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117

NATIONAL SECURITY IMPLICATIONS IN THEGLOBAL WAR ON TERRORISM OF THE UNITED

STATES’ ACCESSION TO THE UNITED NATIONSCONVENTION ON THE LAW OF THE SEA

LIEUTENANT MATTHEW W. IVEY*

The United Nations Convention on the Law of the Sea has been a topic of heated debate

since its current iteration was introduced in 1982. In 2007, the argument in favor of

the United States’ accession to the Convention was reinvigorated with statements from

President George W. Bush, urging the Senate to give its advice and consent to the

treaty. Nevertheless, opponents of the treaty argue that the United States will sacrifice

sovereignty by becoming a party to the Convention. Proponents, however, argue that

becoming a party to the Convention is necessary for the United States to strengthen its

national security. This Article examines this debate in the context of the Global War on

Terrorism and argues that becoming a party to the treaty is favorable to United States

security interests.

I. INTRODUCTION...........................................................................................117 II. BACKGROUND...........................................................................................118 III. DISCUSSION .............................................................................................119

A. The Proliferation Security Initiative (PSI) .................................120 B. Freedom of Navigation Rights .....................................................122 C. Military Operations ......................................................................123

1. Maritime Interdiction Operations..........................................123 2. Submarine Operations............................................................125 3. Intelligence Activities ............................................................126

IV. ANALYSIS ................................................................................................127 V. CONCLUSION.............................................................................................130

I. INTRODUCTION

On May 15, 2007, President Bush issued a statement urging the Senate

to give its advice and consent to the ratification of the United Nations

Convention on the Law of the Sea (UNCLOS).1 The President’s comments

*LT Ivey is a Surface Warfare Officer in the United States Navy. The views expressed in this

paper are the Author’s own. They do not necessarily represent the views of the Department of

Defense, the United States Navy, or any of its components.1 See Press Release, White House, President's Statement on Advancing U.S. Interests in the

World's Oceans (May 15, 2007), http://www.whitehouse.gov/news/releases/2007/05/20070515-

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118 THE DARTMOUTH LAW JOURNAL Vol. VII:2

focused on the positive implications of ratification on the United States’

role in the Global War on Terrorism: “Joining will serve the national

security interests of the United States, including the maritime mobility of

our armed forces worldwide.”2

Despite the President’s urging, manyscholars, politicians, and members of thepublic doubt that joining the

Convention is a favorable strategic decision for the United States.3

Specifically, these individuals assert that becoming a party to the treaty will

undermine the United States’ ability to independently perform military and

intelligence operations.4 Part I of this article summarizes the history of

UNCLOS and recent American political consideration of the Convention.

Part II discusses the implications of the United States’ accession to the

treaty in various mission-areas of the Global War on Terrorism. Finally,

Part III analyzes the implications of UNCLOS on United States’ national

security interests and argues that these interests are best served by

becoming a party to the Convention.

II. BACKGROUND

For over two decades, UNCLOS has been a subject of great debate in

national security circles.5 UNCLOS traces its roots to customary

international law, first embodied in a series of treaties on the law of the sea

dating back to the 1950s.6 After fourteen years of discussion and debate,

international negotiators from more than 150 nations completed a draft of

the current iteration of UNCLOS in 1982.7 This draft was intended to

establish a comprehensive legal scheme governing movement on the sea

2.html [hereinafter White House Law of the Sea Press Release; United Nations Convention on the

Law of the Sea, opened for signature, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].2 See White House Law of the Sea Press Release, supra note 1.3 See, e.g., Edward M. Meese et al., HERITAGE FOUNDATION WEBMEMO, The United

Nations Convention on the Law of the Sea: The Risks Outweigh the Benefits 3 (2007), available

at http://www.heritage.org/Research/InternationalOrganizations/wm1459.cfm; Frank J. GaffneyJr., John Kerry's Treaty: Outsourcing Sovereignty, NATIONAL REVIEW ONLINE, Feb. 6, 2004,

http://www.nationalreview.com/gaffney/gaffney200402261356.asp; Military Implications of the

United Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on ArmedServices, 108th Cong. 1 (2004) (statement of Jeane Kirkpatrick, Senior Fellow and Dir. of

Foreign & Def. Pol'y Studs., Am. Enter. Inst.).4 See, e.g., Bonner Cohen, NATIONAL POLICY ANALYSIS, Law of the Sea Treaty Could

Prove Dangerous to America (2005), http://www.nationalcenter.org/NPA534LawofSea.html.5 See Meese et al., supra note 3, at 1.

6 A series of conferences were held in the 1950’s that led to four 1958 Conventions on theLaw of the Sea (The 1958 Convention on the Territorial Sea and the Contiguous Zone, the 1958

Convention on the High Seas, the 1958 Convention on Fishing and Conservation of Living

Resources and the 1958 Convention on the Continental Shelf).See LEITNER, supra note 6, at 7-25.

