Evidence: Recently Added
The debate over whether to ratify has been characterized as one between “interests with varying degrees of political and eco- nomic power.”221 Historically, the competing interests have been domestic private industries, such as petroleum, fishing, and hard minerals, government arms, such as the military and defense department, and also scientific communities.222
Today, the Convention enjoys widespread support from virtually all groups that have an interest on the seas, including American business groups, various military defense officials and groups, environmental and public interest organizations, high level administration officials, and legal and research bodies, satisfying rationalist observers that the right influences are in favor of the Convention.223
The United States has also taken steps to tie its continental shelf to the Arctic Seacap in an effort to claim some of the re- sources beneath it.192 The most recent U.S. expedition may have found evidence to extend the continental shelf north of Alaska 100 miles from where it was originally thought to be.193 This could provide a challenge to Russia, Denmark and even Canada’s claims to the territory in the Arctic Seacap. However, as a non-party to the Convention, the United States has limited recourse for its claim.194 As a party, the United States may (and likely would) submit evidence of its expansive continental shelf to the Commission on the Limits of the Continental Shelf and conclusively establish the outer limits of its territorial sea in the Arctic.195 Should another state try to infringe upon these limits, the United States would have evidence supported by international law to protect itself. The states most likely to pose a threat to the United States in the Arctic—Denmark, Canada and Russia—are all parties to the Convention and therefore must adhere to the findings of the Commission on the Limits of the Continental Shelf. Absent ratification of the Convention, the United States could have taken Russia’s approach. In the unlikely event that terra nullius is found to be an acceptable method for claiming territory on the seas, this action, nevertheless, would have been futile since Russia was the first to assert a claim over the Arctic.
The resource race of the 21st century requires that nations seek resources from every corner of the globe to meet growing demand.169 The seas—long considered valuable sources of minerals, food, and now, energy—are no exception.170
Not surprisingly, nations are racing to stake a claim to these resources.171 Russia made a bold move in August of 2007 by planting a flag on the Arctic Seacap at the North Pole in an attempt to reinforce claims it has been making since 2001 that it owns the resources on the floor of the Arctic Ocean.172 The Arctic Seacap is an especially sought after area since it “may hold billions of gallons of oil and natural gas—up to 25 percent of the world’s undiscovered reserves”173 and is rapidly melting, making it navigable for the first time.174 Russia’s actions met immediate resistance from members of the international community, and have sparked debate over the resources the sea holds and who their lawful owner is.175 In fact, one journalist commented that “[t]he polar dive was part publicity stunt and part symbolic move to enhance [Russia’s] disputed claim to nearly half the Arctic seabed.”176
There are more than one hundred illegal, excessive coastal state claims worldwide that purport to impair vital navigation and over- flight rights and freedoms.122 Rejecting the Convention because it is violated by some states and applied imperfectly by others falls into the familiar trap made by the novice of international law— which is to reject international law because all nations do not adhere to all of its standards all of the time. Moreover, rejecting the Convention forgoes the opportunity to use international treaty law as a mechanism to influence change in the domestic laws—and the behavior—of noncompliant states. On the other hand, there is pressure to reshape interpretations of the Convention from the European Commission, vocal NGOs and some member states in ways that undermine freedom of the seas, undercutting national economic and security interests. The contest of ideas to shape future interpretations of the Convention is not unlike international political competition.
Similarly, Iran has adopted a combination of overt threats and lawfare to pursue its anti-access or sea denial strategy throughout the Persian Gulf and the approaches to the Straits of Hormuz.86 Tehran’s strategy also focuses on attempting to market to the world community erroneous territorial and jurisdictional claims that are inconsistent with the rules of the Convention. These claims include a series of excessive straight baselines which purport to convert international water into Iranian territorial seas,87 the assertion of Iranian state security powers in the contiguous zone,88 a requirement for foreign warships and nuclear-powered vessels to obtain advance consent for conducting innocent passage,89 and a prohibition on “foreign military activities and practices” in the Iranian EEZ.90 One Iranian analyst has gone even further, suggesting the entire Persian Gulf constitutes a closed political region that permits “innocent passage” of vessels throughout the Gulf, but only so long as they are not conducting “coercive measures” against Iran aimed at undermining Tehran’s sovereignty.91
Political and legal activity publicized by international civil society and transnational organizations may be used to bring pressure against a potential adversary. China seeks to leverage international organizations and willing national governments in its lawfare campaign. The Department of Defense reports, for example, that the assertion of claims and rights in the maritime domain could enhance the perceived legitimacy of coercive Chinese operations at sea.79 From the Chinese perspective, the global nature of international politics and the proliferation of international laws and regu- lations serve to make this form of legal warfare more effective than in the past.80
In terms of maritime strategy, China’s legal warfare is a resourceful anti-access or sea denial strategy. Sea denial is employed by inferior continental navies to deny maritime powers the ability to exercise command of the sea and thereby limit their influence over events on land.81 Employment of submarine mines is an example of a traditional sea denial strategy. China seeks to create “strategic depth” to the Chinese mainland by denying access of its EEZ to warships and aircraft of the United States, Japan and other coun- tries in the region. The strategy of the People’s Liberation Army (Navy) (PLA(N)) set forth in a recent Chinese defense white paper is directed at the “gradual extension of strategic depth for offshore defensive operations” and for “enhancing its capabilities in inte- grated maritime operations and nuclear counterattacks.”82
From the negotiating history to the present, freedom of the seas has been the principle U.S. national interest in the treaty. In early 2007, Assistant to the President for National Security Affairs Stephen B. Hadley wrote to the Chairman of the Senate Foreign Relations Committee, “the Convention supports navigational rights critical to military operations and essential to the formulation and implementation of the President’s National Security Strategy, as well as the National Strategy for Maritime Security.”67 On May 15, 2007, President Bush declared, “Joining [the Law of the Sea Con- vention] will serve the national security interests of the United States, including the maritime mobility of our armed forces world- wide.”68 Shortly thereafter, on June 26, 2007, the Joint Chiefs of Staff, which includes the Chairman and the Service Chiefs, all signed a letter to the Senate in support of the Convention.69
In a 1996 report, the Department of Defense and the Joint Chiefs of Staff set forth the major national security benefits of the Law of the Sea Convention.54 The foremost benefit is global access to the oceans throughout the world, including areas adjacent to coastal states, which include the contiguous zone and the EEZ.55 These interests extend to U.S. security and economic interests in global high seas freedoms, including freedom of navigation, overflight, and telecommunications.56 Benefits also include a stable, comprehensive, and nearly universally-accepted Convention, modified by the 1994 Agreement, to promote public order and free access to the oceans and the airspace above it.57
The Proliferation Security Initiative. Similar to concerns related to intelligence activities, the effect of convention accession on the PSI is best addressed by those executive branch departments responsible for its creation and execution. Ambassador John R. Bolton, undersecretary of state for arms control and international security affairs during the creation of the PSI, has stated: “I don’t think that if the Senate were to ratify the Law of the Sea Treaty and the president were to make the treaty, that it would have any negative impact whatsoever on PSI.”35
The vice chief of naval operations has provided testimony that indicates joining the convention is necessary for, not harmful to, further PSI success: “[O]ur failure to be a Party to the Law of the Sea Convention is limiting further expansion of PSI. Critically important democratic Pacific countries have indicated a desire to support our counter-proliferation efforts, but they tell us that so long as we are not a Party to the Law of the Sea Convention, they will not be able . . . to endorse PSI.”36"Statement of Admiral Patrick M. Walsh: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (4 quotes) ]