Alone And Unafraid?

The security and prosperity of the United States is heavily dependent on access to the “global commons,” which includes international waters, international airspace, space, and non-sovereign cyberspace. The United Nations Convention on the Law of the Sea (UNCLOS) is the body of international law largely responsible for governing behavior in the international maritime environment. The US has neither signed nor ratified UNCLOS because it lacks the requisite Senate support to elevate UNCLOS to treaty status. Nevertheless, the US recognizes UNCLOS as customary international law, adhering to UNCLOS norms through a “general and consistent practice motivated by a sense of legal obligation.”

UNCLOS ratification enjoys wide support among US policymakers, including the support of the former Judge Advocate General of the US Navy (USN) and retired Vice Admiral James W. Houck, who advocates for ratification on security grounds in a recent article, “Alone On A Wide Wide Sea: A National Security Rationale For Joining The Law Of The Sea Convention.” Houck asserts that a changing geopolitical environment coupled with interpretive disagreement over certain provisions in existing maritime law should motivate the US to ratify UNCLOS. He posits that ratification would ensure the US a seat at the table in deliberations with China and others who have challenged the conventional interpretation of existing maritime law.

One interpretation of UNCLOS, held by the US and many others, is that all nations have a right to exercise free navigation, over-flight, and other high seas freedoms in Exclusive Economic Zones (EEZ). EEZs are “waters beyond a nation’s territorial sea extending a maximum of 200 nautical miles from the coast” where nations maintain exclusive rights over most marine resources. These freedoms permit the USN to patrol the waters surrounding China and other nations in order to meet its national security mandate. An alternate interpretation, held by China and others, is that the EEZ is within a coastal state’s sovereign domain and that foreign vessels require permission prior to. China has aggressively advanced this position, deploying Chinese naval warships to confront USN ships in 2001 and 2009 and launching a Chinese fighter to intercept a USN reconnaissance aircraft in 2001. That intercept resulted in a collision between the two aircraft forcing the US aircraft to make an emergency landing at a nearby Chinese military base.

Houck acknowledges that, to date, the US has successfully enforced its interpretation of UNCLOS, but he cites China’s naval modernization, secrecy about its intentions, and persistent and aggressive challenges to the existing maritime legal regime as a harbinger of an impending showdown. Moreover, as a non-party to the UNCLOS treaty, the US possesses no formal mechanism to challenge amendments to UNCLOS advanced by China. Whereas if the US were a party to the treaty, it would not only gain the power to challenge amendments, but also retain the right to reject post-accession amendments, which would require the president’s signature and Senate ratification.

If the United States became a party to the treaty, Houck believes it would be able to diffuse some of the mounting tension through established institutional channels. He concludes that it is better to have a seat at the negotiating table than to remain idle while China uses its burgeoning influence to shape the law in ways disadvantageous to US national security interests.

Feature Photo: cc/U.S. Department of Defense Current Photos