7 See UNCLOS, supra note 1.

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Summer 2009 UNCLOS 119

and treatment of the resources therein.8 The United States opted not to

become a party to the treaty for a variety of reasons, primarily as a result of

concerns regarding the Deep Seabed mining provision in Part XI, which

had security consequences in light of the ongoing Cold War.9

The end of the Cold War and extensive negotiations, thereafter, resulted in a 1994

agreement that resolved these concerns. President Clinton signed the

revised treaty and forwarded it to the Senate for advice and consent.10 That

year, UNCLOS and the 1994 agreement both entered into force without the

United States’ ratification. Ratification was delayed by several members of

Congress who harbored doubts as to UNCLOS’ impact on American

sovereignty.11

Today 155 countries are party to the Convention and 131 countries

have signed the 1994 Agreement regarding the implementation of Part XI.12

As a result of fresh encouragement from President Bush, American

ratification of the treaty has received great support from members of

Congress.13 In fact, in 2004, the Senate Foreign Relations Committee sentthe treaty to the Senate floor with a 19-0 vote.14 In addition, the Pentagon

has largely encouraged the United States to become a party to UNCLOS. 15

III. DISCUSSION

Becoming a party to the Convention will impact the United States in

several arenas.16 Perhaps the most contentious implications concern how

the United States will continue to wage the Global War on Terrorism.17

This article specifically examines the reconciliation of UNCLOS and the

8 See id. pmbl.9 See Accession to the 1982 Law of the Sea Convention and Ratification of the 1994

Agreement Amending Part XI of the Law of the Sea Convention: Before the S. Foreign Relations

Comm., 115th Cong. (2007) (written testimony of John D. Negroponte, Deputy Secretary of State) [hereinafter Negroponte, Law of the Sea Testimony].

10 See Stephen Dinan, Skeptical Senate eyes sea treaty, WASHINGTON TIMES, Mar. 7, 2005, at

A15. 11 See Negroponte, Law of the Sea Testimony, supra note 9.12 See UNCLOS, supra note 1, ratifications, accessions, and successions.13 See David R. Sands, White House Pushes Sea Treaty; Officials Tout Commercial, Military

Pluses, WASHINGTON TIMES, Sep. 28, 2007, at A18; David Helvarg, Congress Can Raise Our `C'

On Seas, L.A. TIMES, Mar. 12, 2007, at A15.14 UNCLOS never received a full Senate vote and was sent back to the Senate Foreign

Relations committee for further consideration. See Dinan, supra note 11.15 See, e.g., Hearing on the Law of the Sea Convention: Before the S. Foreign Relations

Comm., 110th Cong. (2007) (statement of Patrick M. Walsh, Vice Chief of Naval Operations,Admiral, United States Navy) [hereinafter Walsh, Law of the Sea Testimony].

16 See generally Marjorie Ann Browne, Congressional Research Service Report for Congress

The U.N. Law of the Sea Convention and the United States: Developments Since October 2003(2004) available at http://www.fas.org/sgp/crs/row/RS21890.pdf.

17 See Walsh, Law of the Sea Testimony, supra note 16.

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Proliferation Security Initiative (PSI),18 the ability of the United States to

freely navigate the world’s oceans,19 the ability of the United States to

conduct Maritime Interdiction Operations (MIO),20 the ability of the United

States to conduct submarine operations,21

and the impact of UNCLOS onintelligence activities.22 While the Pentagon and President Bush have

contended that the United States’ capabilities in the global war on terrorism

will be enhanced by the United States accession to the treaty, a vocal

minority has expressed the opposite view.23 For instance, groups such as

the Heritage Foundation contend that becoming a party to the treaty will

compromise national security:

Under the convention, the United States assumes a number of

obligations at odds with its military practices and national security

interests, including a commitment not to collect intelligence. The U.S.

would sign away its ability to collect intelligence vital for American

security within the “territorial waters” of any other country (Article 19).

Furthermore, U.S. submarines would be required to travel on the surfaceand show their flags while sailing within territorial waters (Article 20).

This would apply, for example, to U.S. submarines maneuvering in

Iranian or North Korean territorial waters; they would be required to sail

on the surface with their flags waving.24

This article attempts to weigh these competing viewpoints on UNCLOS

and its impacts in the arena of national security.

