Evidence: Recently Added
About two years ago, French fishing vessels unreasonably obstructed a British repair vessel in carrying out cable maintenance off the coast of France by blocking its path. UNCLOS provides remedies which would protect the cable owner's rights in these situations. Judge Wolfrum, the President of the International Law of the Sea Tribunal, is in the audience and could certainly expand on this point. For those who may feel that was only a British and French problem, you would be wrong. The cable involved carried US traffic.
Since 1998 China6 is requiring permits for cables not landing in the country, but which transit its EEZ. The Russian Federation since 1995 is claiming the right to delineate cable routes on its continental shelf in the Arctic as far north as the North Pole. Both of actions are violations of Article 79 of UNCLOS which does not allow a coastal nation to delineate or permit the routes of transiting international cables on the continental shelf.
Last February, in response to a proposal by the province of Nova Scotia to possibly mandate cable routes and require payments to bottom fishermen for use of the seabed in international waters, North American cable owners based their strong jurisdictional arguments against the plan on the straight forward provisions of UNCLOS, which since Canada is a party to UNCLOS, are binding.
UNCLOS is a powerful tool to overcome these encroachments on the freedom to lay cables, but US companies suffer, because the United States has not become a party. If the United States is a party to UNCLOS, then US telecom companies, the Navy, and scientists can enlist the U.S. government to enforce the rights of cable owners to lay, repair and maintain cables in international waters. Without the status of a party to UNCLOS, the United States has no access to the important remedies under UNCLOS to enforce treaty obligations on behalf of US companies or government agencies.
UNCLOS is needed as well close to home. UNCLOS provides clear boundaries between seabed users and coastal nations with universal norms. These same norms are needed with respect to federal and state government policy.
In the last eight years, the traditional rights of cable owners outside of territorial waters have been the victim of steady encroachment by certain state agencies and certain federal agencies which seek to expand their regulatory reach over international cables- in California or Oregon out to 200 nautical miles, in New Jersey out to 110 nautical miles off their coasts. Compare these with state jurisdictions over international cables of 3 nautical miles claimed by Florida or New York, and the quandary of cable owners can start to be appreciated. These jurisdictional differences translate into added delays of 1-2 years and millions of additional dollars for installing new cable systems. This jurisdictional confusion would be harmonized by UNCLOS.
The current uncertainty and conflicts over the limits of the United States continental shelf and margin and the rights and obligations of international cables laid on it will be largely resolved by UNCLOS.
Critics of UNCLOS raise the argument that since many of the rights spelled out in UNCLOS can be considered customary international law to which the US adheres, there is not need to formally ratify the convention.
From first hand experience, I can say this academic argument fails in the real world. Customary international law requires a court decision to determine state practice, before it can be said to be binding law. Last year I involved in a non-cable major marine pollution case pending in a US court where the issue was the rights of a European coastal nation to refuse entry to a leaking supertanker after the crew had been rescued. I think the issue is well addressed in UNCLOS, but both sides presented expert witnesses and detailed memorandums arguing for different interpretations of what the applicable state practice and customary international law is. Ultimately, we won't know the answer until the Judge decides the issue. The point is that telecom companies can not make business investments on such an illusive basis as customary international law. They need reliable and discernable international law which UNCLOS expressly provides.
Finally, the linkage between the need for the U.S. to maintain a strong position to defend U.S. and allies interests and the need to ratify UNCLOS has been cited in previous war games with international players at the Naval War College, such as the recent Global Maritime Partnership Game. Players perceived a gradual erosion of U.S. influence among current and future maritime partners that may have negative effects on U.S. interests. The need for U.S. leadership to ratify UNCLOS is warranted in order to prevent the erosion of U.S. influence among partners and in theaters of operation.
Players in the Arctic groups identified the need for building Arctic partnerships and focusing on a “whole of government” approach in order to build Arctic Domain Awareness (ADA), with an emphasis on the vastness of the maritime passages and respond to crises. Players in the Arctic groups asserted that the United States should take an active leadership role in Arctic policies, issues, and development. Players further asserted that UNCLOS ratification would facilitate establishing the U.S. as a leader in Arctic issues including ADA. Conversely, continued non- ratification of UNCLOS could result in Russia emerging as the dominant power in the region, potentially claiming sovereignty of half the Arctic basin, and assuming a leadership role concerning Arctic issues (Schlauder, 2007). Overall, the United States role in the Arctic could be marginalized if actions, policies, and investments fail to keep pace with economic development in the Arctic.
