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The United States does. To support our national security strategy, we must have a strong and effective oceans policy that preserves traditional freedoms of navigation and overflight—pictured here is the USS Alaska (SSBN-732), whose ability to roam the seas unimpeded and undetected is key to strategic deterrence—and recognizes the need to be a party to the U.N. Convention.
■or more than a century, the United States has been at the forefront of international deliberations on rules
__ regarding the use of the oceans. Beginning with the
International Law Association in 1873, continuing wit the League of Nations immediately after World War I, and especially with the United Nations for almost a halfcentury, the United States has been an active participant in the development of an orderly regime of international law for the world’s oceans.1
Deliberations at the Third U.N. Conference on the Law of the Sea—which convened in 1973—involved the most extensive worldwide negotiating effort to date and resulted in the 1982 Law of the Sea Convention. This comprehensive, 150-page agreement addresses virtually every aspect of ocean use, including straits passage, territorial seas claims, exclusive economic zones, marine scientific research, and high seas activities.2
In July 1982, the United States announced it would not sign this Convention. President Ronald Reagan reaffirmed that decision in a 10 March 1983 statement on U.S. oceans policy, stating that this determination was based on U.S. concerns with the regime established for mining of the deep seabed.' The statement went on to indicate, however, that the United States considered those “provisions with respect to traditional uses of the oceans” to “generally confirm existing maritime law and practice and fairly balance the interests of all states”—that is, they represented existing and emerging customary international law.4
To much of the world, it appeared that the United States wanted to select certain benefits of the Convention without accepting the negotiated compromise positions of the
Convention “package.”5 International reaction to the U.S. position was swift and negative, particularly in the Third World.6
Since then, through both formal and informal means, the United States has done some fence mending. In an April 1990 letter to the U.N. Secretary-General, then-Secretary of State James Baker commented that a universally acceptable Law of the Sea Convention is a “goal we all share.” During a 23 September 1991 address to the U.N. General Assembly, President George Bush made special note of a “Pax Universalis . . . characterized by rule of law rather than the resort to force, the cooperative settlement of disputes rather than anarchy and bloodshed.”7
More specific efforts to reach accommodation on the Convention also were going on in other fora. Every year the U.N. General Assembly reviews the progress in bringing the Convention into force. Past resolutions contained language the United States felt obliged to vote against. In 1991, however, the language of the annual General Assembly resolution was revised after careful negotiations to be more acceptable to the United States. In recognition of this, Ambassador Pickering was able to abstain, rather than vote against the resolution. The conciliatory language of Ambassador Pickering’s remarks signaled the Bush administration’s willingness to work toward a final resolution of the Convention.8
Is reaching agreement and becoming a party to the Convention important enough to the United States that it should be a major policy goal of the Clinton administration? The answer is a resounding yes.
Current U.S. Oceans Policy and National Security
The National Security Strategy of the United States, first articulated by President Bush at the Aspen Institute on 2 August 1990, rests on the four pillars of strategic deterrence, forward presence, crisis response, and force reconstitution.9 The key tenet of U.S. oceans policy—the maintenance and preservation of traditional freedoms of navigation and overflight—is vital to implementing this strategy.
The credibility of the ballistic missile submarine and strategic bomber in our strategic deterrence nuclear triad is dependent, in large measure, on the routine exercise of freedom of navigation and overflight as a matter of right. For example, submerged transit of international straits permits Trident submarines to roam the seas unimpeded and undetected. And overflight of oceans and straits ensures U.S. strategic aircraft unrestricted access to international airspace worldwide.
Forward presence depends on the temporary or permanent deployment of U.S. air, land, and sea forces in allied and friendly nations and in the international waters and airspace adjacent to areas of potential conflict. These forces cannot be projected overseas and supported without the assurance that critical sea and air lines of communication will remain open as a matter of international legal right—not at the sufferance of coastal and island nations along the route and in theater.
Credible crisis response requires capable and ready forces and the ability to bring those forces to beat promptly, at the time and in the place where they will be most effective. This is premised upon the continued international respect for freedoms of navigation and overflight.
Should force reconstitution be required in any future conflict, extensive sealift and airlift would be necessary to deploy and sustain those forces. For Desert Storm, for example, more than 9 million tons of cargo were transported to the Gulf. This level of effort could not have been sustained without unimpeded navigation on and over the world s oceans and through international straits.10
Clearly, U.S. military strategy for the 1990s and beyond is critically dependent upon the maintenance of freedoms of navigation and overflight. Although these rights are embodied in the 1982 Law of the Sea Convention, the United States, as a nonsignatory (and nonparty when it goes into effect), may not benefit from the full extent of these articulated freedoms. Instead, the United States will be required to continue to maintain that the navigational articles of the Convention embody the principles of customary international law that are binding on all countries, whether or not they become parties to the Convention and whether or not the Convention actually enters into force.
There are problems with relying exclusively on customary international law. Such “law” is inherently unstable, malleable, and often fuzzy around the edges. Furthermore, many developing countries reject the concept of customary international law. They view it as a body of law, frequently formulated without their participation and consent, that promotes the values and protects the interests ot the developed nations (often former colonial powers) without fully considering and reflecting those of the developing world. Thus, many of these nations steadfastly maintain that the benefits of the 1982 Law of the Sea Convention are strictly contractual.