A. The Proliferation Security Initiative (PSI)

The Proliferation Security Initiative (PSI), announced by President

Bush on May 31, 2003, is an international effort promoting the global

18 See Thomas D. Lehrman, Enhancing the Proliferation Security Initiative: The Case for a

Decentralized Nonproliferation Architecture, 45 VA. J. INT’L L. 223, 248--49 (2004).19 See, e.g., Andrew S. Williams, The Interception of Civil Aircraft Over the High Seas in the

Global War on Terror, 59 A.F. L. REV. 73, 92--6 (2007).20 See, e.g., Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic

Theory for Naval Anti-Piracy Operations, 40 VAND. J. TRANSNAT’L L. 1, 10 (2007); Sandra L.

Hodgkinson et al., Challenges to Maritime Interception Operations in the War on Terror:

Bridging the Gap, 22 AM. U. INT’L L. REV. 583, 593-94 (2007).21 See Hearing on Navy Submarine Force Structure and Modernization Plans: Before the

Subcomm. on Military Procurement of the House Comm. on Armed Services, 106th Cong. (2000)

(statement of Malcolm I. Fages, Rear Admiral, U.S. Navy Director, Submarine Warfare Division)[hereinafter Fages, Submarine Testimony]; John Astley & Micheal N. Schmidt, The Law of the

Sea and Naval Operations, 42 A.F. L. REV. 119, 133 (1997).

22 See Negroponte, Law of the Sea Testimony, supra note 10.23 See generally, Carrie Donovan, HERITAGE FOUNDATION WEBMEMO, The Law of the Sea

Treaty (2004), http://www.heritage.org/Research/InternationalOrganizations/wm479.cfm.24 See Baker Spring, Steven Groves & Brett D. Schaefer, The Top Five Reasons Why

Conservatives Should Oppose the U.N. Convention on the Law of the Sea , HERITAGE

FOUNDATION WEBMEMO #1638, September 25, 2007.

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interdiction of shipments of weapons of mass destruction (WMD) and their

delivery systems worldwide.25 On September 4, 2003, the eleven

participating nations released a statement in Paris outlining PSI’s

initiatives.26

The aim of PSI is to create an enhanced approach topreventing proliferation of WMD.27 In order to ensure congruence with

other bodies of law, PSI specifically states that it will be implemented as is

consistent with national law and international law.28 All of the PSI partners,

with the exception of the United States, are already parties to UNCLOS.29

This fact demonstrates that state national security interests under the PSI

are not put in jeopardy by becoming a party to UNCLOS. Indeed, John

Bolton, former United States ambassador to the United Nations, argued that

UNCLOS will not impede the goals of the PSI in testimony before the

Senate Armed Services Committee, stating: “If the Senate were to ratify the

Law of the Sea Treaty and the president were to make the treaty [. . .] it

would not have any negative impact whatsoever on PSI.”30

Nevertheless, opponents of UNCLOS find that United Statesaccession to the treaty would directly contradict the goals of PSI.31

Specifically, opponents assert that if the United States does not become a

party to the Convention, it will be free from any constraints in relation to

ocean law, and thus, better suited to pursue the goals of PSI.32 This

argument, however, is weakened by the fact that the United States is

already a party to the 1958 Convention on the Law of the Sea, subjecting it

to many of the same provisions articulated in the current iteration of

UNCLOS.33 While the 1982 Convention modified many elements of the

1958 Convention, several key provisions remained in place, including

25 John R. Bolton, Remarks at Proliferation Security Initiative Meeting (Sept. 4, 2003),available at http://www.state.gov/t/us/rm/23801.htm [hereinafter Bolton, PSI Remarks]; see

generally John R. Bolton, The Bush Administration’s Forward Strategy for Nonproliferation , 5

CHI. J. INT’L L. 395 (2005); Joel A. Doolin, The Proliferation Security Initiative: Cornerstone of

a New International Norm, 59 NAVAL WAR C. REV. 29 (2006).26 See Bolton, PSI Remarks, supra note 26; see generally Bolton, supra note 26; Doolin,

supra note 26.27 See Sharon Squassoni, Congressional Research Service Report for Congress, Proliferation

Security Initiative (2005), available at http://www.fas.org/sgp/crs/nuke/RS21881.pdf.28 See Press Release, White House, Principles for the Proliferation Security Initiative (Sept. 4,

2003), available at http://www.whitehouse.gov/news/releases/2003/09/20030904-10.html;

Lehrman, supra note 19, at 248.29 See John Norton Moore & William L. Schachte, The Senate Should Give Immediate Advice

and Consent to the Law of the Sea Convention , 59 J. INT’L AFFAIRS 1, 11 (2005).30 See S. EXEC. REP. NO. 109-01, at 212 (2005) (statement of John R. Bolton).

31 See Moore & Schacte, supra note 30, at 13.32 See id. 33 See Hearing on U.N. Convention on the Law of the Sea: Before the S. Foreign Relations

Comm., 110th Cong. (2007) (statement of Bernard H. Oxman, Professor of Law, University of Miami Law School) [hereinafter Oxman, Law of the Sea Testimony]; Moore & Schacte, supra

note 30, at 4.

