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After nearly a decade of trying and many promised “last sessions,” the Third United Nations Conference on the Law of the Sea finally—on 30 April 1982—adopted a comprehensive Convention on the Law of the Sea. The Convention, which was opened for signature in Montego Bay, Jamaica, in December 1982, will come into force one year after the 60th instrument of ratification is deposited with the U. N. Secretary-General. The Convention’s 320 articles and eight annexes cover a broad spectrum of issues, ranging from the regulation of navigation to the mining of polymetallic nodules on the deep ocean floor. Sandwiched between these two issues are a myriad of rules governing other uses of the world’s hydrospace. These include regulations for the protection of the marine environment, conservation of the living resources of the sea, and the regulation of marine scientific research.
The Conference adopted the Convention by the lopsided margin of 130 nations voting in favor, four against, and 17 abstaining. The only major power casting a negative vote was the United States. This negative vote by the United States and its failure to sign the Convention last month because of dissatisfaction with the seabed mining regime1 raises crucial questions regarding our future naval and air mobility.
From the perspective of naval mobility, the most significant features of the Convention are:
► A 12-nautical mile territorial sea with a right of innocent passage by ships of all nations ► A straits passage regime that permits submerged transit and overflight
► An exclusive 200-mile economic zone in which the coastal state has the exclusive right to manage the living and nonliving resources of the sea ► A continental shelf regime in which the coastal state has the exclusive right to manage the living and nonliving resources of the continental shelf to a minimum of 200 nautical miles and in some cases 350 miles or beyond—in extreme cases, to 100 miles beyond the 2,500-meter isobath ► Validation of the concept of archipelagic seas giving certain island nations substantial regulatory powers over vast areas of the ocean2
A comparison of the above provisions with the four 1958 Geneva Conventions on the Law of the Sea would suggest that the new Convention represents a step backward for naval mobility. A more careful analysis will demonstrate, however, that this is not the case. The provisions of the draft treaty enhance, rather than detract, from naval mobility.3
One noted publicist defines international law as “The body of rules and principles of action which are binding upon civilized states in their relations with one another.”4 This body of rules has two sources. The first and oldest is known as “customary international law"—state practice and how states behave in relation to one another. The formation of customary international law is a process of claim and counterclaim by which the interaction of states over a period of time determines the rules by which they will conduct themselves.
The second source of international law is the specific contractual arrangements, such as treaties or conventions, by which states agree to regulate their conduct toward each other. This latter type of international law is called “conventional international law.” Customary international law is binding generally on the international community, whereas— strictly speaking—conventional international law is binding only on the parties who have signed or ratified a particular agreement.
To appreciate the impact that the Convention may have on naval operations, an understanding of state practice—that is, claims to exercise control over areas of operational significance—is necessary. The most fundamental of these claims relates to the breadth of the territorial sea. In 1793, Secretary of State Thomas Jefferson, acting on behalf of President George Washington, proclaimed a three-mile territorial sea—widely accepted among nations as the distance that a cannon defending the shore could fire.5
It was not until the end of World War II that the permissible breadth of the territorial sea was seriously questioned. The war resulted in an exponential growth in ocean-related technology that raised the potential for reaping vast benefits from the sea at greater and greater distances from shore. There was also the realization that one of the fundamental assumptions on which the ocean regime was based— that the resources of the sea were unlimited—was not true. Thus, coastal states acquired a motive to extend the band of water in which they were entitled to exercise exclusive, or nearly exclusive, control.6
Still another factor that contributed to the demise of the universal acceptance of the three-mile territorial sea was the dismantling of colonial empires in the wake of World War II. Many emerging nations no longer felt bound by the rules of international law formulated by their colonial rulers. Many others sought to flex their new-found political muscle in rejecting long-held international law standards.
A 1958 United Nations Conference produced four conventions on the Law of the Sea, including the Territorial Sea Convention. That convention goes into great detail concerning rights in the territorial sea and the technical details of how the territorial sea is measured but, surprisingly, does not specify the maximum width of the territorial sea. It is ironic that, in 1982, on the eve of the Convention, the proper standard was more in question among the members of the international community than it was at the end of the 18th century.
With 80 of 136 states claiming 12-nautical mile territorial seas and only 22 states persisting in their three-mile claims, there is little doubt that the 12- mile limit is clearly emerging as the norm of customary international law.7 This expansion—except in the case of straits passage—will generally have no significant impact on naval operations. Modern weaponry tends to make the breadth of a territorial sea almost irrelevant as a defensive perimeter. Such rationale does not, of course, apply to the naval presence mission (or the use of naval forces in their political role). In some cases, however, technological advances possessed by the target state will still permit naval presence forces to exercise a degree of coercive influence on that state even though beyond the visual horizon.
