Revision of U.S. Navy's freedom of navigation is continually challenged by excessive claims from Wed, 04/16/2014 - 23:38
U.S. Naval forces are continually challenged by more than 100 illegal, excessive claims around the globe that adversely affect vital navigational and over-flight rights and freedoms. Accession to UNCLOS would give the U.S. Navy more tools to help rollback these violations.
Quicktabs: Arguments
Next, Rear Admiral Frederick J. Kenney presented the importance of UNCLOS to the U.S. Coast Guard. He emphasized that on a daily basis the Coast Guard’s operational officers rely on the freedom of navigation that UNCLOS attempts to preserve. The Coast Guard is the only U.S. surface presence in many parts of the world, and this widespread presence allows the Coast Guard to respond quickly to international incidents. For example, a Coast Guard cutter was the first U.S. presence in Georgia after Russian troops entered the country in 2008.
Because the United States is not a party to the Convention, however, Rear Admiral Kenney explained that the United States cannot use its dispute resolution mechanisms for resolving conflicting claims to ocean territory. In one important dispute, the United States and Canada disagree about whether Passamaquoddy Bay is part of Canada’s internal waters and thus whether Canada can block passage of commercial shipping through the bay to East Port, Maine. If plans for a liquid natural gas (LNG) terminal in East Port move forward, Rear Admiral Kenney predicts this dispute will intensify without any clear means of resolution.
Rear Admiral Kenney drew on his personal experience as a negotiator to discuss the difficulties the United States faces in negotiating other treaties because it is not a party to UNCLOS. As the primary regulator of U.S. shipping, the Coast Guard participates in treaty negotiations with the International Maritime Organization (IMO). However, the IMO’s primary treaties are inextricably linked to UNCLOS, and Rear Admiral Kenney opined that the United States loses credibility in IMO negotiations because it is not a party to UNCLOS. Further, Rear Admiral Kenney suggested that bilateral agreements regarding drug enforcement would be easier to negotiate if the United States were a member of UNCLOS because they would be able to incorporate UNCLOS’ enforcement mechanisms.
The Law of the Sea Convention is a key weapon in this struggle for our oceans’ freedom. The United States won through the negotiations the core elements of that freedom. To abandon that win is the legal equivalent of unilateral disarmament for the United States in the struggle for freedom of the seas. The price we will pay through time for any such error in judgment will be high. In essence the critics who would have us abandon a rule of law in the world’s oceans may effectively be asking American servicemen and women someday to pay with their lives for the absence of such a rule of law. This is not mere hyperbole; already disputes about the oceans regime have cost American lives. Thus, an American aircraft in lawful overflight of the high seas was forced down by Peru in asserting an illegal claim over an extended area of the seas. More recently, harassment by Chinese fighters brought down a United States aircraft engaged in lawful activities under the 1982 Convention. And, at minimum, the economic cost of new naval configurations designed to get around a creeping loss of freedom – possibly with required pay-offs to coastal states – could be considerable.
In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute, particularly with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China’s EEZ. The position of the United States and most countries is that while the United Nations Convention on the Law of the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters.6 The position of China and 26 other countries (i.e., a minority group among the world’s nations) is that UNCLOS gives coastal states the right to regulate not only economic activities, but also foreign military activities, in their EEZs. In response to a request from CRS to identify the countries taking this latter position, the U.S. Navy states that countries with restrictions inconsistent with the Law of the Sea Convention [i.e., UNCLOS] that would limit the exercise of high seas freedoms by foreign navies beyond 12 nautical miles from the coast are [the following 27]: Bangladesh, Brazil, Burma, Cambodia, Cape Verde, China, Egypt, Haiti, India, Iran, Kenya, Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Saudi Arabia, Somalia, Sri Lanka, Sudan, Syria, Thailand, United Arab Emirates, Uruguay, Venezuela, and Vietnam.7
Other observers provide different counts of the number of countries that take the position that UNCLOS gives coastal states the right to regulate not only economic activities but also foreign military activities in their EEZs. For example, one set of observers, in an August 2013 briefing, stated that 18 countries seek to regulate foreign military activities in their EEZs, and that three of these countries—China, North Korea, and Peru—have directly interfered with foreign military activities in their EEZs.8