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many governing activities in territorial seas, continguous zones, and the

high seas. Additionally, because UNCLOS is largely rooted in customary

law, opponents of UNCLOS assert that the United States is already subject

to many of its provisions implicitly.34

In the absence of a treaty, the UnitedStates must rely on and abide by customary law, which is defined by the

pattern and practice of states. Since so many nations are already a party to

UNCLOS, their practices largely influence the body of customary law on

which the United States must rely if it does not ratify UNCLOS.

B. Freedom of Navigation Rights

During a visit to the USS Kitty Hawk, on June 6, 1963, President John

F. Kennedy stressed the importance of control of the seas: “Control of the

seas means security. Control of the seas can mean peace. Control of the

seas can mean victory. The United States must control the seas if it is to

protect your security.”35 While President Kennedy could not haveenvisioned the events of September 11, 2001 and the ensuing Global War

on Terrorism, these words still ring true today.36 In order to effectively

wage the Global War on Terrorism, the Navy must have the ability to

freely navigate the world’s oceans.37 Not only is freedom of navigation

essential for the military to travel top areas of crisis faster, but it also

checks nations who claim territorial seas beyond twelve nautical miles.38

UNCLOS promotes the United States’ freedom of navigation rights in

at least three ways.39 First, the Convention limits coastal States’ territorial

seas to twelve nautical miles.40 Second, UNCLOS affords innocent

passage of ships and aircraft through other countries’ territorial seas and

archipelagoes, as well as through straits used for international navigation.41

34 See Oxman, Law of the Sea Testimony, supra note 34; Moore & Schacte, supra note 30, at

4.35 Remarks aboard the U.S.S Kitty Hawk, 1 PUB. PAPERS 225 (June 6, 1963).36 See id. 37 See The White House, The National Security Strategy of the United States of America 27

(2002), available at http://www.whitehouse.gov/nsc/nss.pdf [hereinafter National Security

Strategy].38 Hearing on U.N. Convention on the Law of the Sea: Before the Comm. on S. Foreign

Relations, 115th Cong. (2007) (statement of Vernon Clark, former Chief of Naval Operations)

[hereinafter Clark, Law of the Sea Testimony]. See generally J. ASHLEY ROACH & ROBERT W.

SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS (2d ed. 1996).39 See Negroponte, Law of the Sea Testimony, supra note 10.40 See id. The territorial sea is regarded as the sovereign territory of the state, although foreign

ships are allowed innocent passage through it. Territorial seas include also airspace and seabedwithin twelve nautical miles of shore.

41 Innocent passage is defined as “[t]he right of all ships to engage in continuous and

expeditious surface passage through the territorial sea and archipelagic waters of foreign coastalstates in a manner not prejudicial to its peace, good order, or security. Passage includes stopping

and anchoring, but only if incidental to ordinary navigation or necessary by force majeure or

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Finally, the Convention sets forth maximum navigational rights and

freedoms for ships and aircraft in exclusive economic zones.42 In regards

to the United States’ non-party status, proponents of UNCLOS argue that

while these rights may exist in customary law, joining the Conventionwould put these provisions on firmer legal footing, as rights embodied in a

treaty are more fixed than those in customary law.43

Opponents of UNCLOS assert that the United States should not

become a party to a treaty in order to obtain navigational freedoms that the

United States already enjoys via customary law.44 This point is amplified

by the fact that UNCLOS has no provision for reservations or formal

mechanisms for states to exclude their participation from certain provisions

of a treaty.45 According to opponents of UNCLOS, it makes little sense to

incur the responsibilities of becoming party to a treaty when the rights of

the treaty are already enjoyed and there is no method of reservation to

minimize the ratification costs incurred by the United States.46

C. Military Operations

1. Maritime Interdiction Operations

Maritime Interdiction Operations (MIOs) involve the boarding of

vessels by the military for investigation of possible violations of

international law or other hostile activity.47 In 2007, piracy increased by

almost 14 percent, costing transport vessels upwards of $15 billion a year.48

distress, or for the purpose of rendering assistance to persons, ships, or aircraft in danger or

distress.” See UNCLOS, supra note 1, art. 17 & art. 52; id. 42 See Negroponte, Law of the Sea Testimony, supra note 10; Clark, Law of the Sea

Testimony, supra note 39.43 See Clark, Law of the Sea Testimony, supra note 39; John E. Noyes, The United States, the

Law of the Sea Convention, and Freedom of Navigation, 29 SUFFOLK TRANSNAT’L L. REV. 1, 7

