Revision of U.S. ratification of UNCLOS best way to preserve freedom of navigation rights from Fri, 06/30/2017 - 11:30
The Law of the Sea Convention is the bedrock legal instrument for public order in the world’s oceans. It codifies, in a manner that only binding treaty law can, the navigation and overflight rights, and high seas freedoms that are essential for the global strategic mobility of U.S. Armed Forces, including:
- The Right of Innocent Passage, which allows ships to transit through foreign territorial seas without providing the coastal State prior notification or gaining the coastal State’s prior permission.
- The Right of Transit Passage, which allows ships, aircraft, and submarines to transit through, over, and under straits used for international navigation and the approaches to those straits.
- The Right of Archipelagic Sealanes Passage, which, like transit passage, allows transit by ships and aircraft through, over, and under normal passage routes in archipelagic states, such as Indonesia.
- The right of high seas freedoms, including overflight and transit within the Exclusive Economic Zone.
Quicktabs: Arguments
To date, U.S. military forces have successfully protected American shipping and the homeland from sea-based attack without the benefits of the convention. Why is it imperative to join the convention now? What does the convention provide that distinguishes it from existing treaties and the customary international law upon which the United States has depended for the past five decades?
In short, the convention provides the protection of binding international law in four categories of essential navigation and overflight rights. Together, these rights ensure the strategic and operational mobility of U.S. military forces and the free flow of international commerce at sea. Joining the convention guarantees that 156 states recognize the following basic rights of U.S. military forces, commercial ships, civilian aircraft, and the foreign-flagged vessels that carry commerce vital to U.S. economic security:
- Right of Innocent Passage. The surface transit of any ship or submarine through the territorial seas of foreign nations without prior notification or permission.
- Right of Transit Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over straits used for international navigation, and the approaches to those straits.
- Right of Archipelagic Sealanes Passage. The unimpeded transit of ships, aircraft, and submerged submarines in their normal modes through and over all normal passage routes used for international navigation of “archipelagic waters,” such as those claimed by the Philippines and Indonesia.
- Freedom of the High Seas. The freedoms of navigation, overflight, and use of the seabed for laying undersea cables or pipes on the high seas and within the exclusive economic zone of a coastal state.
The United States might react to these coastal state navigational restrictions in four possible ways.32 First, it could acquiesce in them, a reaction that would significantly restrict navigational freedoms important to the United States. Second, the United States could continue to assert, via diplomatic channels, a customary international law right to navigation, backing up its assertions with naval exercises. Although the United States has been following this practice since 1979 under its Freedom of Navigation Program, this option is expensive. It is expensive in terms of dollars, potential confrontations, and prejudice to other U.S. interests in the coastal state.33 Furthermore, this option may not contribute to a stable legal regime, since some U.S. claims under customary international law could compete with coastal state assertions of different emerging rules of customary international law. Third, the United States could negotiate bilateral treaties to preserve U.S. navigational rights in other states' coastal zones. This option is also expensive. Small states, not interested in sailing their vessels or conducting military exercises in U.S. waters, would expect other new military, economic, or political concessions in exchange for allowing the United States to conduct military exercises or navigate in their coastal zones. Finally, the United States could accept the multilateral Law of the Sea Convention. With respect to navigation rights, this treaty provides a stable legal base from which to promote freedom of navigation rules. Its written and hard-to- change rules, though not always highly determinate, at least narrow the range of disputes over permissible and impermissible restrictions on navigation. Convention proponents have strong consequentialist arguments to support the position that the Con- vention's freedom of navigation provisions benefit the United States.
Our Navy can better protect the United States and the American people if we join the Law of the Sea Convention.
The Law of the Sea Convention is the bedrock legal instrument for public order in the world’s oceans. It codifies, in a manner that only binding treaty law can, the navigation and overflight rights, and high seas freedoms that are essential for the global strategic mobility of our Armed Forces, including:
- The Right of Innocent Passage, which allows ships to transit through foreign territorial seas without providing the coastal State prior notification or gaining the coastal State’s prior permission.
- The Right of Transit Passage, which allows ships, aircraft, and submarines to transit through, over, and under straits used for international navigation and the approaches to those straits.
- The Right of Archipelagic Sealanes Passage, which, like transit passage, allows transit by ships and aircraft through, over, and under normal passage routes in archipelagic states, such as Indonesia.
- The right of high seas freedoms, including overflight and transit within the Exclusive Economic Zone.
Innocent Passage, Transit Passage, and Archipelagic Sealanes Passage are the crown jewels of navigation and overflight. These rights are vital not just to our Navy, but also to our Army, Air Force, Marine Corps, and Coast Guard. They make it possible to move vast quantities of war materiel through the Straits of Gibraltar, Singapore, Malacca, and Hormuz and into the Arabian Gulf to Soldiers, Sailors, Airmen, and Marines in Iraq. These rights permit us to move our submarine fleet through choke points to conduct all missions. They permit the United States Air Force to conduct global missions without requirement to overfly foreign national airspace. And they ensure the uninterrupted flow of commerce to and from our shores.