Players agreed that the United States should ratify UNCLOS as soon as possible. Players cited a number of reasons why UNCLOS ratification should be considered as a national imperative. First, without ratification, the United States does not have a seat at the table despite the fact that UNCLOS was originally drafted with U.S. interests in mind. Second, the United States has not yet ratified this treaty and other states that have ratified it have the ability to modify it while the United States remains dormant. If the United States ratifies UNCLOS after modification by other states, then it must be accepted as modified, with amendments that may not be favorable to the United States. Third, failure to ratify UNCLOS will mean that the United States will not be able to file for an Expanded Continental Shelf Claim in order to extract resources beyond the 200 mile Economic Exclusion Zone (EEZ). Fourth, ratification would increase the certainty or predictability of the future security and political environment that industry desires in order to invest in economic development of the Arctic region. Thus, non-ratification risks the loss of future economic interests by the United States.
Non-ratification of UNCLOS may also negatively impact other U.S. interests and other regions. Taking note of U.S. non-ratification, other states may disregard key aspects of international law, such as Freedom of Navigation (FON) or rights under the EEZ. They may feel that if the U.S. government does not recognize the rules, then why should they? The impacts of nations withdrawing from the convention or challenging it could spill over into unintended consequences elsewhere, such as conflict in the South China Sea.
Being a member of the Convention will help to simplify this complex maritime environment both for our military forces as well as our commercial partners who have played a critical role in developing new routes for transporting DOD cargo and in enabling access to a vast global infrastructure for transport of DOD cargo. More than 90 percent of all military supplies and equipment are transported around the world by sea, much of it by commercial vessels. This Convention provides important legal support for our commercial partners who transport our cargo, unescorted by U.S. warships, under the legal regimes of the Law of The Sea Convention. Without codification of those rights, our commercial partners are at greater risk.
USTRANSCOM’s military and commercial partners operate across every portion of the globe in defense of our national interests. Before we send them into harm’s way, it is important for our sailors and airmen to know they have the backing and authority of U.S. accession to the Convention on the Law of the Sea rather than depending on customary international law which some nations attempt to ignore or challenge. This is especially true for strategic chokepoints such as the Bab Al Mandeb, the Gulf of Aden and the Strait of Hormuz. Iran’s recent challenge to freedom of navigation through the Strait of Hormuz for a military exercise is an example of threats to international law and our ability to move critical supplies through that region. Acceding to the Convention would provide U.S. forces and commercial partners the strongest legal footing for countering an Iranian anti-access attempt to close the strait to international shipping.
Joining this Convention would codify several important recognized rights of navigation into a binding legal foundation. It supports our national security interests by defining the rights of U.S. military and civilian vessels as they meet our mission requirements, reaffirms the sovereign immunity of our warships and other vessels owned by the United States and used for government noncommercial service, and preserves our right to conduct military activities and operations in exclusive economic zones. As the defense strategy places greater demands on our ability to mobilize forces, guaranteed access to shipping and overflight lanes becomes increasingly important to support our forces overseas.
Currently, the United States relies upon customary international law as the primary legal basis to secure global freedom of access. However, as emerging powers around the world grow and modernize, states may seek to redefine or reinterpret customary international law in ways that directly conflict with our interests, including freedom of navigation and overflight, potentially challenging our global mobility needs. This Convention represents the best guarantee against erosion of essential navigation and overflight freedoms that we take for granted through reliance on customary international law. Accession will give the United States leverage to counter efforts by other nations seeking to reshape current internationally accepted rules we depend on for transporting cargo and passengers.
UNCLOS allows coastal states fairly wide authority to prescribe conditions of entry upon foreign vessels. This constitutes perhaps the most obvious mechanism for addressing illegal or problematic shipping discharges of pollution. Yet the U.S. should ensure its right to establish more stringent or targeted measures as necessary to protect and conserve the marine environment. For example, since 1996 the U.S. has required ships entering the Great Lakes to exchange ballast water from beyond the Exclusive Economic Zone as a condition of entering into the Great Lakes system to minimize the spread of invasive species.10
We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be included with the instrument of accession. This statement should clarify that the U.S. interprets Articles 25.2 and 211.3 to recognize longstanding rights of states to impose conditions on the entry of vessels into ports or internal waters. Conditions on port of entry include conditions on operation and design of a vessel as it proceeds to a given U.S. port of call, extending seaward as necessary.