Expansion of the territorial sea to 12 nautical miles means that 116 straits with high seas corridors in which we can exercise unlimited high seas freedom would be overlapped by territorial seas. Although use of such straits would include a right of innocent passage, this does not include submerged passage or overflight. Consequently, a simple 12-mile territorial sea regime would clearly be incompatible with modern naval operations.
The treaty, however, takes care of this deficiency by the mechanism of a regime called “transit passage.” Transit passage is similar to innocent passage except that it permits submerged passage and overflight of these straits. To a large extent, then, the treaty simply means business as usual for submarines and aircraft. In reality, however, transit passage enhances submerged transit and overflight. A strait less than six miles wide is not currently subject to the right of overflight. Submerged transit or overflight no longer needs to be made in a high-seas corridor, but may take place anywhere within the strait.
After the question of straits passage, the treaty issue of most importance to naval operations involves the juridical status of waters which allegedly are an integral part of many island states. Such claims involve drawing baselines around the outermost points of the outermost islands of the archipelago for purposes of measuring the territorial sea. Waters lying inside the baselines are considered by such states to be internal waters, much like bays and rivers. Thus, consent of the archipelagic state is required to enter these waters. The difficulty is that many of these archipelagic claims (principally in the Pacific including Indonesia, the Philippines, and Fiji) are astride major oceanic transit routes, thereby screening out large areas in which to conduct unfettered naval operations. Although the United States does not recognize these claims, its vessels transit such areas in many cases with real political costs. Whether the price is the lack of support of the claimant nation on some esoteric issue before the United Nations or the failure to gain approval for a nuclear- powered warship visit, the assertion of U. S. rights in the face of these excessive claims does carry a price.
The new Law of the Sea Convention validates the concept of archipelagic states with special rights concerning waters inside the archipelago. The treaty considers waters inside the baselines as "archipelagic waters” whose juridical status is much closer to the territorial sea rather than internal waters. In addition, the treaty places limits on what states can claim archipelagic status both in terms of land-to- water ratios and the permissible length of the baselines. Most importantly, the treaty provides for a right of “archipelagic sea-lanes passage,” meaning that ships of all nations have a right to transit the archipelago in sea-lanes specified by the archipelagic state and approved by the International Maritime Organization (IMO)s or, alternatively, through sea-lanes currently used for international commerce. Although the language of the treaty is not entirely clear, it is generally understood by Conference participants that the right of archipelagic sea- lanes passage includes submerged transit as well as the right of overflight. As a practical matter, because operations are confined to these sea-lanes, they will probably have little impact since the frequent presence of shallow waters beyond the sea-lanes is not conducive to naval operations. Consequently, the treaty holds out for its adherents some real advantages in terms of naval mobility.
The final issue that merits discussion is the exclusive economic zone (EEZ). Although the 1958 Conventions are silent on the subject, 56 nations currently claim some form of an EEZ.9 The major point of dispute does not involve the breadth of the zone, but rather the extent of the jurisdiction of the coastal state within that zone. The new Convention recognizes the legitimacy of such zones and restricts the right of the coastal state to resource-related functions. The importance of this is that waters of the economic zone beyond the territorial sea retain their high seas-like character. While naval vessels must have “due regard to the rights and duties of the coastal state,” and the coastal state may make resource-related regulations, these new economic zones will not have a significant impact on naval operations.
As important as the provisions of the treaty are to naval mobility, equally important is what the treaty does not say. Several “eleventh hour” amendments to the navigational articles—had they passed—could have been disastrous to naval mobility.
Romania, among other states, introduced amendments to Article 21 (concerning innocent passage). The Romanian amendment would have—in effect —authorized a warship notification regime. But in the face of strong opposition, these proposals were withdrawn shortly before voting on the amendment in order to avoid creating a negative Conference record on this issue. Spain proposed that military aircraft transiting over straits must comply with International Civil Aviation Organization (ICAO) procedures. The result of this amendment would be to require military aircraft currently exempted from compliance with ICAO procedures to check in with coastal state flight-following facilities. This amendment was defeated by a vote of 55 to 21, with 60 abstentions.
Finally, Turkey attempted to rescind the prohibition against reservations to the Convention (unless expressly permitted by other articles). Such a measure would have allowed each coastal nation to "pick and choose” only those parts of the treaty it was willing to accept. The Convention’s participants registered their overwhelming disapproval of Turkey’s initiative—that would have emasculated the carefully woven “package deal” on navigational freedoms—by a 100 to 19 vote.