(2005).44 See Meese et al., supra note 3, at 2; Doug Bandow, Don’t Resurrect The Law of the Sea

Treaty, 59 INT’L AFFAIRS 25 (2005).45 See UNCLOS, supra note 1, art. 309 (stating that “no reservations or exceptions may be

made to this Convention unless expressly permitted by other articles of this Convention.”);Martin Lishexian Lee, The Interrelation Between the Law of the Sea Convention and Customary

International Law, 7 SAN DIEGO INT’L L. J. 405, 417 (2006).46 See Bandow, supra note 45.47 See Hearing on the National Defense Authorization Budget Request Fiscal Year 2006:

Before the S. Appropriations Comm., 108th Cong. (2005) (testimony of Vern Clark, Admiral,

Chief of Naval Operations) [hereinafter Clark, Budget Testimony].48 See Bahar, supra note 21, at 4; Tom Malti, Piracy on the rise off Somalia, MAIL &

GUARDIAN ONLINE, Oct. 17, 2007,

http://www.mg.co.za/articlepage.aspx?area=/breaking_news/breaking_news__africa/&articleid=322157; Unprecedented rise in piratical attacks, http://www.icc-ccs.org/ , ICC Commercial Crime

Services, October 24, 2008, Last visited May 27, 2009.

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Most recently, in April 2009, Somali pirates took hostage the captain of the

U.S. flag ship, Maersk Alabama. Furthermore, as indicated by the PSI, the

threat of the spread of WMD has never been more serious.49 Indeed, MIOs

have been a key tool in curbing these threats and thus vital to theprevention of future acts of terrorism.50 Prior to Operation Iraqi Freedom,

MIOs largely involved boarding of vessels in the Arabian Gulf to ensure

compliance with the United Nations Oil For Food Program that was

initiated after Iraq’s unsuccessful invasion of Kuwait.51 After September 11,

2001 and the subsequent military operations in Iraq and Afghanistan, MIOs

have expanded commensurate with an increased terrorist threat.52

Proponents of UNCLOS assert that the treaty does not significantly

impact the way the United States military conducts MIOs.53 During

peacetime, UNCLOS permits the following: the boarding of vessels that are

flying the flag of the boarding state, the boarding of vessels that consent to

boarding, the boarding of vessels that are entering coastal state ports, and

the boarding of stateless vessels.54

During wartime or armed conflict,UNCLOS allows boardings in self-defense if under attack or threat of

attack and in accordance with other established maritime law and laws of

armed conflict.55 These provisions are sufficient for the United States to

continue to carryout MIO missions as currently employed.

Opponents to UNCLOS assert that becoming a party to Convention

will directly undercut the United States’ ability to conduct boardings and

seizures in the furtherance of the MIO mission.56 Opponents point to

provisions of UNCLOS that require international arbitration within ten

days of a boarding and detention, or the Law of the Sea Tribunal will have

jurisdiction to hear appeals for “prompt release.”57

49 See Hodgkinson, supra note 21, at 587; Clark, Budget Testimony, supra note 48.50 See Hodgkinson, supra note 21, at 587; Clark, Budget Testimony, supra note 48.51 See Containing Saddam Requires Continued Commitment by U.S. and Others, MIDDLE

EAST NEWS ONLINE, Mar. 26, 2000, available at 2000 WLNR 7946183; Hodgkinson, et al.,

supra note 21, at 587.52 See Hodgkinson, supra note 21, at 587; Clark, Budget Testimony, supra note 48.53 See UNCLOS, supra note 1, art. 110; Negroponte, Law of the Sea Testimony, supra note

10; Hodgkinson, supra note 21, at 591-92.54 See UNCLOS supra note 1, art. 110; Negroponte, Law of the Sea Testimony, supra note

10; Hodgkinson, et al., supra note 21, at 591-92.

55 See UNCLOS supra note 1, art. 110; Negroponte, Law of the Sea Testimony, supra note10; Hodgkinson, supra note 21, at 591-92.

56 See Jeremy Rabkin, How Many Lawyers Does It Take to Sink the U.S. Navy?, THE

WEEKLY STANDARD (Sept. 10, 2007), available at http://weeklystandard.com/Content/Public/Articles/000/000/014/052guyna.asp.

