Alone on a Wide Wide Sea: A National Security Rationale for Joining the Law of the Sea Convention
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UNCLOS opponents are correct on at least one point. The customary international law of the sea – at least as generally understood today – is consistent with U.S. national security interests. The U.S. government has said as much.15"Statement of William H. Taft IV (April 8, 2004): 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 U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ] However, in relying on the apparent harmony between UNCLOS and customary law as rationale for the U.S. to remain outside the treaty, opponents have failed to address a critical question: What if UNCLOS or customary law changes? Is it possible that today’s favorable legal environment could evolve adversely to U.S. interests?
The question is more than speculative. Through the years, a variety of nations have advanced legal theories inconsistent with critical U.S. ocean policy interests.16 Historically, these nations have lacked the will or ability to affect meaningful change in the international law of the sea. Today, however, this dynamic is changing.
Consider, for example, U.S. military operations in the off-shore area known as the EEZ, as codified by UNCLOS, comprising the waters beyond a nation’s territorial sea extending a maximum of 200 nautical miles from the coast.17 For years, the U.S. has consistently maintained the right under customary international law to conduct military activities in coastal state EEZs.18"Statement of William H. Taft IV (April 8, 2004): 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 U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ] Over the past decade, however, the People’s Republic of China has initiated confrontations with U.S. ships and aircraft operating in the Chinese-claimed EEZ and its associated airspace. The Chinese have boldly rejected long-standing U.S. positions on customary international law and also challenged conventional interpretations of critical UNCLOS provisions.
The U.S.’s post-World War II record of success in shaping a favorable law of the sea agenda was achieved without a serious rival. For decades, developing nations looked to the Soviet Union for leadership in opposing perceived imperialistic trends in U.S. foreign policy. However, within the law of the sea, the Soviet antagonist was notably absent. As the nation most capable of challenging U.S. operations and underlying legal doctrines, the Soviets had no interest in doing so. The U.S. and Soviet Union were, in effect, law of the sea allies.53
Today, China shows far less inclination toward cooperation. Although Chinese legal arguments are not entirely original, what separates China from the traditionally ineffectual opponents of military maritime mobility is China’s ambitious naval modernization.54 The Chinese have served notice they intend to be at least a regional maritime power and perhaps more. Moreover, the Chinese intend to protect their maritime interests by redefining key aspects of the maritime legal regime.55
If indeed the Chinese are inclined to lead a law of the sea insurgency from a position of maritime strength, the international political climate for doing so is more favorable today than 1982, when UNCLOS opened for signature, or even than 1994, when UNCLOS entered into force. Today, states with coastal concerns and interests of their own may find China’s arguments useful in their own contexts. Two especially fertile justifications for increased regulation are protecting the coastal marine environment and ensuring off-shore security.
Coastal states can also be expected to want more control of their off-shore waters and airspace for domestic security reasons.67 "Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict ." California Western International Law Journal. Vol. 32. (2001-2001): 253-302. [ More (4 quotes) ] As technology advances, coastal states can reasonably be expected to seek a legal regime that makes it more difficult for foreign militaries to exploit advancements in the range and accuracy of weapons and intelligence-gathering inherent in manned and unmanned aerial, surface, and underwater vehicles, as well as over-the-horizon weaponry and specialized littoral platforms.
Moreover, the nature of threats such as terrorism; weapons of mass destruction; and arms, drugs, and human-trafficking encourage coastal states to extend surveillance and control beyond their territorial seas and in some cases even into others’ EEZs.68 In the aftermath of September 11, many nations, including the U.S., have increased surveillance of their coastal areas.69
To varying degrees and through various methods, coastal states have objected to military activities in their respective EEZs through the years. Whatever their historical weaknesses and current political rivalries, coastal states continue to share important interests and continue to face what Professor Bernard Oxman calls the “territorial temptation” to expand control over their off-shore waters.70
By any measure, UNCLOS satisfies the criteria for creating new custom. As such, to the extent UNCLOS reflects customary law, the most obvious way to change customary law would be to amend UNCLOS itself. Although amending the treaty could be challenging, UNCLOS provides two processes for amending its general provisions, as well as a separate process for amending the deep seabed mining provisions of the 1994 Agreement.77
UNCLOS’ general provisions can be amended by two separate procedures. A simplified procedure provides that the Secretary General may circulate a request for an amendment and if within 12 months there is no objection, the amendment is adopted. If a party objects, the amendment is rejected.78 Under the conference procedure, a party may propose an amendment and request an amendment conference. Convening the conference requires concurrence by half the state parties within twelve months of the request. After its adoption, an amendment’s entry into force by either procedure requires ratification by two thirds of the state parties.79
Significantly, if the U.S. were a party to UNCLOS, any post-accession amendment would require signature by the President and ratification by the Senate.80 According to the express terms of the treaty, the U.S. could not be involuntarily bound by post-accession changes to the Convention.81
Custom can also develop rapidly based upon interpretations of treaties, as well as the rulings and declarations of international bodies and courts that can declare an existing customary rule.87 In the past 50 years, customary rules have developed quickly in response to technological innovation or in times of fundamental change.88 Moreover, rapid changes to custom do not require multiple instances of state practice,89 particularly when a state with special influence in the field seeks change.90 Most recently, the terrorist attacks on the World Trade Center and Pentagon resulted in changed custom concerning the use of force in self-defense against non-state actors91 and those who support or harbor terrorists.92 Such changes to the well-settled field of international humanitarian law would have been unthinkable in an earlier era.
