The UN Law of the Sea Treaty: Threatening to Put the U.S. Navy in a Straitjacket

by RICHARD DOUGLAS February 23, 2010
In her article entitled “Why we need the Law of the Sea Treaty (Navy, December 2009), Meg Giles deserves credit for revisiting a politically and legally controversial topic with direct implications for the Navy: whether the U.S. should accede to the vast and deeply flawed UN Convention on the Law of the Sea (“UNCLOS” or “the Convention”).
But the article – essentially a review of venerable pro-UNCLOS talking points – failed to explore adequately the concerns of many UNCLOS opponents. This should be remedied because Ms. Giles wrote for a Navy audience, and it is precisely the Navy which is most likely to suffer direct harm from U.S. accession to UNCLOS.
Your readers need more information about UNCLOS to fully appreciate what is at stake for our fleet. Thus, I would like to offer a few arguments in opposition to UNCLOS from the perspective of a naval officer and lawyer with some fairly extensive international experience and knowledge of the Convention. There are many more flaws in UNCLOS than I list here, but I will start the discussion with a few major points.
The Navy supports U.S. accession to UNCLOS. A recurring theme found in Navy public statements supporting UNCLOS is that accession is the only way to safeguard the international freedom of navigation norms which are written into the Convention, and which our nation and the Navy need.
In the first place, and with all due respect, it should be noted that this position is an affront – albeit unintentional – to the Framers of our Constitution. Our Navy’s freedom to navigate does not flow from UNCLOS, customary international law, or even from centuries of the customs and usages of the sea: rather, it flows solely from the will of the American people, manifested in Articles I and II of the U.S. Constitution. UNCLOS supporters often lose sight of this, but it is critically important to bear in mind. Our Constitution is the source of legitimacy for America’s role in the world, not the UN Charter or a UN treaty.
In the second place, a reader’s logical assumption upon seeing the Navy’s pro-accession argument is that the vital international freedom of navigation norms the Navy desires are not codified already somewhere else. But this assumption is wrong: in truth, virtually everything that the Navy insists can only be protected by accession to UNCLOS is already covered in existing treaties to which the U.S. is a party. These treaties remain in force, and will remain in force independently of UNCLOS.
A series of international conventions on freedom of navigation was opened for signature in 1958, and the U.S. became a party to most of them. Nearly all the navigational provisions in UNCLOS (an example of one exception: transit passage through archipelagic straits) were lifted verbatim from the 1958 conventions. As such, UNCLOS is largely redundant and unnecessary because it simply repeats norms which are already codified and binding in other treaties.
In light of this, one may rightly wonder: if the Navy wants UNCLOS and UNCLOS simply replicates something that is already in force and harmonious with U.S. interests, where is the harm in U.S. accession to UNCLOS?
A good question and here is the answer. The harm would be concrete, and potentially irreversible, in the following way: the 1958 conventions did not interfere with the exclusive right of countries accepting these treaty regimes to solve navigational disputes bilaterally (where our leverage is strongest). In contrast, UNCLOS created a massive international UN court in Hamburg, Germany, to resolve disputes arising under the Convention on issues like – you guessed it – freedom of navigation.
Thus, U.S. accession to UNCLOS would be a watershed moment, posing a very new and very concrete reality: for the first time, our adversaries would be able to use a UN tribunal to help them restrict or hamper Navy navigational decisions which may now, under the 1958 regime, be made freely and solely by our nation, without UN or other international interference.
This begs another question: why would the U.S. knowingly surrender the bilateral leverage it now enjoys under the 1958 conventions and trade it for a UN Convention (UNCLOS) that saddles us with a UN court? And why would our Navy leaders favor such an objectively damaging scenario?
These are logical and fair questions, and the answer is simple: because Navy leaders – who are generally not experts in international diplomacy or treaty law – are forced to rely on assurances from law school professors, State Department lawyer/diplomats, and Navy lawyers that, under UNCLOS, “our military activities could never be reviewed by the UN court” (presumably this would include intelligence activity, but this is left dangerously unclear in the Convention).
The professors, diplomats and lawyers confidently assure Navy operational leaders, line officers, and salts that the Navy would be safely and fully “insulated” from the UN court by the UNCLOS text and that the UN court will never overstep its bounds.
But hold on. Not so fast.
In the 4th Amendment to the U.S. Constitution (dealing with searches and seizures), the words “exclusionary rule” and “Miranda warnings” do not appear. So where did these now-familiar concepts in our search and seizure jurisprudence come from?
Answer: they are the inventions of activist judges who disregarded efforts by U.S. federal and state prosecutors to prevent judicial re-writing of the Constitution’s plain text.
In explaining the meaning of our 4th Amendment, for years the U.S. Supreme Court – over the objections of executive branch prosecutors – has attached new meaning and twists to the plain text of the Constitution that would probably baffle the men who wrote it. In fact, today “exclusionary rule/Miranda” jurisprudence would fill a library, even though these concepts are not mentioned anywhere in the Constitution. Another American example of the “activist court” phenomenon is the Roe v. Wade decision, but that will have to wait for a future paper.
The point here is not that exclusionary rule/Miranda jurisprudence is “bad:” rather, it is that an activist, politicized court – even one of our own – with a pre-determined result quietly in mind will not hesitate to “steamroll” the opposition, no matter how well-founded its Constitutional arguments might be against that result.
