Law of the Sea: Less boring than you think

By Will Rogers

Best Defense bureau of natural security

Washington is gearing up for another fight over the Law of the Sea Convention (LOSC) as the U.S. Senate Foreign Relations Committee prepares to hold hearings in the coming weeks. But while the thirty year LOSC debate may start to sound like a broken record to some, the stakes of not ratifying the convention are the highest they have ever been for the United States.

Although the United States has safeguarded its interests at sea by relying on customary international law, this approach is becoming increasingly risky. Critics of LOSC routinely argue that the convention’s most important provisions — including maritime navigational rights — are already accepted international norms, recognized by other countries as the rules of the road at sea. However, critics fail to appreciate that customary international law can change, as it appears to be doing today.

Rising maritime powers across the globe are reinterpreting customary international law to promote their own national interests — including in ways that may conflict with longstanding maritime norms and American interests. Nowhere is this more apparent than in the South China Sea, where China’s outsized claim to the entire region flies in the face of both traditional practices and LOSC. But China is not the only offender. Burma, Thailand, and others are joining China in more restrictive interpretations of maritime navigational rights, including anti-access norms that could constrain the U.S. Navy’s ease of access in this crucial maritime domain.

Unfortunately, the United States is not in a position to rebuff these restrictive interpretations and protect the maritime norms that have been so beneficial to the global economy and U.S. security. U.S. failure to ratify the treaty has prevented the United States from taking a seat at the table to avail itself of the convention’s established legal frameworks, such as the Law of the Sea Tribunal. And while the United States sits on the sidelines, other countries are engaging in discussions of maritime law, and in some places working toward consensus on issues that could have consequences for the United States for decades. Joining the treaty will allow the United States to lead these important discussions and, more importantly, enable the United States to negotiate with countries from a position of strength to protect the customary practices codified by the convention.

Ratifying LOSC will also strengthen a range of ongoing U.S. security activities. The U.S. Navy and U.S. Coast Guard are our key instruments of power at sea and ratifying LOSC will strengthen their ability to do their job and work with others to protect U.S. interests, including areas such as counter proliferation and counter piracy. More importantly, ratifying the convention would give the U.S. Navy and Coast Guard the strongest legal footing for their actions, including in places like the Strait of Hormuz, where Iran has threatened to close access to the international passageway in direct violation of the convention. As Chairman of the Joint Chiefs of Staff General Martin Dempsey recently said, "It validates the operations we conduct today and realizes our vision for a secure future."

For some, the most pressing reason to ratify LOSC is to acquire legal jurisdiction to the estimated trillion dollars of energy and mineral resources on the extended continental shelf, an area beyond the recognized 200-nautical mile Exclusive Economic Zone (EEZ). Ratifying the treaty will allow the United States to submit a claim to the U.N. Commission on the Limits of the Continental Shelf, expanding U.S. sovereignty to critical energy and mineral resources on the extended continental shelf. "Not since we acquired the lands of the American west and Alaska have we had such an opportunity to expand U.S. sovereignty," Secretary of Defense Leon Panetta recently said. 

To date, many U.S. companies have been reluctant to operate beyond the U.S. EEZ due to the lack of U.S or international legal protections that significantly raise the risks for companies operating beyond any national jurisdiction. Securing sovereign rights to the extended continental shelf will provide U.S. businesses the recognized title and protection to resources there, expanding domestic production of oil and natural gas, strengthening our assured access to energy resources. What is more, U.S. businesses would be able to lay claim to mineral resources, including rare earth metals that are critical to defense technologies, helping to reduce risky U.S. reliance on Chinese rare earths by bolstering U.S. domestic production.

Ratifying LOSC will not address every challenge the United States will confront at sea, but it will substantially improve America’s ability to protect its global interests by providing a stronger legal foundation for its own maritime activities and helping to shape and enforce international norms and legal authorities. Most importantly, it will restore U.S leadership at sea. The United States has always been a maritime power. Given the growing importance of the maritime domain to U.S. interests and the rapidly changing global security environment, the United States needs every tool at its disposal to ensure that America will remain a strong global leader at sea.

The U.S. Senate should ratify the Law of the Sea Convention today.   

Will Rogers is a research associate at the Center for a New American Security, a non-partisan national security and defense policy think tank in Washington. He is the author of Security at Sea: The Case for Ratifying the Law of the Sea Convention.