All of the uniformed services--and especially the U.S. Navy--are
solidly behind UNCLOS. American military leaders have always been
discriminating when it comes to treaties, traditionally resisting those
(like the Rome Statute of the ICC) that might put U.S. servicemen and
women at risk. But they support UNCLOS because it will enable,
rather than complicate, their mission. Because the United States was the
principal force behind the negotiation of UNCLOS, it contains
everything the U.S. military wants, and nothing that it fears.
The treaty's primary value to the U.S. military is that it
establishes clear rights, duties, and jurisdictions of maritime states.
The treaty defines the limits of a country's "territorial sea,"
establishes rules for transit through "international straits," and
defines "exclusive economic zones" (EEZs) in a way compatible with
freedom of navigation and over-flight. It further establishes the
"sovereign inviolability" of naval ships calling on foreign ports,
providing critical protection for U.S. vessels. More generally, the
treaty allows states party to exempt their militaries from its mandatory
dispute resolution provisions--allowing the United States to retain
complete military freedom of action. At the same time, the treaty does
nothing at all to interfere with critical U.S.-led programs like the
Proliferation Security Initiative (PSI). Nor does it subject any U.S.
military personnel to the jurisdiction of any international court.
Some have argued that UNCLOS has already become "customary
international law," and thus the United States has little to gain from
formal accession. But custom and practice are far more malleable and
subject to interpretation. Other states may soon push the Law of the Sea
into new, antithetical directions if the United States does not ratify
the treaty. China, a party to UNCLOS, rejects U.S. interpretations of
the treaty's freedom of navigation provisions, and continues to assert
outlandish claims to control over virtually the entire South China Sea.
But it is hardly alone. Countries as diverse as Brazil, Malaysia, Peru,
and India have resisted freedom of navigation within their EEZs, in
contravention of their obligations.
As it has for years, the United States Navy regularly conducts
Freedom of Navigation Operations (so-called FONOPS) to challenge
excessive claims of territorial exclusivity. But as non-party to the
treaty, the United States lacks any legal standing to bring its
complaints to an international dispute resolution body. More broadly,
U.S. Navy and Coast Guard officials complain, non-membership complicates
everyday bilateral and multilateral cooperation with scores of
If these security benefits were not enough, the U.S. business
community is unified in its support for the treaty for two reasons.
First, UNCLOS would protect U.S. rights to sole commercial exploitation
to all resources on and under its extended continental shelf (that is,
beyond two hundred miles). This area--estimated to be twice the size of
California--is rich in oil, gas, and other exploitable resources. Second,
accession to the treaty would allow the United States to sponsor its
own national companies to engage in deep sea-bed mining. Last week, the
chairman of Lockheed Martin sent a strongly worded letter to the Senate
saying his company wanted to join the race for undersea riches, but
could not assume investment risks until it was clear that it would have a
clear legal title to its findings.