In like manner, if the U.S. accedes to UNCLOS, the assurances given today to our Navy leadership won’t mean a thing. It will emphatically not be Navy and State Department lawyers handing down pronouncements on what UNCLOS (“military activity”) means. Rather, this function will be performed by the activist UN tribunal itself.
In other words, by accepting UNCLOS, U.S. bilateral leverage in navigational disputes will disappear with the stroke of a pen. It will be replaced with a fervent hope, a wish, and a roll of the dice that activist UN judges plucked from the developing world will resist the opportunity to go after our Navy and its global role – no matter what the Convention text says about the sanctity of military operations.
Cheered on by our adversaries, these UN judges will freely hand down restraining orders, advisory opinions, and decisions (whether we like it or not) about our Navy’s navigational activity – and our intelligence activity – that are unreviewable. And unlike own system, under UNCLOS there is no vigilant legislature capable of reining in the excesses of an overreaching and politicized UN tribunal. The only way to avoid this is to avoid accession to UNCLOS.
Couldn’t the Navy just ignore bad UN court decisions? Not likely.
If the U.S. joins UNCLOS, inside our very own executive branch Navy shipdrivers will be far outnumbered by UNCLOS supporters. The Navy will not be the final authority on whether and how politicized UN tribunal decisions must be observed. Rather, this critically important prerogative will be asserted and jealously guarded by State Department diplomats, State Department lawyers, NOAA oceans activists, and EPA environmentalists. Long history and hard experience should remind Navy leaders that diplomats, environmental activists, and their lawyers cannot be expected to make calls that warfighters, shipdrivers, or broader American interests will always welcome.
It should also be noted that U.S. accession to UNCLOS will be a force-multiplier for home-grown opponents of Navy activity. Opponents of SONAR training and other vital Navy operations will quickly use UNCLOS in U.S. federal and state courts to hamstring our fleet. The Navy has battled back such challenges so far, but UNCLOS accession will change the landscape dramatically in ways unfavorable to our fleet and its operational readiness.
With the U.S. in UNCLOS, the Navy will be forced to defend its equities – America’s equities – on at least three fronts: against at an unaccountable UN tribunal in Germany; within our own executive branch here at home; and in our own federal and state courts. No matter where you come down on accession to UNCLOS, these are all bad things for the Navy. And they would be unavoidable.
The magnitude of the flaws permeating UNCLOS and the other unpersuasive arguments deployed in favor of accession are beyond the scope of this article. But two glaring examples must be noted: the oft-repeated myth that the Clinton administration somehow “repaired” the UNCLOS defects that led President Reagan wisely to reject the Convention; and the myth that UNCLOS permits a specific U.S. “veto” over activity within the Convention regime. In fact, the words “veto” and “United States of America” do not appear anywhere in UNCLOS, its annexes, or the Clinton protocol. See for yourself.
Most of these flaws do not bear directly upon Navy equities. But it is enough to note that for our Navy, U.S. accession to UNCLOS would be a surrender of national options and mobility without historical precedent. The only way to avoid this is to avoid accession.
In conclusion, it is worth noting that there have been moments in the history of our beloved Navy when senior Navy leadership, civilian and uniformed, genuinely believed in (and practiced) the following articles of faith:
U.S. warships could not function without sails, masts, and rigging;
U.S. warships could not function with female sailors;
U.S. warships could not be stopped by aerial bombing;
U.S. warships could not function with racially integrated wardrooms;
U.S. warships could not function without daily rations of “grog”;
And my personal favorite, as a former enlisted sailor:
U.S. warships could not function without the “cat of nine tails.” (Levy, Dana, Melville, may heaven preserve all of you.)
Like most articles of faith, these ones also proved to be false. Thus, it is with skepticism that, in our own age, I hear strong assertions from the Navy (and those who try to use the Navy to batter down UNCLOS opponents) that the mobility of our fleet can only be assured if the U.S. becomes a party to UNCLOS. This article of faith, too, is untenable, partly for the reasons discussed above, and in fact the opposite is closer to the truth: U.S. accession to this vast and deeply flawed Convention may do more to cripple our fleet with international and domestic legal impediments – “lawfare” – than any adversary we have faced since Independence.
Ordinary Americans are smart. Without knowing the intricacies of UNCLOS, Americans have clearly demonstrated their unease over the broad prospect of forcing our Navy into an UNCLOS straitjacket. This simply does not sit well with them.
Though not true in all cases, it is fashionable among many UNCLOS supporters to dismiss UNCLOS opponents as uninformed misfits. On this point, I want to note a particularly patient and respectful listener to UNCLOS opponents: former Navy Judge Advocate General VADM Bruce MacDonald.)
But the concern and uneasiness of opponents is reflected in the failure of two Senate efforts in recent years to move the Convention to final Senate approval. In fact, such concern is fully justified, and may turn out to be the most important defense against the calamities that would befall our Navy following U.S. accession to UNCLOS. Contributing Editor Richard J. Douglas, LCDR (USNR), has served as chief counsel of the Senate Foreign Relations Committee and General Counsel of the Senate Intelligence committee. He was a Deputy Assistant Secretary of Defense from 2006 to 2009. He was recalled to active duty and deployed to Iraq in 2006-07. In the 1970s he was a machinist’s mate on a fast attack submarine. Reach him in Washington DC at

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