Number 41, August 1995
Ocean Law:  		Senate Approval of the UN Convention

by Ann L. Hollick
Note
Conclusions
Closing Observations

Maritime Interests of the United States
	The United States is a maritime nation with long standing interests in the oceans.  Fromthe founding of the country, the oceans have been an integral part of the nation's security anddefense and economic strength.  This is as true today as in the past. The United States continuesto rely on the freedom of the seas to maintain naval and air access and mobility to defend itsglobal interests.  U.S. marine resource and commercial interests are equally critical.  The country has the largest exclusive economic zone and the most abundant offshore fishery.  As the largestsingle economy, the United States is the major importer and exporter of marine-related goods andservices, including the placement of submarine cables and pipelines.  The U.S. interest inprotection and preservation of the marine environment is matched by its preeminence in marinescientific capabilities.  
	To promote these interests, the United States participates in all important ocean forums, inparticular the  United Nations Convention on the Law of the Sea. The Department of Defense hasbeen a consistent proponent of the convention. Secretary William Perry explained that supportwhen he said: 

*The Nation's security has depended upon our ability to conduct militaryoperations over, under and on the oceans.  We support the Convention because itconfirms traditional high seas freedoms of navigation and overflight; it details passagerights through international straits; and it reduces prospects for disagreements withcoastal states during operations.*
	The 1982 UN Convention was submitted to the Senate for approval in fall 1994, togetherwith an internationally agreed revision of chapter XI on seabed mining.  Once part XI had beenreformed the United States was ready to enjoy all the benefits of the treaty that President Reaganextolled in 1982.

*National security interests in having a stable oceans regime are, ifanything, even more important today than in 1982, when the world had a roughly bipolarpolitical dimension and the United States had more abundant forces to project power towherever it was needed.  		...Without international respect for the freedoms of navigation andoverflight set forth in the Convention, exercise of our forces' mobility rights would bejeopardized.  Disputes with littoral states would delay action and be resolved only byprotracted political discussions.  The response time for U.S. and allied/coalition forcesbased away from potential areas of conflict would lengthen....Forces may arrive on thescene too late to make a difference, affecting our ability to influence the course of eventsconsistent with our interests and treaty obligations.*From the 1994 DOD white paper,  
*National Security and the 
Convention on the Law of the Sea  

	Today the Law of the Sea Convention awaits consideration by the Senate. Delays toSenate approval are more likely to be a function of domestic political considerations than of themerits of the treaty. When this is the case, issues of long range strategic importance, such as thelaw of the sea treaty, receive lower priority.  Pending treaties may be put on hold as the Congressgrapples with the Administration over control of foreign policy.

Evolving Maritime Security  and Strategy
	Several forces are reshaping U.S. security interests in the oceans and the correspondingnaval strategy:  a changing threat and reduced resources to address the threat.  The Cold War hasbeen superseded by multiple regional challenges to U.S. interests around the globe.  The potentialadversaries are diverse, dispersed and individually less powerful.   The Navy has updated andredefined its strategic thinking and prospective Navy missions to take account of these changes. The new focus of maritime forces, set out in the 1992 Navy and Marine Corps white paper...From the Sea and amplified two years later in ...Forward From the Sea, signaled an emphasis onthe projection of power ashore and the use of  the maritime forces in conjunction with land and airforces to influence events in  littoral areas. The anticipated missions include the traditional rolessuch as presence, strategic deterrence, sea control, crisis response, power projection, and sealift. Peacetime roles include embargoes,  counternarcotics  and humanitarian operations.
	The second factor impacting naval strategy is the reality of significant budget cuts.  TheDepartment of the Navy has aggressively implemented the direction of the Secretary of Defense's1990 Base Force concept.  From nearly 600 ships in 1988, the Navy is reducing  personnel andoperating expenses by a third.  By the end of the century, the number of ships will  be 40 percentsmaller,  roughly 330.  Greater integration of the naval forces with other services, enhancedinteroperability with allied forces and redesign of basic operations will achieve meaningful savings. Marine  Expedi-tionary Forces will  integrate amphibious forces and work more closely with otherservices.  Engaging in near-shore areas, however, poses special legal, tactical and strategicproblems.  Weapons systems tailored to this complex environment must be highly discriminatingand defense systems must be adapted to the short warning times that characterize littoral warfare.  

The UNCLOS Treaty Deals with Coastal State Claims 
	A fundamental challenge to U.S. military operations in near-shore areas is to maintain U.S.access rights in the face of coastal state claims.  As ocean resources have become scarcer andcrowding has occurred, governments have tried either to regulate or alternatively to lay claim tooffshore resources.  Cooperation has been possible in the case of some shared ocean activities. Navigation and safety codes and shipping lanes are examples of cooperative approachesundertaken by established international organizations.  In other cases, coastal states haveattempted to act unilaterally to extend national jurisdiction to areas that were previously part ofthe global commons.  China's claim to the South China Sea and Canada's attempts to controlforeign fishing beyond the 200 mile Exclusive Economic Zone (EEZ) are recent instances of thisapproach.
	It was the threat of these unilateral coastal state claims that prompted international effortsto establish rules to govern ocean uses in a "law of the sea."   From 1973 through 1982, the ThirdUN Conference on the Law of the Sea developed a comprehensive legal framework coveringvirtually all uses of the oceans and the respective rights and obligations of states.  Of particularconcern to the United States military was the need to address the proliferation of claims toterritorial seas of twelve miles or more.  If universally applied, a twelve-mile territorial sea wouldoverlap more than 135 international straits.  Under the territorial sea rules of  "innocent passage"set out in the 1958 UN Convention on the Law of the Sea (to which the United States is a party),overflight would not be allowed and submarines would be required to navigate on the surface.
	The 1982 Convention  achieved important consensus on the extent of jurisdiction that acoastal state may exercise offshore:   a territorial sea of twelve nautical miles (with a contiguouszone of an additional twelve miles for customs, fiscal, immigration and sanitary regulation);coastal state jurisdiction over resources in an EEZ of 200 miles; and coastal state jurisdiction overthe continental shelf in those cases where it extends beyond the EEZ.  Within these offshorezones, the treaty balances coastal state rights with explicit provisions to preserve rights ofnavigation and overflight.  Transit passage through and over straits and archipelagoes used forinternational navigation is guaranteed.
	A framework is laid for resource and environmental issues including the management andconservation of living resources, the preservation and protection of the marine environment, andthe conduct of marine scientific research.  As reformed, the treaty now provides for nationalmining of deep seabed minerals according to market principles on a first-come-first-served basiswith clearly defined rights and responsibilities that prevent frivolous denials of applications.  Thesingular application of the common heritage concept is the provision for revenue sharing fromseabed mining royalties.  Since this is also part of U.S. mining legislation, this should not pose anobstacle to Senate acceptance of the Convention.*