The 1982 Convention on the Law of the Sea — the instrument that created the overarching governance framework for nearly three-quarters of the Earth’s surface and what lies above and beneath it — has been signed and ratified by 161 countries, but not by the United States. The convention and the 1994 agreement on its implementation have been in force for 18 years, yet the United States, a nation with over 12,000 miles of coastline and the dominant world maritime power by any measure, joins an embarrassing short list of holdouts that includes North Korea, Syria and Iran.
This is true despite the fact that a bipartisan coalition of American business, environmental and military leaders agree that it is in our national interests to formally become a state party to this lynchpin of ocean governance. Per our constitution, the Senate must give its “advice and consent” to treaties submitted by the president for its review. Of these currently in the queue, for national-security reasons, the Law of the Sea is one of the most urgent.
This is why the secretaries of Defense and State, the chairman of the Joint Chiefs of Staff, and the heads of the Navy, Coast Guard and Marine Corps all recently testified before the Senate Foreign Relations Committee that the U.S. should join. In fact, since 1994 – when President Clinton first submitted the treaty to the Senate for its consideration following the international community changing the document’s language to directly address President Ronald Reagan’s initial reservations – every president, every Marine Corps and Coast Guard commandant, and nearly all chiefs of naval operations have unequivocally supported it. Put simply, there is broad consensus from our nation’s military and political leadership that the United States should sign on.
This consensus exists because of the tangible benefits that come with formal membership. From an economic perspective, the rewards are many but one example is that the United States could potentially claim exclusive jurisdiction over as much as 1 million square kilometers of ocean off of our extended continental shelf, an area half the size of the entire Louisiana Purchase. By remaining outside of the convention, we not only cannot press our claim, but we do not have a seat at the table to review the claims of others in an ongoing legal process. In environmental terms, it will give us the international authority to protect critical fisheries and sensitive habitats as new shipping lanes materialize in the Arctic.
Importantly, there are also urgent national-security imperatives.
For starters, our entire naval strategy is predicated on the global reach of American sea power and ensuring unencumbered maritime trade upon which 90 percent of all commerce depends. The Law of the Sea enshrines the concept of the freedom of navigation upon which our maritime forces rely and it ensures the rights of innocent passage for our ships and submarines on the high seas and through the territorial seas of foreign nations without prior notification or permission. It also protects unimpeded transit through international straits such as Hormuz or the waters between Taiwan and China as well as archipelagoes like Indonesia. And, while enjoying these freedoms, our warships enjoy complete immunity. The United States is the world’s preeminent naval power and its combatant vessels and merchant marine benefit from open navigation.
In terms of strategic doctrine, as long as it remains outside the convention, the United States is restricted from fully implementing the first-ever national Cooperative Strategy for 21st Century Seapower, jointly published by the chief of naval operations and the commandants of the Coast Guard and the Marine Corps. This announced policy seeks to build maritime partnerships for combating critical emerging threats such as piracy, nuclear proliferation and drug smuggling based on the principles we helped establish in the convention.
We face real pushback from our allies in these efforts who rightly question why we refuse to legally sign on to the rules we helped write. The United States puts its sailors in unneeded jeopardy when carrying out the Freedom of Navigation program to contest Law of the Sea abuses such as China’s “creeping sovereignty” in the Pacific. Further, we undermine our moral authority as a nation that benefits from an organized international system and makes establishing the rule of law a central tenet of our foreign policy.
As President George W. Bush noted in an official White House statement urging the Senate to approve accession in 2007, “joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide.”
This fact has only become more pressing in the five intervening years and we urge Congress to take action. If it so exercises its constitutional authority, the Senate will have taken an important step to safeguard the national interests critical for our security and economic wellbeing. That is surely an argument on which both sides of the aisle can agree.
Scott Borgerson is a managing director of CargoMetrics; Vern Clark is a former chief of Naval Operations; Bill Cohen is a former secretary of Defense and senator from Maine; Jim Loy is a former Coast Guard commandant and a deputy secretary of the Department of Homeland Security; John Negroponte was the first director of National Intelligence and a deputy secretary of State.
Click here to read a counterpoint by Donald H. Rumsfeld.