National security interests were paramount in crafting the final text of the Convention, so it is unsurprising the treaty framework promotes regional stability, optimizes maritime strategic mobility, and yields other national security benefits. At home, the Convention supports strong flag and port state security measures and ensures the exercise of sovereignty in the territorial sea. The Convention also provides the most effective means to exercise U.S. leadership to shape the management and development of law of the sea. Abroad, the Convention facilitates combined operations with coalition partners through subscription to a common rule set, such as the Proliferation Security Initiative (PSI). The suggestion by some critics that the Convention represents a progressive confrontation of U.S. national security interests has turned historical analysis on its head, as the Convention in fact secured the essential oceans interests of the maritime powers. Senator Richard Lugar called the criticism of these “amateur admirals”15 factually and historically incorrect, and focusing on spurious concerns over vague losses of U.S. sovereignty.16 During the negotiations, the United States closely coordinated with the other major maritime powers— the Soviet Union, Japan, the United Kingdom and France—to accommodate high seas freedoms.17 These states, and particularly the superpowers, demonstrated a repeated willingness to go against their usual clients and allies in favor of positions supported by the maritime powers. The politics of the negotiations reflected national interest as a function of geography, rather than superpower politics or North-South differences. The cornerstone of this coordination was achievement of the provisions protecting freedom of navigation. In the end, essentially all of the maritime security benefits of the Convention are rooted in preserving maximum freedom of the seas.
One of our most important objectives in seeking a universally ratified Law of the Sea Convention is to put a stop to the erosion of high seas freedoms in coastal areas that characterized the development of customary international law in the twentieth century. There is no reason to believe this erosion will not continue in the absence of a treaty restraint. In my opinion, the most plausible way to block the gradual erosion of high seas freedoms in the exclusive economic zone, and its eventual transformation into something much more like a territorial sea, is a widely ratified Law of the Sea Convention to which the United States is party, and with respect to which the voice and practice of the United States are prominent authoritative evidence of what the Convention means.
For operational planners, the essential question is not what we think our rights are, but what foreign governments think. We need the greatest possible influence over the perception of foreign governments regarding the source, legitimacy, and content of their obligations to respect our high seas freedoms, especially in their exclusive economic zones. We achieve that best by becoming party to the Convention. The alternatives are likely to be both less effective and more costly.
The National Strategy for Maritime Security (NSMS) identifies freedom of the seas as a “top national priority.”26 Naval forces depend upon global strategic mobility and tactical maneuverability to conduct the spectrum of sea-air-land operations in pursuit of the national interest, and these operations include:
- operating the most survivable component of nuclear deterrence, ballistic missile submarines (SSBNs);27
- conventional global strike;28
- air and missile defense;29
- information operations;30
- sea and land direct attack with missiles, naval gunfire and aircraft;
- crisis and disaster response, such as tsunami relief;31
- maritime homeland security;32
- amphibious and expeditionary operations in littoral areas;33
- insertion of special operations forces (SOF) for missions such as counterinsurgency and counterterrorism;34
- constabulary functions and maritime security operations (MSOs) such as counterdrug operations35 and piracy repression;”36
- counter proliferation operations such as the Proliferation Security Initiative (PSI) and the Protocols to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA);37
- exercise of the right of approach, approach and visit, maritime interception operations (MIO) and visit, board, search and seizure (VBSS);
- naval control and protection of shipping (NCAPS);38 exercise of sea lines of communication (SLOCs) through the global supply chain and strategic supply;
- sea control;39 anti-access and sea denial strategies such as mining; civil-military affairs;40
- security cooperation and peacekeeping;41 and forward presence.42
In addition to securing the homeland, the exercise of these military activities ensures and relies on U.S. command of the global commons, which means the United States is readily able to insert power anywhere throughout the globe.43 The Chief of Naval Oper- ations has said assuring access to the oceans and preserving the freedom to conduct naval operations is directly related to deterring war, or, if necessary, winning it.44
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.
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
Security. As the world’s foremost maritime power, our security interests are intrinsically linked to freedom of navigation. We have more to gain from legal certainty and public order in the world’s oceans than any other country. Our forces are deployed throughout the world, and we are engaged in combat operations in Central and Southwest Asia. The U.S. Armed Forces rely on the navigational rights and freedoms reflected in the Convention for worldwide access to get to the fight, sustain our forces during the fight, and return home safely, without permission from other countries.
In this regard, the Convention secures the rights we need for U.S. military ships and the commercial ships that support our forces to meet national security requirements in four ways:
- by limiting coastal States’ territorial seas -- within which they exercise the most sovereignty -- to 12 nautical miles;
- by affording our military and commercial vessels and aircraft necessary passage rights through other countries’ territorial seas and archipelagoes, as well as through straits used for international navigation (such as the critical right of submarines to transit submerged through such straits);
- by setting forth maximum navigational rights and freedoms for our vessels and aircraft in the exclusive economic zones of other countries and in the high seas; and
- by affirming the authority of U.S. warships and government ships to board stateless vessels on the high seas, which is a critically important element of maritime security operations, counter-narcotic operations, and anti-proliferation efforts, including the Proliferation Security Initiative.
Critics of ratification argue that U.S. military flexibility under the Convention is compromised because it will need to bend to the will of Convention guidelines.162 As discussed above, however, Convention provisions enhance flexibility by allowing access to a vast array of territorial seas.163 Additionally, the U.S. military enthusiastically supports the Convention, giving it perhaps the strongest endorsement in the interest of national security.164 Admiral Vern Clark, Chief of Naval Operations, in 2004 stated"Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ], “I fully support the Convention because it preserves our navigational freedoms, provides the operational maneuver space for combat and other operations for our warships and aircraft, and enhances our own maritime interests.”165"Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ] Furthermore, the Vienna Convention, which governs international treaties, provides that where a state’s national security is threatened (or circumstances fundamentally change) it may suspend its obligations under a treaty.166 In the unlikely event that the Convention inhibits the United States from ensuring national security, the U.S. would be no worse off since it would not be bound by the Convention in those instances.