In 1973, the Royal Naval College Greenwich celebrated its 10oth anniversary. To mark the occasion, the College hosted the first-ever international Law of the Sea Conference. I was privileged to be a senior lecturer and tutor in uniform from 1972–74, and the Admiral President designated me host to several of the distinguished guest speakers. Foremost of these was Professor Daniel Patrick O’Connell, a New Zealander by birth and a graduate of Auckland University, the Chichele Professor of Public International Law at Oxford University, and at the time regarded as the foremost expert on the law of the sea. He delivered outstanding presentations on the current status of the law of the sea and his ideas for the future. His books on the law of the sea are still widely read to this day. His posthumous, The International Law of the Sea, published by Oxford University in 1982, remains, with his many international law publications, a lead reference. He had a significant impact on what led in due course to the United Nations Convention on the Law of the Sea (UNCLOS).
I continued communications with Professor O’Connell until his untimely passing in Oxford in 1979. He inspired me to become a student of international law and the Royal Navy supported and funded my admission to Lincoln’s Inn in 1975 and I subsequently was called to the Bar as a Barrister, with a lifelong interest in the law of the sea. The ideas expressed here are not those of a layperson but an almost half century veteran of the law of the sea.
UNCLOS is hugely relevant to the U.S. Navy. The United States is not a signatory to the Convention though the it does recognize UNCLOS as a body of “customary law.” The latter though is significant from formal membership of this vital and very relevant Convention at a time when China and other nations have committed serious violations of the Convention. The question is immediately posed as a result, “How can the United States, and specifically the U.S. Navy, enforce the law of the sea embodied in UNCLOS, if it is not a signatory?”
Nonmembership of UNCLOS possibly places the United States in a vulnerable and perhaps equivocal position in certain scenarios, even though the U.S. Navy maintains the “customary law” recognition of such basic international law principles as freedom of the seas, the rights of passage, and the various rights associated with territorial waters.
UNCLOS lays down a comprehensive body of law and order for the world’s oceans and seas. Rules covering the use of the oceans, including their resources and mineral claims, and coastal waters jurisdiction and territorial rights and limits, are allied to traditional rights of passage and freedom of the seas established international norms. The United States refused to sign the Treaty, and it has never been ratified by the U.S. Senate. As of June 2016 there were 167 countries, including the European Union, fully signed members of UNCLOS.
The United Nations has no operational role in the implementation and enforcement of UNCLOS. However, other UN related agencies are directly involved in significant ways. The International Maritime Organization (IMO), the International Whaling Commission, and the International Seabed Authority play important operational roles. Bear in mind that about 98 percent of the world’s internet communications travel via undersea cable. The United Kingdom, China, and Russia are full signatories, not so the United States.
Chinese territorial violations in the South China Sea have been ruled on by the International Court of Arbitration to China’s detriment, and there are, for example, ongoing serious issues in the eastern Mediterranean regarding Turkey’s violation of Greece and Cyprus’ exclusive economic zones by exploiting drilling. These examples relate to the maintenance of international order, and the ways in which the progressive democratically aligned states have sought to keep the world away from another World War Two, or very worst case nuclear Armageddon.
The United States has a distinguished historic record of preserving international order and supporting legal enforcement. How can the U.S. Navy and Coast Guard enforce the law of the sea if the United States is not a fully signed up and ratified member of UNCLOS? Or, alternatively, is it even necessary that the United States becomes a full signatory, given its historic position on international order at sea? The short answer, legally, is that the position is at best equivocal. Some may argue that it is non sustainable, and particularly with regard to enforcing and preventing further violations by China. What is the substance of this argument?
