- The ideological, political, and economic issues that drove the United States to reject the Convention have been swept away by dramatic changes in the global arena since 1982.
- Substantial changes have been made to Part XI of the Convention, the section concerning deep-seabed mining, which the United States found objectionable. The amended Convention gives the United States at least as much—and perhaps more—than it originally sought in this area.
From a national security perspective, in particular, there are compelling reasons for the United States to accede to the Convention. The nation and the Navy have a stake in the law of the sea and need a fully agreed-on set of rules for the conduct of maritime affairs.
The new U.S. security equation strongly suggests the need for a stable oceans environment. Documents such as the President's National Security Strategy of Engagement and Enlargement and the Chairman of the Joint Chiefs of Staff's National Military Strategy of Flexible and Selective Engagement place a premium on worldwide mobility and flexibility and depend on the complementary strategic concepts of overseas presence and power projection. Both these concepts presuppose our ability to operate freely on, over, and under the oceans.
Focusing specifically on the Navy and Marine Corps, the white paper "Forward . . . from the Sea" assumes the ability of naval forces to execute power projection and conduct crisis response in littoral regions—precisely the areas that are used most intensively and to which individual states are making increasing claims. Missions set out in "Forward . . . from the Sea" reflect the nation's still-global interests, and include a broad and challenging range of roles: presence, strategic deterrence, sea control, crisis response, power projection, sealift, embargoes, counter-narcotics operations, and humanitarian operations. The ability to perform these missions depends on maritime mobility and free access to the world's oceans, including strategic waterways and international straits.
A 1994 Department of Defense white paper, "National Security and the Convention on the Law of the Sea," highlights the importance of a workable Law of the Sea Convention to our oceans policy and national security:
Without international respect for the freedoms of navigation and over-flight set forth in the Convention, exercise of our forces' mobility rights could be jeopardized. Disputes with littoral states could delay action and be resolved only by protracted political discussions. The response time for U.S. and allied coalition forces based away from potential areas of conflict could lengthen. Deterrence could be weakened-particularly when our coalition allies do not have sufficient power-projection capacity to resist illegal claims. Forces may arrive on scene too late to make a difference, affecting our ability to influence the course of events consistent with our interests and treaty obligations.
Customary International Law
Much of the resistance to the United States becoming a party to the U.N. Convention on the Law of the Sea stems from the belief that the Convention will not substantially enhance U.S. interests. The United States, after all, has been largely successful in having its cake and eating it, too: avoiding the deep-seabed mining provisions of the Convention while essentially operating under its favorable navigation provisions. Advocates of the status quo position note the lack of a single overt denial of navigational rights to the United States based on its position of non-accession to the Convention.They also point out that:
- The Convention reflects customary international law, binding on all nations, regardless of whether they have ratified the document.
- The U.S. military has operated in accordance with the Convention's navigational provisions for more than a decade.
- Despite some coastal states' excessive claims, we have protected critical freedoms of commercial and military navigation and overflight and enjoy many of the Convention's other benefits.
- The United States has powerful armed forces and can go wherever and whenever it wants.
These arguments, on the surface, appear to have merit. But there are dangers in relying so heavily on customary international law. Customary law is inherently vague and constantly evolving through a process of claims and counterclaims. Some states, especially newly independent states, do not recognize customary law to the same extent the United States does. They view it as a body of law, much of it formed without their participation and consent, that promotes the interests of developed nations—often former colonial powers—without considering or reflecting those of the developing world.
Bernard Oxman and John Stevenson, key members of the Panel on the Law of Ocean Uses, point out that governments are more inclined to respect obligations to which formal consent has been given and that, even if the Convention is generally reflective of customary international law, there is room for argument about important details.
Finally, customary law is difficult and costly to enforce and maintain. For the Department of Defense—and the Navy in particular—the major concern is freedom of navigation and overflight. Attempting to maintain these vital freedoms against a foreign state's contrary claim presents three expensive choices:
- Resistance, with the potential for prejudice to other U.S. interests in that coastal state, for confrontation or violence, and for domestic discord
- Acquiescence, leading inevitably to a weakening of the U.S. position with respect to other coastal states
- Bilateral negotiation, in which the United States would be expected to offer a political, economic, or military quid pro quo in proportion to its interest in navigation and military activities
Clearly, the diminishing size of the U.S. Navy and the challenges of a growing number of nations to freedom of navigation and overflight make it increasingly important to rely on treaty law rather than customary law.
