces, there are many reasons that the United States should not pursue such an arrangement. First, unlike the Soviet Navy, the PLA Navy is not a "blue water" navy with global reach and responsibilities. Elevating the PLA Navy to such a stature would not be in the best interests of the United States. Second, the United States and the Soviet Union shared a common interest in freedom of navigation and access to the world's oceans. U.S. and Chinese interpretations of the law of the sea are diametrically opposed and cannot be reconciled. Third, INCSEA is a navy-to-navy agreement. However, the bulk of PRC harassment and aggressive behavior against U.S. ships is conducted by PRC non-military law enforcement agencies and civilian proxies (e.g., small cargo ships and fishing trawlers). An INCSEA agreement would not apply to these vessels and aircraft. Fourth, INCSEA is a Cold War instrument. Defining the U.S.-China relationship in such terms would be counter-productive for both nations. Fifth, based on its activities in the near seas over the past several decades, China can hardly be characterized as a responsible state actor. Its actions in the South China Sea, in particular, are inconsistent with the spirit and intent of INCSEA and reflect a series of broken promises, intimidation, and aggressive behavior towards its neighbors. Finally, unlike 1972, the International Regulations for Preventing Collisions at Sea (COLREGS) and other international and regional arrangements provide internationally recognized and accepted measures that can be used to prevent incidents at sea." New measures are unnecessary.
As we have testified elsewhere, the most compelling reasons that support U.S. adherence to the Convention are rooted in restoring U.S. oceans leadership, protecting national interests and enhancing U.S. foreign policy. For example, if the convention is ratified, the United States will be in a stronger position to respond to illegal oceans claims such as the harassment of the USNS Bowditch survey vessel by the People's Republic of China (PRC). The United States will also be able to advance more rapidly with offshore oil and gas development beyond 200 nautical miles (approximately 15 percent of our continental shelf), require U.S. approval for the transfer of seabed revenues and reclaim the prime deep seabed mining sites it has abandoned. Further, adhering to the convention will finally give the United States an opportunity to officially declare its views as to the correct operation of convention provisions. This will end over a decade of self-imposed silence despite efforts by extremist opponents to roll back the gains achieved in the convention.
The critics also show little understanding of the realities of asserting the rule of law in the world's oceans. They seemingly contend that the United States can protect its interests by shooting its way around the oceans rather than developing a stable and favorable legal regime, defensible with force if necessary, that provides a legal basis for naval and air operations. The United States simply cannot shoot its way to acceptable resolutions of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies. Nor is it realistic to ignore the effects of law and international agreements in our interactions with others. It is hubris to believe that the United States can disregard the law without consequences, as it creates scenarios where other nations follow suit, thus compromising interests on both sides. Ironically, at a time when the president of the United States is urging others toward the rule of law as a foreign policy interest, the critics voice only disdain for that principle.
Even more laughable is the charge of a conspiracy to create a world government. In reality, the convention expanded national sovereign rights more than any international agreement in history. Its central thrust entails an extension of coastal resource and economic rights in a vastly enlarged exclusive economic zones (EEZ) and continental shelf, while furthering sovereign rights and navigational freedom. On the contrary, the corridors of the law of the sea negotiations were predominantly filled with thoughts of nationalism rather than internationalism. And ironically, in their attack on the convention, the critics join extreme internationalists who have been key opponents of the treaty because it focuses on national sovereign rights.
Critics' complaints tend to center on provisions that require submarines to surface and show their flag in the territorial sea, as well as those provisions that limit rights to board foreign flag ships. But apparently out of ignorance they never disclose that such provisions are already binding on the United States pursuant to the 1958 convention that was ratified with the Senate's advice and consent almost a half-century ago and with which we have lived since. Nor do the critics note the reciprocal nature of the law. Provisions against overly broad boarding exist precisely to protect the sovereignty of U.S. flag ships on the high seas. Do the critics really want Chinese submarines submerged off the beaches of New York or Los Angeles? Most importantly, the 1982 convention has considerably improved on the 1958 convention to meet current U.S. resource and strategic needs. Arguments against the convention that ignore the 1958 obligations effectively support those now outdated concepts, foregoing the new strategic rights of transit passage through straits, archipelagic sea lanes passage, the improved regime of innocent passage and many other issues critical to U.S. national security and ocean interests.
The term "peaceful purposes" did not, of course, preclude military activities generally. The United States had 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. (7)Indeed, in their zeal to complain about the convention, the critics promote an interpretation of this language that may be cited by opponents of future space-based missile defense programs. Thus, in a different context, the implication of this argument would be to ban the aforementioned defense systems because of our adherence to the Outer Space Treaty that contains the same "peaceful purposes" language. (8) Real world experience refutes this argument by showing warships of every major power freely navigating the world's oceans despite the convention being in force for 149 nations.
The Somali Transitional Federal Government (TFG) and other semi-autonomous regions within Somalia are actively en- gaging with antipiracy efforts.122 Somalia went further than waiving its expulsion right under UNCLOS.123 It actively requested international assistance to combat unlawful acts in its waters and piracy,124 perhaps because it could not do so itself, but also because neither UNCLOS nor SUA would otherwise permit foreign navies to intervene in its waters.125 The Security Council subsequently passed a number of resolutions on the matter, which have authorized a robust use of military force.126 Notably, Resolution 1816 provides authorization for foreign states cooperating with the TFG to enter its territorial waters for the purpose of repressing piracy, provided the TFG notifies the Secretary General in advance of the agreement.127 Resolu- tion 1950 provides the most recent extension of that permission from the date of its adoption.128 Further, Resolution 1851 argu- ably extends that permission to land-based operations as well, which the French military has undertaken.129
Several factors make naval patrols the only true legal and practical option.117 Only warships can seize pirates under UNCLOS,118 and the IMO strongly cautions against arming merchant ship crews or carrying private security forces on-board because of the possibility for escalation of violence during pirate attacks.119 Moreover, Somalia lacks the power to control its own maritime territory, and so international antipiracy efforts necessarily do the job for it. The UNCLOS provisions that protect coastal states’ sovereignty would hamper antipiracy efforts. Since UNCLOS permits the establishment of a state’s territorial sea at the waters within twelve nautical miles from the coastal low-water line,120 and Somalia is a signatory of the treaty,121 pirates operating in a vast area around Somalia’s long coastline could theoretically harass and hijack ships with a manner of double impunity. States have thus gone to great lengths to address that obstacle. Yet safeguarding their ability to exercise jurisdiction in foreign territorial waters for enforcement purposes did not provide the broad and flexible adjudica- tive jurisdiction states today require.
UNCLOS parties would have several options if they desired to clarify this point. The International Tribunal for the Law of the Sea (ITLOS) has competence to issue an advisory opinion on the provision’s meaning.91 However, ITLOS lacks competence to try suspected pirates themselves.92 Despite calls to permit such trials through amendment to the statute of ITLOS or additional UNCLOS protocols,93 converting a judicial body initially designed to settle interpretive disputes among states relating to UNCLOS into a criminal tribunal remains unprecedented and impractical.94 UNCLOS article 105 would nonetheless preclude this possibility at ITLOS and other inter- national courts, such as the International Criminal Court, which also lack the mandate to hear piracy cases.95 Parties could alternatively amend UNCLOS to suit their needs through formal procedure by convening a consensus-seeking conference, or through simplified procedure, followed by adoption of an amendment and signature, ratification, or accession to it.96