57 See id.

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2. Submarine Operations

Submarine forces are a key tool in waging the Global War on

Terrorism and their unimpeded use is of crucial significance.58

The use of submarine forces provides a unique tactical advantage because of a

submarine’s ability to monitor a potential enemy undetected for a long

duration.59 The ability to transit the ocean beneath the surface is therefore

critical to a submarine’s ability to maintain the advantage of covertness.60

The impact of UNCLOS on submarine operations hinges on

interpretation of Article 20 of the treaty.61 Gordon England, former

Secretary of the Navy, has stated that UNCLOS does not restrict or prohibit

submarine activities.62 UNCLOS specifically guarantees the right to

conduct transits through international straits in “normal modes”, which

may include submerged transit in the case of submarines. Nevertheless, the

Convention mandates that ships refrain from acts that are “prejudicial,”

including submerged transit in territorial waters; failure to meet thisobligation results in a vessel’s loss of innocent passage status.63 But,

UNCLOS does not explicitly prohibit submerged transit in territorial seas

altogether, especially in international straits.64 This notion is echoed by

Deputy Secretary of Defense, John Negroponte, who has stated that

UNCLOS “does not prohibit or impair [. . .] submarine activities in

anyway.”65

The Treaty’s critics construe Article 20 far more strictly.66

Acknowledging the vital role submarines play in ensuring national security,

opponents of UNCLOS state that Article 20 explicitly regulates submarine

activities in what are defined as “territorial seas.”67 Opponents assert that

Article 20, despite patterns of practice to the contrary, legally requires

submarines to transit archipelagos, straits, and other territorial waters on

58 See Fages, Submarine Testimony, supra note 22.59 See Fages, Submarine Testimony, supra note 22; Astley & Schmidt, supra note 22, at 133.60 See Fages, Submarine Testimony, supra note 22; Astley & Schmidt, supra note 22, at 133.61 See UNCLOS, supra note 1, art. 20. Article 20 enumerates some activities which are

“prejudicial” but does not explicitly define the term.62 See Law of the Sea Treaty Doesn’t Interfere With Sub Activities, England Says,

AEROSPACE DAILY & DEFENSE REPORT, Nov. 8, 2004, available at 2004 WLNR 14147324[hereinafter, sub activities].

63 If a vessel loses innocent passage status, its ability to transit through an international

straight may be hindered by a coastal nation asserting a claim. See UNCLOS supra note 1, art.20; Astley & Schmidt, supra note 22, at 131.

64 See UNCLOS supra note 1, art. 20; Negroponte, Law of the Sea Testimony, supra note 10.

65 See Negroponte, Law of the Sea Testimony, supra note 10.66 See Hearing on United Nations Convention on the Law of the Sea: Before the S. Comm.

on Foreign, 115th Cong. (2007) (statement of Frank J. Gaffney, Jr., President and CEO, The

Center for Security Policy) [hereinafter Gaffney, Law of the Sea Testimony]; Frank Gaffney, Jr., Deep-Six This Treaty, WASHINGTON TIMES, Feb. 24, 2004, at A16; Donovan, supra note 24.

67 See Gaffney, Law of the Sea Testimony, supra note 66, at A16; Donovan, supra note 24.

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the surface, thus destroying their strategic advantage.68

3. Intelligence Activities

The 2002 National Security Strategy states that the United States’

success in the Global War on Terrorism depends on the destruction and

disruption of terrorist organizations by “Identify[ing] and destroying the

threat before it reaches our borders.”69 Clearly, the United States’ ability to

conduct intelligence activities effectively is crucial to the prevention of

future terrorist activities.70 Thus, Article 19 of UNCLOS, which appears to

have ramifications for intelligence activity is highly significant.71

The impact of UNCLOS on intelligence gathering activities hinges on

the interpretation of Article 19(2)(c), namely what constitutes innocent

passage through coastal states’ territorial waters.72 According to proponents

of UNCLOS, the Convention will not significantly impact the United

States’ intelligence gathering activities.73 Proponents will admit thatintelligence gathering does not qualify for an innocent activity under

Article 19(2)(c) and therefore does not entitle the vessel conducting

intelligence activities to the benefits of innocent passage.74 But they note

that intelligence activities are not specifically prohibited or regulated by the

Convention.75

Opponents of the Convention read Article 19 as a severe impediment

to military activities.76 According to these opponents, Article 19 would

prevent the United States military from training with weapons, collecting

intelligence, and interfering with enemy communications in the territorial

waters of other states without their express permission.77 Article 19 further

enumerates activities that would not be protected, including any threats of

68 See Gaffney, Law of the Sea Testimony, supra note 66,, at A16; Donovan, supra note 24.69 See National Security Strategy, supra note 37, at 6; Jane Gililand Dalton, The United States

National Security Strategy: Yesterday, Today, and Tomorrow, 52 Naval L. Rev. 60, 68 (2005).70 See National Security Strategy, supra note 37 at 6; Dalton, supra note 69 at 68.71 See UNCLOS, supra note 1, art. 19.72 See UNCLOS, supra note 1, art. 19(2)(c).73 See sub activities, supra note 63; Negroponte, Law of the Sea Testimony, supra note 10;

Moore & Schacte, supra note 30, at 12.74 See sub activities, supra note 63; Negroponte, Law of the Sea Testimony, supra note 9;

Moore & Schacte, supra note 30, at 12.75 See sub activities, supra note 63; Negroponte, Law of the Sea Testimony, supra note 10;

Moore & Schacte, supra note 30, at 12.