National Security Benefits
The core rights assured by the Convention include:
The Right of Innocent Passage . This is the right of ships to continuous and expeditious passage that is not prejudicial to the peace, good order, or security of coastal states. No prior notification or authorization is required under the Convention, even though a number of states unilaterally have sought to impose such conditions. In addition, the Convention guarantees this right to all ships, including warships, regardless of government, cargo, or means of propulsion. The Convention codifies this right and contains an exhaustive list of the types of shipboard activities that are forbidden while a ship is engaged in innocent passage.
The Right of Transit Passage . The Convention codifies the navigational regime permitting free and unimpeded transit through and over international straits. More than 153 straits, through which passage would have been severely proscribed or eliminated as a result of the extension of states' territorial seas to 12 nautical miles, remain open to free and unimpeded passage under this regime. These include the strategic straits of Hormuz, Dove, Bab el Mandeb, Gibraltar, and Bonafacio, plus the "shortcuts" through the Philippine and Indonesian archipelagoes. Less restrictive than innocent passage, transit passage provides that ships and aircraft may pass through straits continuously and expeditiously in their "normal mode." Accordingly, submarines may pass through submerged; naval task forces may conduct formation steaming; aircraft carriers may engage in flight operations; and military aircraft can transit without filing flight plans or obtaining a coastal state's permission.
Archipelagic Sea Lanes Passage . This permits transit in the normal mode between one part of the high seas or exclusive economic zone and another part of the high seas or exclusive economic zone through the normal routes used for international navigation or overflight or through International Maritime Organization-approved sea lanes. The right of transit by ships and aircraft through archipelagoes, such as the Philippines, the Bahamas, and Indonesia, can have a significant impact on the ability of military forces to proceed to an area of operations in a timely and secure manner.
High Seas Freedom . The Convention defines the types of activities that are permissible on, under, or over ocean areas beyond a coastal state's territorial sea. Under the principle of "due regard" for the rights of others, U.S. forces remain free to engage in task force maneuvering, flight operations, military exercises, surveillance and intelligence activities, military marine data collection, and ordnance testing and firing.
Sovereign Immunity of Warships and Other Public Vessels and Aircraft . This concept has come under increasing assault by coastal states. The Convention codifies the customary law principle that naval auxiliaries are entitled to the same immunity as warships. To support operations around the globe, there must be assurance that military vessels and their cargoes can move freely, without being subject to levy or interference by coastal states.
A comprehensive, widely accepted and stable regime for the world's oceans that safeguards these rights is vital to U.S. national security. The Law of the Sea Convention guarantees such rights as a matter of universally recognized international law, rather than depending on the sufferance of coastal and island states or on military strength.
The Future of the Law of the Sea Convention
U.S. refusal to accede to the Convention, widely regarded as one of the most important agreements ever negotiated, would raise fundamental questions regarding not only the future legal regime but also the role of the United States with respect to the promotion of international law and order. Viewed less charitably, it could be seen to reflect a belief that unilateralism is a preferred policy alternative when backed by sufficient military force. Conversely, full participation in the Law of the Sea Convention ultimately provides the United States with an opportunity to exercise world leadership in an area of increasing importance to the community of nations.
In the end, the United States is a maritime nation tied to the oceans for political, economic, and military purposes. It can only benefit from stability in laws preserving navigational freedoms; and this stability can best be protected by a widely accepted Law of the Sea Convention. Accession will not be a panacea—its rules are not perfect—but widespread adherence is likely to increase order and predictability, facilitate adaptation to new circumstances, encourage accommodation of interests, and narrow the scope of disputes and provide the means to resolve them.
The United States should seize the initiative and act favorably on the Convention.
Captain Galdorisi is Chief of Staff for Cruiser-Destroyer Group Three, embarked in the carrier Abraham Lincoln (CVN-72). He has commanded LAMPS Mk III squadrons HSL-41 and HSL-43, the amphibious assault ship Cleveland (LPD-17), and Amphibious Squadron Seven. He recently completed a book, Beyond the Law of the Sea: New Directions for U.S. Oceans Policy (Praeger, 1997), on this topic.