Evidence: Recently Added
First and foremost, China harbors a deep sense of entitlement to arctic resources, sea-lanes, and governance. this entitlement relies on various justifications. as a Northern Hemisphere country that is affected by arctic warming, a permanent member of the UN security Council, and the world’s most populous state, China sees its role in arctic affairs as indispensable. Chinese rear admiral Yin Zhuo made this point in March 2010, proclaiming that “the arctic belongs to all the people around the world as no nation has sovereignty over it.”85 similarly, in 2009 Hu Zhengyue, China’s assistant minister of foreign affairs, warned that arctic countries should “ensure a balance of coastal countries’ interests and the common interests of the international community.”86 Hu, it seems, was advising the circumpolar states not to lock up for themselves the resources and sea-lanes of the arctic.
China further asserts its rights by employing the language of UNCLOS to argue that the arctic and its resources are the “common heritage of all humankind” and do not belong exclusively to the arctic five.87 In reality, “common heritage” in UNCLOS refers to the high seas, designated by UNClos as the area that lies beyond EEZ boundaries. If the current territorial and continental-shelf claims of the circumpolar states are ultimately accepted as presented,88 percent of the arctic seabed would likely fall under their combined sovereign EEZ jurisdictions, with the small “doughnut hole” in the center qualifying as the common heritage.88 since, however, most of the resource wealth in the arctic lies within these claims, China perpetuates the notion that the entire arctic ocean is the common heritage of humankind so as to expand its legal rights there.89 this sort of “lawfare,” or misuse of the “law as a substitute for traditional military means to achieve an operational objective,” is an essential component of China’s strategy, enabling the PRC to circumvent its weaker status as a non-arctic state through asymmetrical means.90
Myth 6: UNCLOS is an "UN treaty" and sui generis does not serve U.S. interests.
The Convention is not the United Nations; it simply was negotiated under UN auspices, as are many vital international agreements. Such UN treaties as the Anti-Corruption Convention and the Convention for the Suppression of Terrorist Bombings or the International Ship and Port Facility security Code negotiated under the aegis of the International Maritime Organization enhance, not threaten, U.S. security.
Myth 3: The Convention would permit an international tribunal to frustrate the operations of the U.S. Sea Services.
Wrong. No international tribunal would have jurisdiction over the U.S. Navy, Marine Corps, or Coast Guard. Disputes concerning military activities can be completely excluded from the Convention's resolution provisions, and the United States has the exclusive right to determine what constitutes a U.S. military activity. Since 1982, all Chiefs of Naval Operations have supported ratification, and in May 2007 the Coast Guard Commandant underscored the need for ratification.
Myth 2: The United States surrenders sovereignty by joining the Convention.
Again, reality offers a different conclusion. Indeed, some have even characterized UNCLOS as a "U.S. land grab" as it expands U.S. sovereignty and rights throughout extensive maritime territory off America's coastlines. It provides a 12-mile territorial sea subject to U.S. sovereignty, U.S. sovereign rights over resources within a 200mile exclusive economic zone, and U.S. sovereign rights over resources on and under the sea floor to the edge of the continental margin, which extends well beyond 200 miles in several areas-up to 600 miles to the edge of the continental shelf off Alaska, for instance. Also, the dispute-resolution mechanism provides flexibility in terms of both the forum and the exclusion of subject matter that touches sovereignty concerns. And, the navigational provisions, especially for international straits and archipelagic passage, ensure that the nation's warships and public vessels-as sovereign U.S. "territory"-enjoy global maritime mobility and access without requiring prior permission from coastal states.
Myth 1: “We don't need no stinkin' UNCLOS! " as customary international law will protect important U.S. interests.
Not so. The Convention provides clear legal rules in a written, comprehensive treaty, as opposed to sometimes fuzzy customary international law that is easily challenged by unilateral claims and altered by countries' practices over time. The United States was one of only four countries to vote against the Convention in 1982 and continues to be aligned with such non-signatories as North Korea, relying on a curious mixture of customary law and unofficial adherence to UNCLOS provisions. We can't have it both ways, especially as we seek international partnership in other critical areas of national concern-such as the I.OOO-ship navy and a variety of international governance regimes for the good order and security of the maritime commons.