76 See Gaffney, Law of the Sea Testimony, supra note 66; Donovan, supra note 23; OliverNorth, Law of the Sea Treaty on Fast Track to Ratification, FOX NEWS,

http://www.foxnews.com/story/0,2933,301279,00.html (last visited Oct. 29, 2007); Gaffney,

supra note 3, at A16.77 See Gaffney, Law of the Sea Testimony, supra note 66; Donovan, supra note 23; North,

supra note 76; Gaffney, supra note 66, at A16.

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force, intelligence gathering “to the prejudice of the defence or security of

the coastal State,” and any acts which are “aimed at interfering with any

systems of communication or any other facilities or installations of the

coastal State.”78

In short, opponents of UNCLOS contend that theaforementioned restrictions in territorial waters would be overly

burdensome on United States’ national security efforts.79

IV. ANALYSIS

There are compelling arguments both for and against the United

States’ ratification of UNCLOS.80 While the debate is multi-faceted and

complex, the central disagreement between those who oppose and those

who support UNCLOS stems from reliance on two different analyses of the

treaty’s ramifications.81 Essentially, proponents of UNCLOS suggest that

American gains from ratification of UNCLOS in terms of foreign policy

and alliance building will outweigh any concessions that the United Stateswould make by becoming a party.82 Opponents claim that because the

United States is already bound to many provisions of UNCLOS by

customary law, it is unnecessary to sacrifice any part of the United States’

sovereignty by becoming party to the Convention.83

In recent years, the United States has strained ties with several once-

strong allies across the globe.84 Due to lengthy negotiations, the large

number of involved parties, and the Convention’s broad implications,

UNCLOS quite possibly represents the largest and most complicated

multilateral treaty ever conceived.85 By becoming a party to the

Convention, the U.S. would send a clear message to the world that it

intends to be a partner of nations in forging the world’s future.86

Furthermore, from a broad strategic standpoint becoming a party would

78 UNCLOS, supra note 1, art. 19(2)(k).79 See Gaffney, Law of the Sea Testimony, supra note 66; Donovan, supra note 23; North,

supra note 76; Gaffney, supra note3, at A16.80 See, e.g., Walsh, Law of the Sea Testimony, supra note 66; Moore & Schacte, supra note

30; Sands, supra note 13; Helvarg, supra note 13; Goldsmith & Rabkin, supra note 6.81 See, e.g., Walsh, Law of the Sea Testimony, supra note 15; Moore & Schacte, supra note

30; Sands, supra note 13; Helvarg, supra note 13; Goldsmith & Rabkin, supra note 6.82 See, e.g., Walsh, Law of the Sea Testimony, supra note 66; Moore & Schacte, supra note

30.83 See, e.g., Gaffney, Law of the Sea Testimony, supra note 66; Goldsmith & Rabkin, supra

note 6.84 See Press Release, Congressional Press Release, Lugar Calls for Action on the Law of the

Sea Treaty (May 15, 2007) [hereinafter Congressional Press Release].85 See George Galdorisi, Law of the Sea Treaty Debated , WASH. TIMES, Mar. 29, 2005, at

A16.86 See Congressional Press Release, supra note 84.

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help realize Admiral Mike Mullen’s concept of a 1000-ship Navy.87

From a national security standpoint, arguments against the United

States becoming a party to UNCLOS are simply not compelling in the face

of overwhelming military support for ratification.88

Becoming a party toUNCLOS will help build coalition partnerships in the Global War on

Terrorism and the Proliferation Security Initiative.89 Moreover, the United

States Navy’s ability to respond to potential crises is critically linked to the

freedom of navigation rights guaranteed by UNCLOS.90 Finally, neither

large-scale military operations nor a single warship’s inherent right to self-

defense will be significantly impacted by becoming a party to UNCLOS.91

Indeed, the United States has declared that nothing in the UNCLOS impairs

the inherent right to self-defense or rights during armed conflict, including

any Convention provisions referring to “peaceful conflict” or “peaceful

purposes.”

Opponents to UNCLOS assert that the Convention is a strike against

American sovereignty because becoming a party will subject the Navy tointernational judicial review and will require the permission of an

international body to conduct combat operations.92 However, Admiral

Vernon Clark, former Chief of Naval Operations, and other top military

officials have directly refuted this assertion.93 In testimony before the

Senate Foreign Relations committee in 2004, Admiral Clark stated:

Joining the Convention supports the freedom to get to the fight, twenty-

four hours a day and seven days a week, without a permission slip [. . .]

