Military, Civilian Officials Urge Accession to Law of Sea Treaty

By Jim Garamone
American Forces Press Service

Sept. 28, 2007 - Defense Department civilian and military leaders urged the Senate to ratify the United Nations Convention on Law of the Sea. Deputy Defense Secretary Gordon England and Adm. Patrick M. Walsh, vice chief of naval operations, strongly supported the United States acceding to the treaty. The two defense leaders and Deputy Secretary of State John D. Negroponte testified before the Senate Foreign Relations Committee yesterday.

England emphasized the importance of access to the world's largest maneuver space: the oceans. "We need to have global mobility 24/7, 365 days a year, with no permission slips," England said. "The treaty preserves the (Defense Department's) navigation and overflight rights," emphasizing that the treaty covers transit passage "under, through, and over critical choke points."

The national security benefits of acceding to the treaty are significant, "and they substantially and unquestionably outweigh any perceived risk. The Department of Defense strongly supports the Law of the Sea Conventions, and we ask the Senate for your advice and support in joining the convention," England said.

England's testimony stressed that the Law of the Sea Treaty is an opportunity.

Nations negotiated the Law of the Sea Treaty between 1973 and 1982. The treaty sought to update the customary law of the sea that existed from the 1600s on. While U.S. officials helped hammer out the treaty, objections to the deep-sea mining clause caused the nation to not accede to it.

U.S. officials have signed the treaty, but the Senate has not ratified it. More than 150 other nations have accepted the treaty, and it has been in force since 1994.

U.S. objections have been addressed, Negroponte said in his testimony. President Bush has urged accession to the treaty, and it probably is headed for a vote in the Senate this session.

From the military perspective, the treaty guarantees various aspects of passage and overflight. The nation has invested hundreds of billions of dollars over the years building the infrastructure needed to transport troops and equipment over global distances. Combat ships, oilers, sustainment ships, transport aircraft, tankers and pre-positioned assets all are key to getting combat power where it is needed, often within hours.

The treaty guarantees right of passage through some of the most strategic areas of in the world. The Joint Chiefs of Staff sent a "24-star" letter to the Senate in June, urging accession. "The convention codifies navigation and overflight rights and high seas freedoms that are essential for the global mobility of our armed forces," the letter says. "It furthers our National Security Strategy, strengthens the coalition and supports the President's Proliferation Security Initiative."

The Proliferation Security Initiative is a collective approach of about 90 nations to use all their national and international authorities to interdict the shipment of weapons of mass destruction and related material. "(The United States) joining the convention will help expand the number of nations that participate in (the initiative)," Walsh said. "Strategic nations such as Indonesia and Malaysia will be more likely to join (the initiative) if we in turn join the convention."

Walsh also told the senators that the convention does not unduly limit U.S. forces' freedom of action.

"There is a perception held by some that by joining the convention our armed forces will somehow be constrained – if not by the actual language by the convention then by international tribunals or arbitration panels operating under the authority of the convention," he said. "I could not support the treaty if I thought the treaty curbed the reach or the authority or limited in any way our actions."

From the Defense Department perspective, it's all about global mobility, said Rear Adm. Bruce McDonald, the Navy's judge advocate. "It's all about getting out and doing the business of the military on seven-tenths of the Earth's surface," he said.

The need for the treaty was driven home to military leaders in the early days of Operation Iraqi Freedom, when Turkey denied overflight rights, MacDonald said. "A lot of this was a result of the fact that we cannot rely on other nations to allow us to overfly or base forces on their territories," he said.

The treaty guarantees certain rights: the right of innocent passage, transit passage and archipelagic sea lanes passage. Of these, transit passage is the most important, MacDonald said. "It allows us to use the strategic choke points – Hormuz, Malacca, Singapore Strait – these international straits are defined as international straits under the treaty," he said.

The treaty allows ships traversing these passages to do so in a normal mode. "If you are sailing an aircraft carrier, normal mode is with aircraft flying, helos flying, a (combat air patrol) in the air providing force protection," MacDonald said. "If you are in a battle group that means you have cruisers and destroyers screening the carrier.

"If you are going through the Strait of Hormuz, that is important because you have Iran on the right and you want that kind of protection as you are going through."

Until now, the United States has relied on customary international law. "Yes, many of the principles enshrined in the Law of the Sea Treaty have become a matter of custom," MacDonald said. "The problem is that what has been the custom of nations can change over time."

The treaty gives the United States the opportunity to lock these rights in and get positive treaty law as the basis for doing the nation's business.

Another argument for acceding to the treaty is that it buys the United States a seat at the table for any future negotiations. "Now that it has come into force, treaty law can be changed by those nations that have acceded to it," MacDonald said. "We think the United States, as the largest maritime power on the Earth, ought to take the lead in future development of maritime law, and this is a perfect way to do that."

The United States cannot stay outside the treaty and hope to influence negotiations or work through proxies, the admiral said.

"We need to lock in the navigation and the overflight rights and high-seas freedoms contained in the convention," Walsh said. "And then by acting from within the convention, we can best exercise as our leadership to ensure that those rights and freedoms are not whittled away foreign states."