The United States has created mechanisms to deal with disagreements over customary international law. The principal tool used to safeguard U.S. navigation and overflight rights is the Freedom of Navigation (FON) Program. This program, lormally initiated by the Carter administration in 1979 and continued under Presidents Reagan and Bush, combines diplomatic action and operational assertion of our navigational rights by means of exercises to discourage state claims inconsistent with the 1982 Law of the Sea Convention and to demonstrate U.S. resolve to protect navigational freedoms.11
On the diplomatic level, the Department of State conducts bilateral consultations with coastal states stressing the need for, and obligation of, all states to adhere to the customary rules and practices reflected in the 1982 Convention. In addition, the State Department files diplomatic protests addressing specific maritime claims that are inconsistent with international law. Since the inception of the FON program, more than 100 such protests have been filed by the United States.12
In conjunction with diplomatic initiatives by the Department of State, the Department of Defense conducts operational assertions by U.S. naval and air forces of internationally recognized navigational rights and freedoms.
Since 1979, U.S. military ships and aircraft have exercised their rights and freedoms in all oceans against the objectionable claims of more than 35 countries at the rate of some 30-40 per year.[1]
Throughout the 1980s, the U.S. oceans policy agenda supported our National Security Strategy. The United States has supported the principal tenets of the 1982 Law of the Sea Convention and has proceeded under the assumption that the “acceptable” portions of the Treaty would be recognized as customary international law by the community of nations.
Where nations continued to Press excessive claims, the United States used diplomatic initiatives and operational assertions to demonstrate its resolve to maintain navigation and overflight rights. But will these policies be effective throughout the 1990s and into the 21st century?
The global sea changes of the last few years call into question the effectiveness of U.S. oceans policy. Events as diverse as the end of the Cold War, the dissolution of the Soviet Union, the concomitant rise of regional powers with high-tech Weapons, the enormous downward pressure on U.S. defense resources, and the growth of political and economic interdependence among nations all signal the need for a serious policy review.
The first challenge to current U.S. oceans policy is that it is out of sync with the policy of Pax Universalis as first envisioned by President Bush and with the emerging new world order premised on the shared responsibility of the international community to defend vital mutual interests. An oceans policy maintained in large measure by a comprehensive protest and assertion program is difficult to reconcile with these concepts. .
The Freedom of Navigation Program also is not without political, economic, and military costs. FON assertions involve a significant commitment of naval and air forces. As our forces are scaled back, the operational flexibility to conduct such FON missions could decrease dramatically—and our friends and allies have not yet demonstrated an interest in joining us in these FON
efforts. . .
At the same time, the United States is dealing with an increasingly diverse number of claims by coastal and island states to sovereignty and jurisdiction over ocean areas that are inconsistent with the terms of the 1982 Law of the Sea Convention. These attempts to convert extensive portions of the high seas to national jurisdiction include, but are not limited to:
► Unrecognized historic waters claims
► Improperly drawn baselines for measuring claims
► Territorial sea claims greater than 12 miles
► Security zones that are not defined in the Convention
► Contiguous zones that are at variance with the Convention provisions
► Exclusive economic zones in which the coastal state purports to negate navigation and overflight rights
>• Archipelagic claims that do not conform to the rules of the Convention
>■ Other categories of excessive claims, including restrictions on innocent passage of the territorial sea, requirements for advance notification or even permission for innocent passage, and additional restrictions on transit passage[2]
These excessive claims are cause for concern, both because they cover the spectrum of maritime possibilities and because they are being made by the full community of nations. For example:
► Argentina, Italy, and Panama have historic bay claims that do not comply with international norms.
>■ Canada, Costa Rica, Portugal, China, North Korea, and Vietnam have significant excessive strait baseline claims.
y Cape Verde, Indonesia, and the Philippines have sought to impose additional restrictions on archipelagic sea lanes passage.
> Pakistan, Djibouti, Egypt, China, North Korea, Indonesia, and the Philippines have articulated various nonconforming restrictions on innocent passage.
y Spain, Argentina, Italy, and Canada have sought to impose restrictions on straits used for international navigation.
► Ecuador and Peru have restrictions on aircraft overflight inconsistent with the Convention.[3][4] [5] [6] * [7] 15 [8]
Continuous U.S. challenges to these diverse and numerous claims will require enormous effort. Many of the nations making these claims assert that the Convention is a legal contract, the rights and benefits of which are not necessarily available to nonparties. Counterassertions by the United States that these rights and benefits are embodied in customary international law will be difficult to sustain.
Finally, the United States must reexamine its position in light of the end of the era of U.S. global hegemony. Regimes such as the Law of the Sea may offer the United States an opportunity to provide world leadership without hegemony.[9] By actively providing “leadership for peace” in the politically and economically important area of maritime laws and regulations, the United States could ensure itself a major role in shaping a new global order in which it would continue to be the dominant power.[10] Continuing our challenges to other nations, no matter how valid those challenges may be, is perhaps not the best way to position ourselves to assume this leadership for peace.
