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LYONS: Bureaucracy rules the waves

U.N. treaty would grant naval rights U.S. already exercises

- - Tuesday, June 19, 2012

On June 14, Sen. John Kerry, chairman of the Senate Foreign Relations Committee, held hearings to support the Obama administration's goal to make the United States a signatory to what is clearly a controversial and flawed United Nations Convention on the Law of the Sea (UNCLOS).

The fact that we as the premier maritime power in the world would submit our freedom of navigation rights as well as issues dealing with our sovereignty to a U.N. bureaucratic International Seabed Authority based in Jamaica should raise serious concern. The argument made that we must have a "seat at the table" to secure the U.S. Navy's freedom of navigation and other transit rights, including the right of innocent passage, is nonsense.

Furthermore, UNCLOS has provisions that could seriously interfere with legitimate naval operations by allowing other nations to avail themselves of the treaty's mandatory dispute-resolution mechanisms. These could be used to interfere with training exercises and other operations, such as hydrographics or intelligence. Such interference could adversely impact our anti-submarine warfare operations, with serious consequences.

The U.S. Navy has successfully protected America's maritime interests for the past 200 years, including the past 30 years since UNCLOS was concluded in 1982, without U.S. accession to the treaty. As for freedom of navigation rights, the United States has always successfully relied on long-standing, recognized international law, which the U.S. has played a central role in developing and UNCLOS simply codifies. The assertion that our right to freedom of navigation will be eroded unless we join the treaty is simply false. The United States has enjoyed the same navigation rights and freedoms available to the 153 parties to UNCLOS for decades, and will continue to do so without becoming a member.

Between 1993 and 2010, the U.S. Navy has conducted hundreds of operations to contest excessive maritime claims made by 47 nations on issues related to freedom of the high seas and the right of innocent passage through territorial waters. Additionally, the Navy regularly transits international straits and archipelagic waters to assert its rights. The U.S. Navy has undertaken all of these operations without U.S. membership in UNCLOS. Ratificating the treaty rather than protecting these rights could have the potential for adversely affecting the rights and will not end excessive and illegal claims by other nations.

Claims made that becoming a signatory to UNCLOS will help resolve our issues with Iran and China is wishful thinking. Iran is not a party to the treaty and therefore, views itself as not being bound by its terms. Given its past track record, U.S. accession to UNCLOS will have little impact on Iran and its repeated threats to close the Strait of Hormuz.

China, which is party to UNCLOS, has nonetheless undertaken illegal maritime claims in the South China Sea, manipulating the text of the treaty as a means to support these claims. Beijing has asserted that the U.S. Navy is illegally conducting naval exercises and surveillance flights in China's exclusive economic zone despite the fact that such activities are lawful under both UNCLOS and customary international law. Furthermore, China illegally has claimed sovereignty over almost the entire South China Sea, rendering UNCLOS inapplicable in China's view. U.S. accession to the treaty will not resolve these issues.

Another argument advanced for becoming a signatory to the treaty is that we must have a "seat at the table" to deal with upcoming issues regarding the Arctic. This is simply not true. The United States was a founding member of the Arctic Council, an eight-member intergovernmental body established to foster coordination among Arctic nations. Our prominent position on the Arctic Council assures all matters, including freedom of navigation, will be properly addressed and protected.

In summary, it should be clear that the United States does not need membership in the Law of the Sea Treaty in order to protect its navigational, security and economic interests. A seat on the International Seabed Authority would give us one vote out of 41 with no veto authority and no right of appeal. There is nothing to be gained by subjecting the freedoms of navigation we enjoy today, plus infringement of our sovereignty and mineral royalties, to what is essentially an unaccountable U.N. bureaucracy. Our best course of action to protect our national interests is to remain the pre-eminent naval power in the world.

Retired Adm. James A. Lyons was commander in chief of the U.S. Pacific Fleet and senior U.S. military representative to the United Nations.