U.S. POLICY AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

George Washington International Law Review, The, 2007 by Noyes, John E

II. THE CONCERNS OF "JACKSONIAN" CRITICS: MILITARY FLEXIBILITY, INTERNATIONAL INSTITUTIONS, AND U.S. LEADERSHIP

Three issues that have concerned critics of U.S. participation in the Convention (as modified by the Part XI Implementation Agreement) relate to military flexibility, international organizations, and the characteristics of U.S. leadership. These issues also undoubtedly concern the Bush administration, which contains unilateralist, "Jacksonian" voices within it, although the administration has supported the Convention.26 American attitudes with respect to these three issues may also have broader significance in indicating positions the U.S. will continue to stress should it become a State Party to the Convention.

The first issue reflects the notion that U.S. military vessels and aircraft should be able to conduct their missions with maximum flexibility. Critics have expressed the view that the Convention will limit U.S. freedom of action to inspect foreign vessels under the Proliferation security Initiative27 or to gather intelligence.28 The U.S. State Department and the military have repeatedly issued assurances about these specific concerns, and have more broadly asserted that U.S. military capabilities will be enhanced, rather than hampered, by its accession to the Convention.29 Yet for unilateralists, the lesson that international legal standards can further the ability of the U.S. military to do its job rather than limit its flexibility has been conceptually difficult to accept.

Freedom of navigation is the main reason why the George W. Bush administration announced its support for U.S. accession shordy after the 9/11 attacks in 2001.30 The administration likely finds that the Convention's navigational and national security benefits far outweigh any costs to the U.S. joining the Convention. Military security relates to self-defense, which the Convention preserves,31 and to port security, which the Convention facilitates by incorporating security requirements developed through the International Maritime Organization.32 The Convention also assures rights of navigation and overflight, including transit passage through strategic straits and archipelagic sea lanes passage,33 as well as the immunity of warships.34 The U.S. insisted on strengthening rights of navigation and overflight during the Third United Nations Conference on the Law of the Sea Conference (UNCLOS III), and in making them more objective with what appears in the 1958 Territorial Sea Convention.35

Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.36 This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.37 Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Committee, "some coastal states contend that the navigational and overflight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it."38 If it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program39 or negotiating new bilateral agreements.40 The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.