The treaty process has resulted in a rather clear victory for proponents of naval mobility. Not only do the navigational articles define a regime that is generally satisfactory from a naval perspective, but the action taken on amendments to the text clearly defines the outer limits of coastal state authority. Despite the protestations of cosponsors of the warship notification amendment, its withdrawal—on the verge of a negative vote—suggests a rejection of the concept by the international community. Taken together, the text and rejection of efforts to amend it should:
► Slow the proliferation of excessive maritime claims
► Provide a legal yardstick against which the validity of maritime claims can be judged
► Provide a more stable environment in which to plan and conduct future naval operations
► Permit the conduct of naval operations in most cases without the political costs we now pay in exercising our navigational freedoms
Having discussed the benefits of the Law of the Sea Convention, we return to our point of departure: the United States was the only major power to cast a dissenting vote—out of more than 150 Conference participants (the other three “no” votes were cast by Venezuela, Turkey, and Israel).
Although there is no time limit on signature of the Convention, it is almost certain that the United States will not sign it in the near future. How, then, can the United States derive any benefit from the largely satisfactory navigation regime embodied in the convention?
Historically, the law has always given preferential treatment to straits passage. An example of this preferential treatment involves the right of innocent passage. A coastal state may, for reasons of its security, on a nondiscriminatory basis, suspend the right of innocent passage in its territorial sea. A coastal state may not, however, suspend innocent passage in the case of straits. And while a belligerent may be subject to either a long-range or short-range blockade (assuming compliance with other legal requirements), a blockade may not be conducted in a strait.
The archipelagic issue is not all that much different than straits passage. Archipelagoes are essentially a series of islands connected by straits. To the extent that straits within the claimed archipelago were less than twice the width of the territorial sea, normal principles of straits passage applied. And in other straits in the archipelago or the claimed internal waters, special rules were not required since these areas were considered high seas by most of the international community. Consequently, patterns of traffic developed through these archipelagoes that are not much different from what will be practiced under the treaty.
Although both transit passage and archipelagic sea-lanes passage seem like new concepts, they are not; both confirm status quo navigational freedoms. They are merely word symbols that define the status quo in a different manner. Thus, the Convention is not dealing with new concepts but rather new ways of describing those concepts. These new word symbols are simply a means of accommodating two conflicting political imperatives. On the one hand, a 12-mile territorial sea and the archipelagic concept are political imperatives for many of the world’s coastal states, especially those of the Third World. On the other hand, unimpeded straits passage and archipelagic sea-lanes passage are equally compelling political (and strategic) imperatives for the world’s naval powers.
The new word symbols allow each of these competing interests—change and consistency—to claim victory with respect to the navigation articles. The navigation articles do not impose unreasonable burdens on the naval powers, nor adversely affect legitimate interests of the coastal states. In the final analysis, the degree to which each of the conflicting interest groups has been successful will depend as much on how the treaty’s ambiguities are resolved as on its literal language.
As discussed earlier, conventions normally bind only the parties that sign them. Conventions can, however, be either law making or law declaratory. That is, the parties may set out new rules by which they will govern their relations, or an agreement may seek simply to codify what the signatories agree are the customary international rules regulating their conduct. In some cases, a convention is both law declaratory and law making: on the one hand, codifying applicable international law principles and, on the other hand, agreeing to principles that fill any voids in customary international law or even changing the rule applicable as between the parties.
The distinction between customary and conventional international law is blurred by the fact that
conventions are frequently considered binding on nonsignatories. When a treaty merely codifies existing rules of customary international law, it is irrelevant whether a particular state is a party to the convention since that country is already bound to the rules in question. International agreements may become so universally accepted that their provisions may be said to become customary international law that binds even nonsignatories. Therefore, it is apparent that a state does not need to be a party to the Law of the Sea Convention in order to enjoy most of the benefits or be burdened by most of the duties of the navigation articles. And what is not
already international practice, such as overflight of straits less than six miles wide, may later be so broadly accepted as to become customary international law.
The most important characteristic of the regime of navigation and overflight laid down in the treaty is its consistency with current practice. One can point to the 12-mile territorial sea as a departure from current practice. Or one could argue that the 12-mile territorial sea is merely a restatement of customary international law, and that it is only the “new” regime of transit passage that confers a right of submerged straits passage or overflight. Such arguments do not, however, go far enough in examining or understanding the real impact of the treaty on naval operations.
