Odd Man Out at Sea: The United States and UNCLOS

By Thad W. Allen, Richard L. Armitage, and John J. Hamre. This post originally appeared this morning as an op-ed in the New York Times.

It’s been in place for nearly 30 years; nearly 160 countries (plus the European Union) have signed it. But the United States has yet to ratify the United Nations Convention on the Law of the Sea. As a result, the United States, the world’s leading maritime power, is at a military and economic disadvantage.

The convention codifies widely accepted principles on territorial waters (which it defines as those extending 12 miles out to sea), shipping lanes and ocean resources. It also grants each signatory exclusive fishing and mining rights within 200 miles of its coast (called the exclusive economic zone).  Although the United States originally voted to create the convention and negotiated many provisions to its advantage, Congress has never ratified it.

With nearly 12,500 miles of coastline, 360 major commercial ports and the world’s largest exclusive economic zone, the United States has a lot to gain from signing the convention. It is the only legal framework that exists for managing international waters; joining it would allow us to secure international recognition of a claim to the continental shelf as far as 600 miles beyond our exclusive economic zone in order to explore and conserve the resource-rich Arctic as the polar ice cap recedes. It would also provide American companies with a fair and stable legal framework to invest in mining projects in the deep seabed.

Ratification makes sense militarily as well. According to the Joint Chiefs of Staff, the convention “codifies navigation and overflight rights and high seas freedoms that are essential for the global mobility of our armed forces.” In other words, it enhances national security by giving our Navy additional flexibility to operate on the high seas and in foreign exclusive economic zones and territorial seas. This is particularly important in the Asia Pacific region and the South China Sea, where tensions among China, Japan and Southeast Asian nations have increased because of conflicting interpretations of what constitutes territorial and international waters.

Perhaps most important of all, ratification would prove to be a diplomatic triumph. American power is defined not simply by economic and military might, but by ideals, leadership, strategic vision and international credibility.

Of course, there are those who would prefer that we have nothing to do with the United Nations, who believe that international treaties hurt our national interests and restrain our foreign policy objectives.

All three of us have struggled while working with and through international organizations — they are unwieldy and not always responsive to American interests. But as we see in Libya today, the United Nations and other international alliances are indispensable in providing legitimacy and reinvigorating American partnerships in times of crisis. And they will ensure needed balance as rising powers inevitably challenge America’s economic and military strength.

Last July, Secretary of State Hillary Rodham Clinton gained much respect by reassuring the Southeast Asian nations that the United States strongly supported multilateral efforts to address those territorial disputes in the South China Sea, and denounced China’s heavy-handed, unilateral tactics. But strong American positions like that are ultimately undermined by our failure to ratify the convention; it shows we are not really committed to a clear legal regime for the seas.

For all of these reasons, ratification is more important today than ever before. At a time when America’s military and economic strengths are tested, we must lead on the seas as well as on land.

Thad W. Allen, a senior fellow at Rand, was the commandant of the Coast Guard from 2006 to 2010. Richard L. Armitage, the president of a consulting firm, was the deputy secretary of state from 2001 to 2005. John J. Hamre, the president of the Center for Strategic and International Studies, was the deputy secretary of defense from 1997 to 2000.

John Hamre

John Hamre

Dr. John J. Hamre is president and CEO, Pritzker Chair, and director, Brzezinski Institute on Geostrategy at CSIS. Before joining CSIS, he served as the 26th U.S. deputy secretary of defense.


1 comment for “Odd Man Out at Sea: The United States and UNCLOS

  1. Syed Mahmud Ali
    April 25, 2011 at 13:16

    Admiral Allen and Secretaries Armitage and Hamre make several excellent points and their commentary is a welcome addition to the Asia-Pacific maritime security discourse. As they point out, with claimants to segments of the maritime space in the South China Sea and the East China Sea becoming more assertive in proclaiming their rights, having all user-states adhere to a single internationally accepted legal framework can only help. As they note, with the system-manager, and the world’s mightiest maritime power, the USA, remaining outside the remit of the UNCLOS framework, the capacity of this Convention to provide the space for adjudicating complex overlapping claims is significantly attenuated. US ratification of UNCLOS should, as the authors point out, strengthen a regime enabling disputants to address, if not resolve, their overlapping claims in ways not necessitating the threat or application coercive power. As the authors suggest, universal adherence to the UNCLOS should enhance the system-manager’s moral standing and power of persuation in managing complex disputes.

    However, the commentary appears to have begged a couple of questions which need to be addressed while examining the Asia-Pacific maritime security milieu. The first is about the meaning, purpose and import of the clauses and terms used by the drafters of the UNCLOS. As we’ve seen in the wake of the EP-3 vs. J-8II collision near Hainan in April 2001, and more recently after the ‘Impeccable/Victorious incidents,’ the crucial disputation revolves around differences between the USA and China. These two powers – one having enjoyed virtually unlimited freedom of naval access in the Western Pacific (as indeed elsewhere) for decades, especially since the Soviet Pacific Fleet stopped posing a challenge to the US Pacific Command, and the other increasingly reluctant to allow apparently adversarial forces to operate close to its own shores after having had no means to prevent such operations – are now conjoined in a spiralling insecurity dilemma. The dialectic is perhaps best seen in the People’s Liberation Army’s anti-access/area-denial capabilities being operationalised and the US Navy and Air Force rolling out the ‘AirSea Battle’ operational concept with a view to neutralising precisely those capabilities so as to restore US primacy across the Western Pacific. This why how the USA and China implement the UNCLOS or refuse to do so will determine the region’s maritime security future, not US ratification of the UNCLOS per se.

    Interpretations of some of the UNCLOS clauses vary widely between the USA and China. The UNCLOS grants non-littoral user states the right to conduct ‘innocent passage’ across littoral state’s exclusive economic zones. The USA insists, even as a non-UNCLOS state, that its naval intelligence vessels such as the USNS Impeccable, USNS Bowditch and USNS Victory, often deployed to Chinese EEZ close to Chinese naval facilities, have every right to conduct their business in these ‘international waters.’ The Chinese beg to differ, and increasingly robustly. They point to the ‘motive’ of the US naval vessels in snooping around China’s national defence installations and describe these operations as anything but ‘innocent passage.’ Beijing also notes UNCLOS’s other clause which urges non-littoral user states to respect the interests and legal regimes of respective littoral states when navigating across a country’s EEZ, and points to its own maritime laws which forbid foreign powers from conducting adversarial activities such as maritime espionage. This is not a view popular with the US PACOM, or indeed with any US allies and partners in the region.

    Such stark differences over interpretations of the UNCLOS’s terms suggest that US ratification of the UNCLOS might help, but would not resolve the fundamental insecurity dialectic colouring Sino-US security dynamics in the transitional fluidity currently abroad at the systemic level.

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