I’m looking for every possible guarantee that I can find to ensure our

sailors’ safety and to keep them from needlessly going into harm’s way.

And that’s why I believe that we need to join the Law of the Sea

Convention, so that our people know when they’re operating in the

87 Admiral Mullen currently serves as Chairman of the Joint Chiefs of Staff. He proposed the

concept of a 1000-ship Navy while serving as Chief of Naval Operations. The 1000-ship Navyconcept is based on the idea of augmenting the United States Navy’s approximately 280 ships

with the ships of coalition partners, thus forming a 1000 ship Navy. See Hearing on the National

Defense Authorization Budget Request Fiscal Year 2008: Before the S. Appropriations Comm.,115th Cong. (2007) (testimony of Mike Mullen, Admiral, Chief of Naval Operations).

88 See, e.g., Walsh, Law of the Sea Testimony, supra note 15; Moore & Schacte, supra note

30 at 22.89 See, e.g., Walsh, Law of the Sea Testimony, supra note 15; Moore & Schacte, supra note

30, at 11; Oxman, Law of the Sea Testimony, supra note 33.90 See Clark, Law of the Sea Testimony, supra note 38.91 See, e.g., Walsh, Law of the Sea Testimony, supra note 30; Moore & Schacte, supra note

30, at 4; Oxman, Law of the Sea Testimony, supra note 33.

92 See James Lyons, U.S. LOST at Sea, WASH. TIMES, Oct. 5, 2007, at A16; Jeremy Rabkin,AMERICAN ENTERPRISE INSTITUTE, Do We Really Want To Place The U.S. Navy Under

International Judicial Supervision? (2007), available at

http://www.aei.org/publications/pubID.26837,filter.all/pub_detail.asp.93 See, e.g., Clark, Law of the Sea Testimony, supra note 39; Walsh, Law of the Sea

Testimony, supra note 16.

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defense of this nation, far from the shores, that they have the backing

and that they have the authority of widely recognized and accepted law

to look to, rather than depending only upon the threat or the use of force

of customary international law that can be too easily changed.

94

Admiral Clark’s statement indicates that becoming a party to

UNCLOS will help solidify United States rights that now exist only in

customary international law.95 Opponents of UNCLOS claim that the

United States should not become a party because the United States already

enjoys the benefits of UNCLOS through customary law and, therefore,

should not unnecessarily incur the treaty’s burdens.96 This assertion,

however, ignores the fact that customary law can change and can also be

influenced by how parties to UNCLOS decide to interpret its provisions.97

If the United States is not a party, it will have no say as to how the law

develops.98 By becoming a party to UNCLOS, the United States will be

able to ensure that the law of sea develops in congruence with its national

security and other interests.99 Finally, the argument that the United States’ agreement to settle

disputes through an international body will hurt military operations is

soundly refuted by the text of UNCLOS.100 Article 298(1) allows for states

to make declarations in regard to its acceptance of any provision of the

Treaty.101 To this end, the United States has declared that its consent to the

Convention is conditioned upon the understanding that each state has the

exclusive right to determine which activities qualify as “military

activities.”102 In a declaration conditioning the United States accession to

the treaty, the United States maintained that “under article 298(1), each

State Party has the exclusive right to determine whether its activities are or

were ‘military activities,’ and that such determinations are not subject to

review.”103 Furthermore, these determinations are not susceptible to any

94 See Clark, Law of the Sea Testimony, supra note 38.95 See id. 96 See Goldsmith & Rabkin, supra note 6; Gaffney, Law of the Sea Testimony, supra note 67.

38. 98 See White House Press Release, supra note 1; Moore & Schacte, supra note 30, at 20;

Oxman, Law of the Sea Testimony, supra note 33.99 See White House Press Release, supra note 1; Moore & Schacte, supra note 30, at 20;

Oxman, Law of the Sea Testimony, supra note33.100 See UNCLOS supra note 1, article 298(1); U.N. Convention of the Law of the Sea: Hearing

Before the S. Foreign Relations. Comm. 108th Cong. (2003) (testimony of Michael G. Mullen,Admiral, U.S. Navy, Vice Chief of Naval Operations) [hereinafter Mullen, Law of the Sea

Testimony]; John A. Duff, The United States and the Law of the Sea Convention: Sliding Back

from Accession and Ratification, 11 OCEAN AND COASTAL L.J. 1, 19 (2006).101 See UNCLOS supra note 1 article 298(1); Duff, supra note 100, at 13.102 See UNCLOS supra note 1 article 298(1); Duff, supra note 100, at 13.103 Declarations and Statements of Understandings to Be Made by the United States when

Acceding to the Convention

For the text of the Resolution of Advice and Consent to Ratification, see “United Nations

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