In the customary international lawmaking process of claim and counterclaim, the uncontested claims of others eventually acquire an air of legitimacy. Consequently, over the last several years, the United States has conducted military operations in a manner calculated to demonstrate the U. S. view of maritime claims and to ensure that our operational practices do not inadvertently acquiesce in otherwise illegal claims.10 The August 1981 incident in the Gulf of Sidra is a clear example of the use of naval operations that demonstrated our legal position, while carrying out a necessary training mission.'1 Conclusion of the Law of the Sea negotiations does not lessen the need for such operational vigilance.
On the other hand, the state of play regarding the law of the sea makes such challenges more important than ever. Although the treaty will probably go a long way toward bringing stability and predictability to the Law of the Sea, it is unrealistic to believe that all states will roll back their excessive maritime claims. Undoubtedly, many will attempt to exploit what are frequently described as the “creative ambiguities” of the treaty. Alternatively, many states may exploit some loophole or argue that their claim is a special exception not covered by the treaty.
Further, the clearest interpretation of the ambiguous language of the treaty will be the actual operational practices of those who base their navigational rights on its provisions. Such practices, soon after negotiations on the document were completed, are probably the best evidence of what the negotiation of the Convention intended its language to mean. It is important that all naval powers, including the United States, demonstrate clearly—through their operational practices over the next few years— their understanding that the language of the treaty has no significant impact on naval mobility. This will help interpret the treaty and shape the customary international law that will define the rights and duties of nonsignatories. Such operations must include the exercise of high-seas freedoms in the economic zone beyond the territorial sea and the unannounced transit through, over, and under straits and archipelagoes. Such transits need not be confrontational, although some most certainly will be so. Some will also undoubtedly involve near-term political costs. We must, however, be willing to pay such near-term costs in order to preserve our long-term naval mobility.
The Law of the Sea negotiations have been a long and difficult effort to balance the competing interest of its many participants. The two key features of the treaty that resulted are the navigation articles and the deep seabed mining regime. The United States has found the navigation articles and other less compelling issues to be largely satisfactory. The seabed mining regime, on the other hand, was fraught with many pitfalls and was unacceptable to the United States. Unfortunately, all of the issues have been woven together in a comprehensive “package deal” in which a state must be willing to accept all or nothing. This meant that the United States was forced to turn its back on the acceptable navigation regime in order to reject the highly unsatisfactory seabed mining articles. Still, although the United States has not become a party to the treaty, our naval mobility stands to benefit from its provisions.
Nevertheless, in order to take advantage of the many positive benefits that the treaty’s language portends for the future of naval mobility, the United States must continue to operate its forces in a manner that ensures the treaty's language is properly interpreted and demonstrates to the world community that the United States is firmly resolved to maintain its navigational freedoms. If the United States is willing to undertake such a commitment, the lengthy negotiations will have been well worth the effort.
1 See vol. 18 of “Weekly Compilation of Presidential Documents," p. 887 (1982).
2 For a more detailed and technical discussion of the navigation provisions of the Convention, see Cdr. Frank B. Swayze, “Negotiating a Law of the Sea,” Proceedings, July 1980, pp. 33-39.
3 Thomas A. Clingan. Jr., “The Next Twenty Years of Naval Mobility," Proceedings, May 1980, pp. 82-93.
4 J. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 5th ed. (Oxford: Oxford University Press, 1955). p. 1.
5 For a discussion of the three-mile territorial sea, see Bernard G. Heinzen, “The Three Mile Limit: Preserving the Freedom of the Seas,” Stanford Law Review, 1959, vol. 2, p. 630.
h Robert Osgood et al. Toward a National Ocean Policy: 1976 and Beyond (Government Printing Office: 1975), pp. 20-21.
7 U. S. Department of State, Office of the Geographer, letter of 9 April 1981.
8 Until 22 May 1982, the 1MO was called the Inter-Governmental Maritime Consultative Organization (1MCO).
9 Department of State, letter of 9 April 1981.
10 Elliot Richardson. “Power, Mobility and the Law of the Sea,” Foreign Affairs, Spring 1980, p. 902.
11 For an analysis of this incident, see D. R. Neutze, “The Gulf of Sidra Incident: A Legal Perspective," Proceedings, January 1982, pp. 26-31.
Commander Neutze was graduated from the U. S. Naval Academy in 1965. He has earned J.D.. M.A., and LL.M. degrees from the University of Maryland, George Washington University, and Boston University, respectively, and is a graduate of the Armed Forces Staff College. Currently, he is Legal Adviser to the Deputy Chief of Naval Operations (Plans, Policy, and Operations).