The U.S. Pacific Fleet, together with key allies, is the guardian of freedom of the seas, not just in the Pacific Ocean but eastwards through the Malacca, Sunda, and Lombok Straits into the Indian Ocean. China has a well documented maritime strategy for the 21st century. UNCLOS is an international body of law that the U.S. Navy and its allies can collectively and legally enforce. What may this entail as China becomes increasingly belligerent and seeks to possibly expand its sphere of interest to what it has openly stated in its polices as the “Outer Island Chain?” No one wants a war in East Asia. That is a given. However, deterrence, through allied strength and the maintenance of legally established and agreed UN norms, can be enforced, in an international forum, and prevent the worst from happening.
President Theodore Roosevelt stated in 1902, “A good Navy is not a provocation to war. It is the surest guarantee of peace.” Collective allied action, persistent and forward deployed presence, is essential, and legal representation of UNCLOS is indeed paramount for justifying, for example, allied presence in the Taiwan Straits and other sensitive waterways. Australia, the United Kingdom, Japan, South Korea, Malaysia, New Zealand, and India, together with the U.S. Navy, make a formidable “law enforcement machine.” UNCLOS provides the legal backbone to this “alliance strategy.” How then does UNCLOS interact with reality at sea, growing Chinese intransigence and disavowal of international norms, in the context of an alliance strategy, an “Allied Ring of Fire” in the Indo-Pacific area of operations, from the Bab El Mandeb Straits to the west coast of the United States?
Forward deployed, and persistent presence, is crucial, together with regular exercises and continuous interoperable training. Worst case scenarios may have to include “blockade,” a naval mechanism that was used successfully for centuries by the Royal Navy. Allied strength, with the full authority of UNCLOS, can make a formidable deterrent for reckless conduct at sea. To make this happen, it seems clear that the U.S. Senate should fully ratify UNCLOS and use this occasion to let the world know that the United States is returning to its historic role as a leader in maintaining the international order via the enforcement of international law. In addition to containing Chinese hegemonic ambitions, the United States and its allies can prevent crimes involving human trafficking, drug running, illegal arms shipments, terrorist-related operations at sea, various human rights violations and associated crimes against humanity, and state-sponsored or surrogate violations of states’ natural resource rights. These issues will take center stage this century, together with many UN resolutions that require enforcement at sea, and fall within the remit of the U.S. Navy and its allies, under UNCLOS.
Let’s look at realities in the South China Sea, and the earlier lost opportunities by the United States to take measures based on well established “naval diplomacy” mechanisms, ones that the U.S. Navy and its allies pursued vigorously and effectively during the Cold War. Two examples will suffice. On 9 May 2012, about 200 miles south east of Hong Kong, China moved a platform into well established Vietnamese territorial waters. On 2 May 2014 China moved the rig to the Paracel Islands. Vietnam protested again, but regrettably there was no support for Vietnam’s cause and no means of countering China’s action. Between December 2013 and October 2015, China built artificial islands with a total area close to 3,000 acres on seven coral reefs in the Spratly Islands in the southern part of the South China Sea. China proceeded to fortify and weaponize them. There are multiple other examples of Chinese violations in the South China Sea. U.S. national security advisors and their staffs at the time of these occurrences were both inexperienced and unknowledgeable of the ways and means to employ the U.S. Seventh Fleet in concert with major Asian allies to counter Chinese moves, and to support with classical international diplomacy and pressure on China. UNCLOS provides the international legal backbone for such countervailing actions. UNCLOS is both the means and the ends.
There are lessons still to be learned from the United States’ successful management of the Cuban Missile Crisis in which President John F. Kennedy brought in very experienced advisors from both sides of the political aisle, irrespective of political affiliation. President Kennedy’s naval background and excellent counseling from first-rate advisors led to a peaceful and successful outcome. China’s aggression in the South China Sea went unchallenged during the period of island and reef seizure and occupation, all in violation of international law, as determined not by the United States but the International Court of Arbitration based on extensive review of China’s claims and the key precedents in the region. Apparent weakness by the United States merely served to encourage further Chinese adventurism at a time when a body of critical international law remained unenforced.
The lessons to be learned are clear. The United States has a right under international law to be proactively engaged in concert with its allies.
