Evidence: Recently Added
Many people around the world believe that their emails and phone messages are being sent through satellites. They are mistaken because satellites account for less than 5%.1 Global telecommunications development began about 150 years ago with the first commercial international submarine cable, laid between Dover, England and Calais, France in 1850. In 1858, the first trans-Atlantic telegraph cable linked London with the new world, via Newfoundland.2 The 143 words transmitted in 10 hours, replaced a one-way dispatch that would have previously taken about 12 days.3
In the last 25 years, there has been a stunning growth in undersea cables because of the communications revolution triggered by the internet. Undersea cables account for 95% of the world’s international voice and data traffic (Military, Government, Emergency Response, Air Traffic Control, Subway, Rail, and Port Traffic).4 Financial markets utilize undersea cables to transfer trillions of dollars every day. In 2004 alone, nine million messages and approximately $7.4 trillion a day was traded on cables transmitting data between 208 countries.5 As a result, submarine (undersea) cables are vital infrastructure to the global economy and the world's communication system.
Another area where the United States and China differ is on the establishment of the baselines on which all the maritime regimes are defined. The Convention allows the coastal state to determine its baselines in one of three methods: the low-water line, straight baselines, and archipelagic baselines.29 For coastal states such as China and the United States, UNCLOS declares, "the normal baseline for measuring the breadth of the territorial sea is the low-water line along the Coast."30 UNCLOS allows a coastal state to apply straight baselines to measure the extent of their territorial seas under certain circumstances. These circumstances include: where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.31 China, in its 1996 Declaration of the Government of the People's Republic of China on the Baseline of the Territorial Sea, declared straight baselines and promulgated their geographic positions.32 Although the Chinese first claimed straight baselines in the 1958 Declaration on the Territorial Sea and again in the 1992 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Declaration was the first time that the Chinese actually specified the geographic coordinates of its straight baseline claims. An analysis of China's baseline claims by the U.S. State Department's Office of Ocean Affairs finds that, "much of China's coastline does not meet either of the two LOS Convention geographic conditions required for applying straight baselines."33 In some areas, the misapplication of the straight baselines allows the Chinese government to excessively claim nearly 2000 square nautical miles as territorial seas that should be regarded as high seas if the baselines were properly drawn.34 The consequence of these straight baseline claims is clear. These straight baselines extend China's territorial, jurisdictional, legal, and economic authorities into the high seas beyond where the Convention intended.
The Chinese and U.S. governments also disagree about the rights of warships to operate within a nation's Exclusive Economic Zone (EEZ). UNCLOS grants the coastal state the right to establish an EEZ that "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea extends."18 Within the EEZ, the Convention allows all States to enjoy the rights of over flight and navigation limited only by their exercise of due regard for the economic rights of the coastal states.19 In their declaration upon ratification, however, the Chinese stated that they enjoyed "sovereign rights and jurisdiction"20 over its EEZ. By omitting any reference to its economic rights within the EEZ, China appears to take a broad view of its rights to control military activity within its EEZ.21 Furthermore the Chinese government also seeks to limit the rights of warships and aircraft to operate within its EEZ by claiming that the mere presence of the military vessel violates the "due regard" elements of the Convention by posing threats to Chinese national security.22
Related to the increased international activity and interest in the Arctic described above, the fact that the United States has signed but not yet ratified the United Nations Convention on the Law of the Sea18 will become even more problematic with time and as more states call for international recognition of their Arctic claims (see Box 1.3). For example, the five Arctic coastal states—Canada, Russia, Norway, Denmark (based on its territory Greenland), and the United States—are in the process of preparing Arctic territorial claims for submission to the Commission on the Limits of the Continental Shelf. Russia’s claims to the Lomonosov Ridge, if accepted, would grant Russia nearly one-half of the Arctic. By remaining outside of UNCLOS, the United States seriously compromises its ability to take part in negotiations regarding the claims of other nations.19 UNCLOS provides a legal framework for the settlement of such disputes.
Nothing in the Convention will affect the way we currently conduct surveillance and intelligence activities at sea. Opponents to the Convention argue that the Convention’s provisions on innocent passage – Articles 19 and 20 – will prohibit or otherwise adversely affect U.S. intelligence activities in foreign territorial seas at a time when such activity is vital to our national security. I can say without hesitation that nothing could be further from the truth.
While it is true that Article 19 provides that intelligence collection within the territorial sea is inconsistent with the innocent passage regime and that Article 20 provides that submarines must navigate on the surface when engaged in innocent passage, it’s a far stretch to thus conclude that the Convention prohibits intelligence collection and requires submarines to navigate on the surface when transiting the territorial sea. Nothing in Article 19 prohibits a U.S. vessel from engaging in intelligence activities in a foreign territorial sea. If a vessel does engage in such activities, it simply cannot claim that it is engaged in innocent passage. The same rule has applied for the past seven decades. Similarly, Article 20 does not prohibit submerged transits through the territorial sea, per se. Article 20 merely repeats the rule from the 1958 Convention on the Territorial Sea, a convention to which the United States is a party. The rule concerning submerged transits from the 1958 Convention has been the consistent position of nations, including the United States, for more than 70 years and it has never been interpreted as prohibiting or otherwise restricting intelligence collection activities or submerged transits in the territorial sea. In short, if or when the need arises to collect intelligence in a foreign territorial sea, nothing in the LOS Convention will prohibit that activity.
Critics claim that the United States does not need to ratify the treaty because it already carries the force of customary international law. However, this position is viewed with skepticism by U.S. allies and open defiance by potential adversaries. Beijing, for example, has repeatedly challenged the legal right of the United States and other countries to maintain an offshore naval presence in the region's inner seas, such as the Yellow Sea and South China Sea, and China's own 200-mile exclusive economic zone. And Chinese military power, from its advanced ballistic missile program to its quickly expanding blue-water navy, raises the possibility that the new global center of power could be controlled by China. But the Law of the Sea protects the freedom of navigation of the United States and other countries with the imprimatur of international law. The Convention was completed in 1982, and it establishes the right of naval forces to innocent passage in foreign territorial seas and the right to conduct all offshore military operations-including air and submarine operations beyond 12 nautical miles from the shore-all without seeking permission or providing advance notice or reports to any country. The treaty can thus help prevent China from standing between the United States and its treaty allies Japan, South Korea, and Australia, as well as its new strategic partners, such as India and Vietnam. Japan, for example, is the cornerstone of U.S. interests in stability and security in the region, and is home to the forward-deployed U.S. Seventh Fleet. As the importance of the Pacific theater grows, American ships and aircraft require freedom of the seas to conduct ballistic missile-defense operations against North Korea, reassure allies that the United States is engaged in the region, or respond to another major humanitarian crisis like the 2004 tsunami.
Remaining outside LOSC is inconsistent with our principles, our national security strategy and our leadership in commerce and trade. Virtually every major ally of the U.S. is a party to LOSC, as are all other permanent members of the U.N. Security Council and all other Arctic nations. Our absence could provide an excuse for nations to selectively choose among Convention provisions or abandon it altogether, thereby eroding the navigational freedoms we enjoy today. Accession would enhance multilateral operations with our partners and demonstrate a clear commitment to the rule of law for the oceans. For example, under the Convention, warships are authorized to stop and board vessels if they are suspected to be without nationality or engaged in piracy. By joining LOSC, we would “lock in” these authorities as a matter of treaty law and thus strengthen our ability to conduct counter-piracy operations across the globe and provides an important tool to support counter-proliferation efforts, and maritime interdiction of terrorists and illegal traffickers tied to terrorism.