Using UNCLOS as a Force Multiplier for American Power

[Dr. James Kraska, Commander, U.S. Navy, is the Howard S. Levie Chair of Operational Law at the U.S. Naval War College]. 

Thanks for the opportunity to talk a bit about the major national security and strategic interests of the United States in the UN Convention on the Law of the Sea (UNCLOS). It is also a pleasure to exchange thoughts on the subject, and I respect Jeremy Rabkin’s work on sovereignty and international law—although I expect we have some difference of view on the law of the sea. I believe UNCLOS is a key enabler of America’s strategic position in the world and an essential force multiplier for our military security and economic prosperity.

It is important to understand the history of the negotiations for the Convention. The United States coordinated its approach on navigational freedoms with the four other major maritime powers (MMP) of the day—the USSR, France, the United Kingdom, and Japan. These five MMP formed one of the key voting blocks during the negotiations. The United States and the Soviet Union, in particular, were brought together by coinciding national interest in freedom of the seas. The “crown jewel” of strategic freedom of navigation was (and is) transit passage through straits used for international navigation. The superpowers abandoned ideology and brought along their allies and client states in the final votes, protecting freedom of the seas from dilution against efforts by some coastal states and straits states.

Admiral Gorshkov’s Navy had or was close to parity with the United States, and Moscow needed free access to the world’s oceans. Russia has four areas of major fleet concentration: the facilities on the Barents Sea at Murmansk and Archangel, the Baltic Sea, Sebastopol in the Black Sea, and Vladivostok in the Pacific. None of these bases have open access to the oceans without traversing straits used for international navigation. Thus, once it became apparent that the territorial sea was extended to 12 nautical miles, thereby closing off nearly all of the world’s strategic straits, Moscow became deeply concerned and joined the U.S. effort to promote freedom of navigation and overflight through straits.

Likewise, the United States required free transit through international straits in order to shift forces from theater to theater and maintain global reach and forward presence. All U.S. strategy, at least from the World War I onward, is a function of maritime strategy—maintaining a connection to friends and allies in Europe and Asia and elsewhere. The U.S. requires global mobility to maintain a strategic posture of global stability, so detailed navigational provisions were baked into the treaty. The United States also needed transit through straits to maintain strategic deterrence—protecting the movements of ballistic missile submarines, which are the most survivable leg of the old nuclear triad, shifting among the oceans through straits. Furthermore, the oceans and airspace above them constitute the world’s largest maneuver space, and the ability of the U.S. to project power or force from the sea to virtually any point on the global is a uniquely American advantage (as covered in legal detail in my 2011 book, Maritime Power and Law of the Sea and by Barry Posen of MIT in his masterful “Command of the Commons” article in 2003 in International Security).

During the negotiations it was unclear if the longstanding norm for transit through straits included submerged transit or overflight, whether it applied to warships at all, or precisely what navigational regime could be used. Many nations believed that the navigational regime of non-suspendable innocent passage applies in straits, whereas the United States and the Soviet Union refused to accept anything less than a new, broad regime of transit passage.

In addition to the regime of transit passage through international straits, the navigational piece of UNCLOS also included the regime of innocent passage in the territorial sea, high seas freedoms in the exclusive economic zone (EEZ) and on the continental shelf. These navigational regimes were specific (that is, precise) and inclusive of transit over more than 70 percent of the globe.

Unlike most of the other parts of the Convention, which are hortatory and aspirational—rather vague pronouncements that require the details to be filled in at a later date—the navigational provisions are set in stone, and all of the benefits inure to maritime power. So while the MMP have received the payoff up front, we still can shape the outcome of the details on the non-security aspects of the treaty, such as regulations for marine environmental protection, fisheries beyond the EEZ, maritime boundary delimitation, and application of the rules on seabed mining. Some of these rules are being crafted at the International Maritime Organization in London, where we have an active and influential presence, whereas other regulations are being written and decided by the International Tribunal for the Law of the Sea, the International Seabed Authority and the Commission on the Limits of the Continental Shelf, where we are entirely absent. In a globalized world, these rules and regulations being written without our participation are going to involve and affect (and constrain) our friends and allies, our diplomatic and legal maneuver space, and our multinational corporations.

The U.S. and its friends and allies are entitled to use the oceans freely under color of international law and the legitimacy of international institutions created by the Convention. There are, of course, states that take actions that are inconsistent or not conforming to the Convention, but the plain reading and record of the 1973-1982 Conference supports the rather judicious, bipartisan reading of the treaty. So while the United States will continue to rely on a (shrinking) naval force structure to project American power throughout the globe, it is far preferable that we do so armed with widely recognized and accepted authorities. Why give up a key instrument of American power—the rule of law?