The Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea (UNCLOS) supports implementation of the National Security Strategy, provides legal certainty in the world's largest maneuver space, and preserves essential navigation and overflight rights. Over one hundred and sixty nations and the European Union are Party to the Convention – but not the United States, the world's leading maritime nation.
Becoming a Party to the Law of the Sea Convention would help to preserve the Navy's ability to move forces on, over, and under the world's oceans, whenever and wherever needed, and is an important asset in the modern maritime environment.
The Convention is in the national interest of the United States because it establishes stable maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea lanes passage rights; works against "jurisdictional creep" by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships, auxiliaries and government aircraft.
Specifically, the Convention recognizes and preserves for our ships and aircraft the freedom to conduct:
- Innocent passage in territorial waters.
- Transit passage through international straits (surface, air and subsurface), including the approaches to those straits.
- Unrestricted military activities in high seas.
- Military surveys.
- Approach and visit of vessels suspected of engaging in piracy and stateless vessels.
Economically, accession to the Convention would support our national interests by enhancing the ability of the US to assert its sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the Law of the Sea Convention that first established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal states to conserve and manage the natural resources in this Zone.
Background / History
President Ronald Reagan supported the Convention, but objected to certain deep seabed mining provisions. After reviewing an early draft of the Convention he vowed to continue to participate in further Convention negotiations to address deficiencies in the Convention's deep seabed mining provisions.
In March 1983President Reagan issued a statement indicating that he remained dissatisfied with the deep seabed mining provisions but proclaimed the U.S. would recognize all other provisions of the Convention relating to traditional uses of the oceans.
President Reagan's Secretary of State and key advisor regarding the Convention negotiations, Mr. George Shultz, now supports accession to the Convention and states the 1994 Agreement adequately addressed President Reagan's deep seabed mining concerns.
There has been bipartisan presidential support for joining the Convention since the 1994 Agreement resolved the objections raised by President Reagan in 1983.
Statement of Admiral Jonathan W. Greenert, Chief of Naval Operations, before the Senate Armed Services Committee - March 2012:
"The Navy's ability to retain access to international waters and airspace as well as critical chokepoints throughout the world would be enhanced by accession to the United Nations Convention on the Law of the Sea (UNCLOS). As the world's preeminent maritime power, the United States has much to gain from the legal certainty and global order brought by UNCLOS. The United States should not rely on customs and traditions for the legal basis of our military and commercial activity when we can instead use a formal mechanism such as UNCLOS. As a party to UNCLOS, we will be in a better position to counter the efforts of coastal nations to restrict freedom of the seas."
Statement of The Honorable Ray Mabus, Secretary of The Navy, before the Senate Armed Services Committee - March 2012:
"The traditional freedom of the seas for all nations developed over centuries, mostly by custom, have been encoded within the United Nations Convention on the Law of the Sea (UNCLOS). This important treaty continues to enjoy the strong support of the DoD and the DON. The UNCLOS treaty guarantees rights such as innocent passage through territorial seas; transit passage through, under and over international straits; and the laying and maintaining of submarine cables. The convention has been approved by nearly every maritime power and all the permanent members of the UN Security Council, except the United States. Our notable absence as a signatory weakens our position with other nations, allowing the introduction of expansive definitions of sovereignty on the high seas that undermine our ability to defend our mineral rights along our own continental shelf and in the Arctic. The Department strongly supports the accession to UNCLOS, an action consistently recommended by my predecessors of both parties."
May 28, 2014, President Obama Speech at West Point, excerpt:
“You see, American influence is always stronger when we lead by example. We cannot exempt ourselves from the rules that apply to everyone else. We can’t call on others to make commitments to combat climate change if so many of our political leaders deny that it is taking place. It’s a lot harder to call on China to resolve its maritime disputes under the Law of the Sea Convention when the United States Senate has refused to ratify it – despite the repeated insistence of our top military leaders that the treaty advances our national security. That’s not leadership; that’s retreat. That’s not strength; that’s weakness. And it would be utterly foreign to leaders like Roosevelt and Truman; Eisenhower and Kennedy.”
2015 President Obama National Security Strategy, excerpt:
“The United States has an enduring interest in freedom of navigation and overflight as well as the safety and sustainability of the air and maritime environments. We will therefore maintain the capability to ensure the free flow of commerce, to respond quickly to those in need, and to deter those who might contemplate aggression. We insist on safe and responsible behaviors in the sky and at sea. We reject illegal and aggressive claims to airspace and in the maritime domain and condemn deliberate attacks on commercial passenger traffic. On territorial disputes, particularly in Asia, we denounce coercion and assertive behaviors that threaten escalation. We encourage open channels of dialogue to resolve disputes peacefully in accordance with international law. We also support the early conclusion of an effective code of conduct for the South China Sea between China and the Association of Southeast Asian States (ASEAN). America’s ability to press for the observance of established customary international law reflected in the U.N. Convention on the Law of the Sea will be enhanced if the Senate provides its advice and consent—the ongoing failure to ratify this Treaty undermines our national interest in a rules-based international order. Finally, we seek to build on the unprecedented international cooperation of the last few years, especially in the Arctic as well as in combatting piracy off the Horn of Africa and drug-smuggling in the Caribbean Sea and across Southeast Asia.”
2015 Department of Defense Asia-Pacific Maritime Security Strategy, excerpt:
“Adherence to a rules-based system has been critical to furthering peace, stability, and prosperity in the Asia-Pacific region. This system provides the basis for shared use of maritime waterways and resources, and ensures safe operations within the maritime domain. This is why the United States operates consistent with – even though the U.S. Senate has yet to provide its advice and consent – the United Nations Convention on the Law of the Sea (Law of the Sea Convention), which reflects customary international law with respect to traditional uses of the ocean.”