Evidence: Most Popular
The environment and the management of natural resources are the most pressing security issue in the North. States are committed to addressing issues of boundaries and Arctic Ocean access through existing institutions, principally UNCLOS. Large-scale damage to the Arctic environment from transportation accidents, energy development, fishing, tourism, and the long-range transport of pollutants from the South pose greater immediate threats than classic security issues. Emergency response systems and contingency plans for the North are needed to respond to possible ship disasters, industrial pollution, oil spills, etc. Such a response system is currently non-existent or not up to the task. Given the increased shipping activity in the Arctic and the lack of ports and rescue capability, the need is growing. This should be a task for the Arctic Council in cooperation with existing specialized bodies such the International Maritime Organization.
The need for large-scale ecosystem-based management regimes to pro- tect the integrity of the Arctic Ocean is receiving increasing attention, including proposals for an Arctic Treaty or Park to manage and protect the Arctic Ocean as a commons. These proposals underlie the need for a strong Arctic Council and U.S. participation in UNCLOS in order to provide institutional protection for the Arctic Ocean.
In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute, particularly with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China’s EEZ. The position of the United States and most countries is that while the United Nations Convention on the Law of the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters.6 The position of China and 26 other countries (i.e., a minority group among the world’s nations) is that UNCLOS gives coastal states the right to regulate not only economic activities, but also foreign military activities, in their EEZs. In response to a request from CRS to identify the countries taking this latter position, the U.S. Navy states that countries with restrictions inconsistent with the Law of the Sea Convention [i.e., UNCLOS] that would limit the exercise of high seas freedoms by foreign navies beyond 12 nautical miles from the coast are [the following 27]: Bangladesh, Brazil, Burma, Cambodia, Cape Verde, China, Egypt, Haiti, India, Iran, Kenya, Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Saudi Arabia, Somalia, Sri Lanka, Sudan, Syria, Thailand, United Arab Emirates, Uruguay, Venezuela, and Vietnam.7
Other observers provide different counts of the number of countries that take the position that UNCLOS gives coastal states the right to regulate not only economic activities but also foreign military activities in their EEZs. For example, one set of observers, in an August 2013 briefing, stated that 18 countries seek to regulate foreign military activities in their EEZs, and that three of these countries—China, North Korea, and Peru—have directly interfered with foreign military activities in their EEZs.8
Supporters of the United States becoming a party to UNCLOS argue or might argue one or more of the following:
- The treaty’s provisions relating to navigational rights, including those in EEZs, reflect the U.S. position on the issue; becoming a party to the treaty would help lock the U.S. perspective into permanent international law.
- Becoming a party to the treaty would give the United States greater standing for participating in discussions relating to the treaty—a “seat at the table”—and thereby improve the U.S. ability to call on China to act in accordance with the treaty’s provisions, including those relating to navigational rights, and to defend U.S. interpretations of the treaty’s provisions, including those relating to whether coastal states have a right under UNCLOS to regulate foreign military activities in their EEZs.
- At least some of the ASEAN member states want the United States to become a member of UNCLOS, because they view it as the principal framework for resolving maritime territorial disputes.
Opponents of the United States becoming a party to UNCLOS argue or might argue one or more of the following:
- China’s ability to cite international law (including UNCLOS) in defending its position on whether coastal states have a right to regulate foreign military activities in their EEZs73 shows that UNCLOS does not adequately protect U.S. interests relating to navigational rights in EEZs; the United States should not help lock this inadequate description of navigational rights into permanent international law by becoming a party to the treaty.
- The United States becoming a party to the treaty would do little to help resolve maritime territorial disputes in the SCS and ECS, in part because China’s maritime territorial claims, such as those depicted in the map of the nine-dash line, predate and go well beyond what is allowed under the treaty and appear rooted in arguments that are outside the treaty.
- The United States can adequately support the ASEAN countries and Japan in matters relating to maritime territorial disputes in the SCS and ECS in other ways, without becoming a party to the treaty.
- The United States can continue to defend its positions on navigational rights on the high seas by citing customary international law, by demonstrating those rights with U.S. naval deployments (including those conducted under the FON program), and by having allies and partners defend the U.S. position on the EEZ issue at meetings of UNCLOS parties.