Regardless of the pace of change, the critical factor in creating and changing international custom will continue to be the relative power of relevant actors.93 The creation of international law is a political process and those with the political, economic, and military power to bend the international legal environment to their own objectives are generally successful in doing so. As relative power changes among international actors, changes to established legal paradigms should be expected.
The implications for the law of the sea are obvious. China’s willingness to challenge traditional legal constructs and ability to influence states with similar interests cannot be dismissed, especially if a dramatic event accelerates the change. One need not agree with China’s arguments or be certain of their ultimate success to acknowledge China’s potential as an advocate for coastal state interests. Whether these interests will reshape the law of the sea remains to be seen. However, to assume that customary law will remain static and that the traditional maritime powers will continue to dictate its future seems retrospective.94
Most importantly, from a national security perspective, UNCLOS’ terms are overwhelmingly favorable to the U.S. Were this not the case, additional arguments for accession would be irrelevant. To the contrary, the Convention codifies principals the U.S. national security community helped negotiate and continues to support. The Convention’s express terms give the U.S. military a comprehensive and eminently favorable basis for conducting maritime operations around the world.96
UNCLOS, as a treaty with favorable terms, is superior to customary law (and the 1958 Geneva Conventions on the Law of the Sea to which the U.S. has long been a party) as means for preserving U.S. interests in global mobility. Treaty membership would help the U.S. better preserve the favorable terms it helped negotiate, both through formal access to the amendment processes described above, as well as through UNCLOS constituent bodies such as the International Tribunal of the Law of the Sea, the International Seabed Authority, and the Commission on the Limits of the Continental Shelf.
Formal membership prerogatives aside, given the conflation of UNCLOS and current customary law, U.S. membership in UNCLOS will reinforce customary law and give the U.S. a stronger basis to affect its development in the future. Ironically, U.S. isolationism from UNCLOS serves as the leading example for others who would selectively choose among UNCLOS provisions or even abandon it altogether, thereby eroding customary law. The U.S.’ current posture undermines the very legal principles the U.S. professes to support.
Today, not surprisingly, some find inconsistency and even hypocrisy in the U.S. practice of referring others to the Convention’s obligations without incurring reciprocal treaty obligations.97 U.S. arguments on substantive issues are burdened with the stigma of unilateralism,98"Playing by or Playing with the Rules of UNCLOS? ." in Military Activities in the EEZ: A U.S.-China Dialogue on Security and International Law in the Maritime Commons, edited by Dutton, Peter A. U.S. Naval War College: Newport, Rhode Island, December 2010. [ More (4 quotes) ] making it more difficult for states committed to the Convention’s processes and multilateral framework to support underlying U.S. arguments even where there may be basis for substantive agreement.99"Statement of Gordon England: 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 (September 27, 2007) ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (2 quotes) ]
As an UNCLOS party, the U.S. would assume a natural leadership role, facilitating coalitions and eliciting support from nations inclined to support the legal prerequisites for military maritime mobility. The U.S. relies on this support in a variety of contexts, ranging from the International Maritime Organization and regular bilateral interactions with partners and allies, such as the Proliferation Security Initiative,100 where there is direct evidence that non-party status has inhibited U.S. counter-proliferation efforts.101"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) ] UNCLOS membership would also enhance the U.S.’ influence with other states as they continue to evaluate their own practices and legal positions.102
Although there may have been a time when the U.S. could simply declare its will and rely on the persuasive power of its global presence and naval gross tonnage to ensure cooperation, the guarantors of success in the modern maritime domain are more likely successfully coordinated coalitions and bilateral relationships.103 UNCLOS membership would provide a strong foundation for both.
That UNCLOS membership would promote international maritime collaboration should be obvious. Less obvious, however, is how UNCLOS membership might also facilitate unilateral action. Consider the U.S. Freedom of Navigation (FON) Program.104 Consistent with the need to shape the law through state practice, the U.S. has historically conducted operations designed to challenge excessive maritime claims. The FON program provides a framework for conducting such operations. Although states with excessive claims will never publicly welcome U.S. challenges, the U.S. – as an UNCLOS party – would have greater credibility and standing to conduct challenges, reaffirming as a fellow-member the crucial tenants of an internationally accepted legal regime. In this context, challenges might be made more frequently and in more meaningful areas, rendering them a more potent component of U.S. strategic communication on freedom of the seas and airspace. Moreover, as an UNCLOS party, the U.S. could augment the diplomatic and operational means to challenge excessive maritime claims with the Convention’s mandatory dispute procedures. The U.S. thus would have those procedures to use offensively against excessive maritime claims that are not in compliance with the Convention, including those that limit military mobility and high seas freedoms.