Evidence: Recently Added
[MYTH]: The 1994 Agreement does not even pretend to amend the Convention; it merely establishes controlling interpretive provisions.21 This is nonsensical. The Convention could only have been formally “amended” if it had already entered into force. The 1994 Agreement was negotiated separately to ensure that the Convention did not enter into force with Part XI in its flawed state. The 1994 Agreement made explicit, legally binding changes to the Convention and has the same legal effect as if it were an amendment to the instrument itself.22
A letter signed by all living former legal advisers to the U.S. Department of State, representing both Republican and Democratic administrations, confirms the legally binding nature of the changes to the Convention effected by the 1994 Agreement. Their letter states, “The Reagan Administration’s objection to the LOS Convention, as expressed in 1982 and 1983, was limited to the deep seabed mining regime. The 1994 Implementing Agreement that revised this regime, in our opinion, satisfactorily resolved that objection and has binding legal effect in its modification of the LOS Convention.”23
[MYTH]: Other parties will reject the U.S. “military activities” declaration as a reservation.19 Another false assertion—the American declaration is consistent with the Convention and is not a reservation (that is, in international legal usage, “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”)20 It is an option explicitly provided by article 298 of the Convention. Parties to the Convention that have already made such declarations exercising this option include the United Kingdom, Russia, France, Canada, Mexico, Argentina, Portugal, Denmark, Ukraine, Norway, and China.
[MYTH]: As a nonparty, the United States is allowed to search any ship that enters our exclusive economic zone to determine whether it could harm the United States or pollute the marine environment. Under the Convention, the U.S. Coast Guard or others would not be able to search any ship until the United Nations is notified and approves the right to search the ship.18
This also is not correct. Under applicable treaty law—the 1958 conventions on the law of the sea—as well as customary international law, no nation has the right arbitrarily to search any ship that enters its exclusive economic zone (EEZ) to determine whether it could harm that nation or pollute its marine environment. Nor would the United States want countries to have such a blanket “right,” because it would fundamentally undermine freedom of navigation, which benefits the United States more than any other nation. Thus, the descriptions of both the status quo and the Convention’s provisions are incorrect. It makes no change in our existing ability or authority to search ships entering the American EEZ with regard to security or protection of the environment. One final and very important point is that under the Convention the UN has absolutely no role in U.S. military operations, including a decision as to when and where a foreign ship may be boarded.
[MYTH]: Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as antisubmarine warfare technology).17 In fact, no technology transfers are required by the Convention. Mandatory technology transfers were eliminated by section 5 of the annex to the 1994 Agreement amending Part XI of the Convention. Further, Article 302 of the Convention explicitly provides that nothing in the Convention requires a party to release information the disclosure of which is contrary to the essential interests of its security.
[MYTH]: The Convention was drafted before—and without regard to—the war on terror and what the United States must do to wage it successfully.16 This is an irrelevant canard. It is true that the Convention was drafted before the war on terror. However, it enhances rather than undermines our ability to wage the war on terror. The robust maritime naval and air mobility assured by the Convention is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for U.S. forces, weapons, and materiel to get to the fight without hindrance—and ensures that they will not be hindered in the future.
Thus, the Convention supports the war on terror by providing important stability for navigational freedoms and overflight. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and not as a matter of approval from nations along the routes. A stable legal regime for the world’s oceans will support global mobility for our armed forces.
[MYTH]: U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).15Sink the Law of the Sea Treaty — Bandow, Doug. — Cato Institute — Mar 15, 2004 [ More ]
But our navigational freedoms are indeed threatened. There are currently more than a hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights as reflected in the Convention. But these operations entail a certain amount of risk—for example, the Black Sea bumping incident with the former Soviet Union in 1988. Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert its rights and affording additional methods of resolving conflict.
Admiral Clark's statement indicates that becoming a party to UNCLOS will help solidify United States rights that now exist only in customary international law.95 Opponents of UNCLOS claim that the United States should not become a party because the United States already enjoys the benefits of UNCLOS through customary law and, therefore, should not unnecessarily incur the treaty's burdens.96 however, ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.97 If the United States is not a party, it will have no say as to how the law develops.98 By becoming a party to UNCLOS, the United States will be able to ensure that the law of sea develops in congruence with its national security and other interests.99
From a national security standpoint, arguments against the United States becoming a party to UNCLOS are simply not compelling in the face of overwhelming military support for ratification.88 Becoming a party to UNCLOS will help build coalition partnerships in the Global War on Terrorism and the Proliferation Security Initiative.89 Moreover, the United States Navy's ability to respond to potential crises is critically linked to the freedom of navigation rights guaranteed by UNCLOS.90 Finally, neither large-scale military operations nor a single warship's inherent right to self- defense will be significantly impacted by becoming a party to UNCLOS.91 Indeed, the United States has declared that nothing in the UNCLOS impairs the inherent right to self-defense or rights during armed conflict, including any Convention provisions referring to "peaceful conflict" or "peaceful purposes."
The 2002 National Security Strategy states that the United States' success in the Global War on Terrorism depends on the destruction and disruption of terrorist organizations by "Identify[ing] and destroying the threat before it reaches our borders."69 Clearly, the United States' ability to conduct intelligence activities effectively is crucial to the prevention of future terrorist activities.70 Thus, Article 19 of UNCLOS, which appears to have ramifications for intelligence activity is highly significant.71
The impact of UNCLOS on intelligence gathering activities hinges on the interpretation of Article 19(2)(c), namely what constitutes innocent passage through coastal states' territorial waters.72 According to proponents of UNCLOS, the Convention will not significantly impact the United States' intelligence gathering activities.73 Proponents will admit that intelligence gathering does not qualify for an innocent activity under Article 19(2)(c) and therefore does not entitle the vessel conducting intelligence activities to the benefits of innocent passage.74 But they note that intelligence activities are not specifically prohibited or regulated by the Convention.75
Submarine forces are a key tool in waging the Global War on Terrorism and their unimpeded use is of crucial significance.58 The use of submarine forces provides a unique tactical advantage because of a submarine's ability to monitor a potential enemy undetected for a long duration.59 The ability to transit the ocean beneath the surface is therefore critical to a submarine's ability to maintain the advantage of covertness.60
The impact of UNCLOS on submarine operations hinges on interpretation of Article 20 of the treaty.61 Gordon England, former Secretary of the Navy, has stated that UNCLOS does not restrict or prohibit submarine activities.62 UNCLOS specifically guarantees the right to conduct transits through international straits in "normal modes", which may include submerged transit in the case of submarines. Nevertheless, the Convention mandates that ships refrain from acts that are "prejudicial," including submerged transit in territorial waters; failure to meet this obligation results in a vessel's loss of innocent passage status.63 But, UNCLOS does not explicitly prohibit submerged transit in territorial seas altogether, especially in international straits.64 This notion is echoed by Deputy Secretary of Defense, John Negroponte, who has stated that UNCLOS "does not prohibit or impair [. . submarine activities in anyway."65"Statement of John D. Negroponte: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (13 quotes) ]