Some observers are concerned that China’s maritime territorial claims, particularly as shown in the map of the nine-dash line, appear to challenge to the principal that the world’s seas are to be treated under international law as international waters. If such a challenge were to gain acceptance in the SCS region, it would have broad implications for the United States and other countries not only in the SCS, but around the world, because international law is universal in application, and a challenge to a principal of international law in one part of the world, if accepted, can serve as a precedent for challenging it in other parts of the world. Overturning the principal of freedom of the seas, so that significant portions of the seas could be appropriated as national territory, would overthrow hundreds of years of international legal tradition relating to the legal status of the world’s oceans.54
More specifically, if China’s position on whether coastal states have a right under UNCLOS to regulate the activities of foreign military forces in their EEZs were to gain greater international acceptance under international law, it could substantially affect U.S. naval operations not only in the SCS and ECS (see Figure 5 for EEZs in the SCS and ECS), but around the world, which in turn could substantially affect the ability of the United States to use its military forces to defend various U.S. interests overseas. As shown in Figure 6, significant portions of the world’s oceans are claimable as EEZs, including high-priority U.S. Navy operating areas in the Western Pacific, the Persian Gulf, and the Mediterranean Sea. The legal right of U.S. naval forces to operate freely in EEZ waters is important to their ability to perform many of their missions around the world, because many of those missions are aimed at influencing events ashore, and having to conduct operations from more than 200 miles offshore would reduce the inland reach and responsiveness of ship-based sensors, aircraft, and missiles, and make it more difficult to transport Marines and their equipment from ship to shore. Restrictions on the ability of U.S. naval forces to operate in EEZ waters could potentially require a change in U.S. military strategy or U.S. foreign policy goals.55
The Senate can ensure that international tribunals do not gain jurisdiction over our military activities when we join this Convention. In 2003, the Administration worked closely with the Committee to develop a proposed Resolution of Advice and Consent --- which we continue to support --- that contains a declaration regarding choice of procedure for dispute resolution. The United States rejected the International Court of Justice and the International Tribunal for the Law of the Sea and instead chose arbitration. That choice-of-procedure election is expressly provided for in the Convention itself. In addition, and again in accordance with the express terms of the Convention, the draft Resolution of Advice and Consent completely removes our military activities from the dispute resolution process. Furthermore, each State Party, including the United States, has the exclusive right to determine which of its activities constitutes a military activity, and that determination is not subject to review.
Becoming a Party to the Law of the Sea Convention directly supports our National Strategy for Maritime Security. As the President noted in the opening pages of the Strategy: “We must maintain a military without peer – yet our strength is not founded on force of arms alone. It also rests on economic prosperity and a vibrant democracy. And it rests on strong alliances, friendships, and international institutions, which enable us to promote freedom, prosperity, and peace in common purpose with others.” That simple truth has been the foundation for some of our most significant national security initiatives, such as the Proliferation Security Initiative. As the leader of a community of nations that are Parties to the Convention, more than 150 in total, the United States will be better positioned to work with foreign air forces, navies, and coast guards to address jointly the full spectrum of 21st Century security challenges.
Regardless, the United States cannot afford to wait to join UNCLOS before bringing a decisive res- olution to the challenges in the SCS. The Senate Foreign relations Committee has taken the convention under consideration on many occasions, including hearings in 1994, 2003, 2004, and 2007. The committee held four hearings in 2012, but then-chairman Senator John Kerry (D–MA) did not attempt to offer the convention for a committee vote due to stiff opposition by the convention’s detractors.
There is no realistic possibility that the United States will ratify UNCLOS in the near term, or perhaps ever. U.S. policymakers should instead concentrate their efforts on developing and implementing a specific strategy to address intractable problems, such as those the United States faces in the SCS.
More than a decade after the adoption of UNCLOS, the Department of Defense issued an Ocean policy review paper on “the currency and adequacy of U.S. oceans policy, from the strategic standpoint, to support the national defense strategy,” which concluded that U.S. national security interests in the oceans have been protected even though the U.S. is not party to UNCLOS:
U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 law of the Sea Convention, and as supplemented by diplomatic pro- tests and assertion of rights under the Freedom of Navigation program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.22
This is not to say that the Department of Defense does not support U.S. accession to UNCLOS—it certainly does. However, the Department of Defense does not, and cannot, say that U.S. membership in UNCLOS is absolutely essential to the preservation of navigational rights or that the United States is incapable of protecting those rights unless it accedes to the convention.
The U.S. Navy thrived for more than 180 years from its birth in 1775 through two world wars and developed into a global maritime power, all without membership in UNCLOS. in 1958, the principles of high seas freedom and innocent passage through territorial waters were codified in the first round of law-of-the-sea conventions. Between 1958 and 1982, the Navy continued to fulfill its mission on a global scale. UNCLOS was adopted in 1982, duplicat- ing the navigational provisions of the 1958 conven- tions and “crystallizing” the concepts of transit pas- sage and archipelagic sea-lanes passage. Since 1982 through the end of the Cold War and to the present day, the Navy continues to prosecute its mission as the world’s preeminent naval power.
Ratification of UNCLOS will neither sway China nor guarantee U.S. navigational rights in the SCS which are advanced not by membership in a treaty, but by maintaining a strong Navy, conducting persistent naval operations against China’s excessive maritime claims, supporting key U.S. allies, and adhering to long-standing principles of the customary international law of the sea.
The customary international law of the sea— which includes the principles of freedom of the seas, “innocent passage” through territorial waters, and passage rights through international straits and archipelagoes—existed long before UNCLOS was adopted in 1982. The convention merely codified and elaborated upon these widely accepted principles. While not a party to UNCLOS, the United States— unlike China—actually honors the convention’s provisions. The United States demarcates legitimate maritime boundaries, respects the rights of coastal states within their EEZs and territorial seas, and adheres domestically to the regimes regarding the contiguous zone and EEZ.
No evidence suggests that China, or any other state, would respect its obligations under UNCLOS to a greater extent if the United States became a party. Nor is there any evidence that ratification of UNCLOS would enhance U.S. military capability. The Freedom of Navigation program, the primary means of the U.S. confronting China’s exces- sive claims, does not rely on U.S. membership in UNCLOS.