Time to Review the Treaty
It is time for a comprehensive review of the U.S. position on the Law of the Sea Convention. The Convention will certainly enter into force within the next few years. As of January 1993, there had been 52 instruments of ratification and two accessions.[11] Should six more nations ratify or accede to the Convention, the United States may find itself looking in at a completed process, and our opportunity for any further leverage, let alone leadership, will be forfeited. The United States can continue to go it alone if necessary, but that will require additional political cost and military risk.
The changing situation in deep-seabed mining also should encourage the United States to accede to the treaty. Most of the predictions of a major boom in the mining of cobalt, manganese, nickel, and copper from the deep seabed nodules were decades early.[12] The likelihood of economically feasible deep-seabed mining occurring in the next several decades appears remote.[13]
If the United States can overcome the deficiencies of the deep-seabed mining provisions of the Convention and support the law of the sea regime, it will help ensure a comprehensive, widely accepted, and stable legal regime for the world’s oceans, which will safeguard the navigation and overflight rights essential to the U.S. National Security Strategy. In addition, this initiative would strengthen our hand in dealing with other wide-ranging ocean issues, such as the environment and counterdrug operations.
The long-term stability of the oceans, which U.S. security interests require, can best be met by a comprehensive and widely accepted Law of the Sea Convention. Codification of existing and emerging rules of customary international law into a single, comprehensive Convention of universal application clearly is preferable to the uncertainties associated with unilateral assertions of rights premised on the process of claim and counterclaim of customary international law.
There has been a general trend toward harmonizing state practice with the Convention. What is needed now is universal acceptance of the 1982 U.N. Convention on the Law of the Sea, appropriately revised to overcome its deep-seabed mining deficiencies.[14] Such universal acceptance would press coastal state practice into increasing conformity with agreed international norms and should reduce substantially the need to assert U.S. navigation and overflight rights in the face of excessive claims.
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'R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester, U.K.: Man- C Chester University Press, 1983), p. 17. * c
’James Malone, “Who Needs the Sea Treaty,” Foreign Affairs, Spring 1984, p. 44. 11
'President Ronald Reagan, statement before the House Merchant Marine and Fish- ^
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Captain Galdorisi is the commanding officer of the USS Cleveland (LPD-7). He js a helicopter aviator, having previously commanded LAMPS Mk III squadrons HSL-43 and HSL-41, and a graduate of the Naval War College and the MIT Sloan School’s Program for Senior Executives. He holds masters degrees in oceanography and international c relations. ' r
"Department of State Publication 112, Limits in the Seas: United States Responses to Excessive Maritime Claims (Washington, D.C.: U.S. Government Printing Office, 1992), p. 1.
"Council on Ocean Law. Oceans Policy News, May 1992, p. 4.
IJLimits in the Seas, p. 2.
[2]Limits in the Seas, p. 5.
eries Committee on 29 January 1982 in Law of the Sea, Jan-Feb 1982 (Washington, D C.: Department of State, Current Policy No. 371, 1982), p. 3.
’Panel on the Law of Ocean Uses, “U.S. Interests and the United Nations Convention on the Law of the Sea,” Ocean Development and International Law, Vol- 21, 1990, pp. 373-410.
’Ronald Reagan, “Presidential Statement on Ocean Policy,” The White House,
[4] March 1983.
M.K. Sebenius, Negotiating the Law of the Sea (Cambridge, MA: Harvard University Press, 1984), p. 93.
’Excerpts from George Bush’s address to the General Assembly: For a “Pax Universalis.” The New York Times, 24 September 1991, p. A14.
’Council on Ocean Law, Oceans Policy News, Nov-Dec 1991, p. 2.
National Security Strategy of the United States (The White House, U.S. Government Printing Office, 1992), p. 1.
10 Law of the Sea—1990s and Beyond,” remarks by William L. Schachte, Jr., Department of Defense Representative for Ocean Policy Affairs, before the International Law of the Sea Conference, Valparaiso, Chile.
“Statement by President George Bush, “The Possibility of a New World Order: Unlocking the Promise of Freedom,” Vital Speeches of the Day, Vol. 57, No. 15 (15 May 1991), pp. 450-457.
“Limits in the Seas, pp. 4-75. See also Cdr. Sam Bateman, RAN, “Build a West- Pac Naval Alliance,” U.S. Naval Institute Proceedings, January 1993, p. 80.
"Panel on the Law of Ocean Uses, p. 373.
"Joshua Goldstein, Long Cycles: Prosperity and War in the Modern Age (New Haven, CT: Yale University Press, 1988), p. 268.
Report of the Secretary-General: Progress Made in the Implementation of the Comprehensive Legal Regime Embodied in the United Nations Convention on the Law of the Sea, U.N. publication A/47/512, 5 November 1992, p. 3.
- Interviews with mineral analysts at the U.S. Bureau of Mines, Center for Ocean Law Staff, and geological survey analysts at the U.S. Department of the Interior, 26 May 1988.
"Panel on the Law of Ocean Uses, p. 394.
2!Report of the Secretary-General, p. 20.