The ink was barely dry on President George W. Bush’s statement in mid-May about joining the community of nations by ratifying the U.N. Convention on the Law of the Sea (UNCLOS) when a chorus of Cassandras began to wail against U.S. accession. “A fateful mistake” Frank J. Gaffney Jr., wrote in a Washington Times op-ed. Perennial UNCLOS challenger Henry Lamb posted an article on the Canada Free Press Web site, urging Americans to “stomp this thing to death, cut off its head, and bury it deep.” Even the John Birch Society weighed in, citing a variety of flaws that offend the “GOP faithful.” Reality, however, is somehow different. A few of the UNCLOS myths that most directly affect America’s sea services are exposed here:
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 1,000-ship navy and a variety of international governance regimes for the good order and security of the maritime commons.
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 200-mile 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 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 4: The Convention will prohibit or impair U.S. intelligence and submarine activities. Also not true, as hearings in 2004 before the Senate Select Committee on Intelligence made clear. Witnesses from the Defense Department, CIA, and Department of State confirmed that U.S. intelligence and submarine activities are not adversely affected by the Convention––which we already follow unofficially––and would not be adversely affected by formal U.S. ratification.
Myth 5: The Convention came into force before 9/11 and undermines what the U.S. must do to safeguard citizens, interests, and friends worldwide. On the contrary, the Convention enhances America’s ability to wage the war on terror. The maritime, naval, and aviation mobility so essential for U.S. military forces to operate effectively is assured by the Convention. It provides the necessary stability and the framework for U.S. forces to carry out operations––including to interdict, search, and seize––against non-traditional, non-military challenges, as well as traditional military threats, without any barriers.
Myth 6: UNCLOS is a “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.
Myths?
Busted!
Dr. Truver has written on LOS issues and concerns since his first book on the subject, The Strait of Gibraltar and the Mediterranean (Sijthoff and Noordhoff, 1980).