Can the Obama administration succeed where its predecessors failed on the Law of the Sea treaty?
- By James Kraska<p> James Kraska is Howard S. Levie chair in operational law at the U.S. Naval War College and author of Maritime Power and Law of the Sea. </p> <p> The views presented are his own and do not reflect the official policy or position of the U.S. Navy or the Department of Defense. </p>
Few modern treaties have generated more domestic controversy for less reason than the United Nations Convention on the Law of the Sea. By codifying generous rights and freedoms of navigation throughout the world’s oceans, the treaty promotes global trade, economic prosperity, and naval mobility. It is a commonsense guide to 71 percent of the Earth’s surface, and for that reason it has been accepted by 161 nations, including Russia, China, France, and the United Kingdom. But not the United States
Since the convention took effect in 1994, every U.S. president and Chief of Naval Operations has supported its ratification. In 2004 the Senate Foreign Relations Committee endorsed the Convention by a vote of 19 to 0; and in 2007, it approved the treaty by a vote of 17 to 4. But, because of staunch opposition from a handful of conservatives worried about what they say are threats to America’s sovereignty, the treaty has never come up for a vote before the full U. S. Senate.
Now, the Obama administration is trying to change that. On May 9, Secretary of Defense Leon Panetta and Chairman of the Joint Chief of Staff Army General Martin Dempsey shared the stage at a Washington meeting on the Law of the Sea to explain the strategic benefits of U.S. accession. The case for the treaty has always been strong. The question is why would the administration pursue such a contentious goal now-in the midst of an election cycle?
The answer can be found in the administration’s "strategic pivot" to Asia and the race by Arctic nations to assert offshore resource claims. A Department of Defense strategic review released in January declared that "while the U.S. military will continue to contribute to security globally, we will of necessity rebalance toward the Asia-Pacific region." Last Wednesday, the secretary explained that the United States is at a "strategic turning point" after a decade of war in Iraq and Afghanistan. The Indo-Pacific is the new fulcrum of world politics, and the Law of the Sea is the "firmest legal foundation upon which to base our global presence on, above, and below the seas. By joining the Convention, we would help lock in rules that are favorable to freedom of navigation and our own global mobility."
The Convention is also key to resolving several ongoing maritime conflicts in the Arctic Ocean and the South China Sea. In the Arctic, the United States is entitled to vast areas of continental shelf if it files a successful petition with an organization established under the Convention. But as a non-party, the United States would have a difficult time getting other countries to acknowledge its claim. Meanwhile, Russia and Canada have filed claims for immense areas of the Arctic Ocean, and China has even filed for exclusive rights to develop parts of the seabed in the Indian Ocean and mid-Pacific.
Similarly, the Convention contains rules for deciding what islands or features in the South China Sea constitute offshore resource zones, and so may help to resolve the escalating tensions among China, Vietnam, the Philippines and other nations in the region. As the United States is drawn deeper into these disputes, it will be useful to base Washington’s position in international legal norms.
Critics claim that the United States does not need to ratify the treaty because it already carries the force of customary international law. However, this position is viewed with skepticism by U.S. allies and open defiance by potential adversaries. Beijing, for example, has repeatedly challenged the legal right of the United States and other countries to maintain an offshore naval presence in the region’s inner seas, such as the Yellow Sea and South China Sea, and China’s own 200-mile exclusive economic zone. And Chinese military power, from its advanced ballistic missile program to its quickly expanding blue-water navy, raises the possibility that the new global center of power could be controlled by China.
But the Law of the Sea protects the freedom of navigation of the United States and other countries with the imprimatur of international law. The Convention was completed in 1982, and it establishes the right of naval forces to innocent passage in foreign territorial seas and the right to conduct all offshore military operations-including air and submarine operations beyond 12 nautical miles from the shore-all without seeking permission or providing advance notice or reports to any country. The treaty can thus help prevent China from standing between the United States and its treaty allies Japan, South Korea, and Australia, as well as its new strategic partners, such as India and Vietnam.
Japan, for example, is the cornerstone of U.S. interests in stability and security in the region, and is home to the forward-deployed U.S. Seventh Fleet. As the importance of the Pacific theater grows, American ships and aircraft require freedom of the seas to conduct ballistic missile-defense operations against North Korea, reassure allies that the United States is engaged in the region, or respond to another major humanitarian crisis like the 2004 tsunami.
Along with the U.N. Charter and the prohibition on the aggressive use of force, the robust rules for freedom of navigation and overflight established by the Convention are the crown jewels of a liberal global order. The United States and the world benefit from the stability of these legal regimes — even as they may be abused or imperfectly applied by others. Accession would not just be a step forward for international law, it is essential for U.S. security interests.