UNCLOS, however, fails to clearly address the problem of invasive species. If the treaty were interpreted such that invasive species were intended to be covered by the broad definition of “pollution” as defined in Article 1.1.3, then coastal states would be potentially constrained in their ability to prevent the spread of these invasive species from ships operating outside of the territorial sea. As the IMO has failed to prescribe international standards for the treatment of ballast water, more stringent measures by the U.S. could be interpreted as being “beyond generally accepted international rules or standards.”9 This would leave the United States reliant upon the remaining authority granted in 211 to require treatment and practices as a condition of entry into port.
We urge instead the better interpretation that alien species are not intended to be addressed by the definition of “pollution” by UNCLOS. This interpretation is supported by the fact that invasive species are addressed by Article 196, and not in Article 194, which addresses the regulation of various types of marine pollution generally. Moreover Article 196 distinguishes invasive species from pollution within the provision. We recommend that the Senate include an interpretive statement on this issue as part of its advice and consent to be included with the instrument of accession specifying that the United States does not view invasive species as “pollution” for purposes of UNCLOS.
As regards maritime boundaries, there presently exist about 200 undemarcated claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The end of the Cold War and global expansion of free market economies have created new incentives to resolve these disputes, particularly with regard to offshore oil and natural gas exploration. During the last few years hundreds of licenses, leases or other contracts for exploration rights have been granted in a variety of nations outside the U.S. These countries are eager to determine whether or not hydrocarbons are present in their continental shelves, and disputes over maritime boundaries are obstacles to states and business organizations which prefer certainty in such matters. We have had two such cases here in North America where bilateral efforts have been made to resolve the maritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between the U.S. and Canada in the Beaufort Sea. Both of these initiatives have been driven by promising new petroleum discoveries in the regions. The boundary line with Mexico was resolved in 2000 after a multi-year period of bilateral negotiations. Negotiations with Canada, however, seem to be languishing.
While such bilateral resolution is always an option, the Convention provides stability and recognized international authority, standards and procedures for use in areas of potential boundary dispute, as well as a forum for dealing with such disputes and other issues.
Executives in the energy, telecommunications and shipping industries understand how the convention will make us more prosperous. Military commanders understand how the convention will make us more secure, and the Joint Chiefs of Staff strongly support the treaty. Some detractors of the treaty have unfairly (and inaccurately) suggested that our most senior admirals and generals support the Law of the Sea due to the persistence of a cadre of Navy lawyers. In fact, our military leaders are savvy, independent thinkers who are accustomed to gathering the facts and exercising decisive judgment. Moreover, Navy lawyers are foremost naval officers wearing the uniform and embedded into military units in peacetime and combat. Sharing two professions, the profession of arms and the profession of law, this is not a silkstocking club of suits, but advisers who train and deploy with the force, providing advice on the projection of sea power on the water and ashore.
The fact that some countries that already belong to the convention and are trying to change it through reinterpreting the terms of the treaty shows that those states understand how to convert a struggle for power into a struggle to shape the law.
China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law, integrating into its maritime strategy elements of “legal warfare” and an effective public diplomacy campaign to capture world public opinion. By declining to become a member of the treaty, the U.S. has so far ceded the opportunity to influence and shape the constitution for the oceans, yielding the stage to China, North Korea and Iran to popularize their restrictive approach to navigational rights. This is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one’s political opponents have staked out objectionable positions on the issues and are engaged in “reinterpreting” its most fundamental provisions.
The drama so far is thick with irony. These criticisms from the political right have not grasped the real threat to U.S. oceans interests, which is the relentless campaign by nongovernmental organizations (NGOs) such as Greenpeace, in conjunction with certain coastal states, including some of our closest allies such as Canada and Australia, to unilaterally impose maritime rules to restrict international shipping on the oceans and aircraft overflight of the seas for purported environmental reasons. John Bolton, the former U.S. ambassador to the United Nations, describes the partnership between NGOs and some like-minded governments as “norming,” in which “civil society” combines its efforts with the most politically liberal governments to develop international law in opposition to U.S. interests. Many of the most progressive maritime rules emerging from this process are inconsistent with the navigational freedoms protected in the convention, and the U.S. relies on those freedoms to ensure submarines can transit through the world’s chokepoints and launch military operations from ships serving as “sea bases” in the littoral regions of the world. Similarly, less well-intentioned nations such as North Korea, China and Iran have sought to impose control over the ocean out to 200 miles by establishing security zones. Both types of coastal state regulations place at risk American economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing the whim of coastal states to deny the use of the global commons.