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NATIONAL SECURITY IMPLICATIONS IN THE

GLOBAL WAR ON TERRORISM OF THE UNITED
STATES’ ACCESSION TO THE UNITED NATIONS
CONVENTION 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-

117
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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, many
scholars, 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. Gaffney
Jr., 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 Armed
Services, 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 the
Law 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 sent
the 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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120 THE DARTMOUTH LAW JOURNAL Vol. VII:2

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 on
intelligence 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 surface
and 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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Summer 2009 UNCLOS 121

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 to
preventing 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 States
accession 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 United
States 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 have
envisioned 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.
35Remarks aboard the U.S.S Kitty Hawk, 1 PUB. PAPERS 225 (June 6, 1963).
36See 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 seabed
within 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 coastal
states 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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Summer 2009 UNCLOS 123

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 Convention
would 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=3
22157; 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 the
prevention 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 note
10; 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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Summer 2009 UNCLOS 125

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 this
obligation 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 that
intelligence 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; Oliver
North, 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 the
aforementioned 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 States
would 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 to
UNCLOS 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 to
international 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 Navy
concept 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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Summer 2009 UNCLOS 129

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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130 THE DARTMOUTH LAW JOURNAL Vol. VII:2

review by a judicial body.104 With such safeguards against the

impingement of the United States’ sovereignty, the arguments of
UNCLOS’ opponents are weak.105

V. CONCLUSION

The national security benefits of becoming a party to UNCLOS are

too compelling to overlook. Undoubtedly, success in the war on terrorism
rests largely on the United States’ ability to transit and operate freely in the
world’s oceans. This ability will be greatly enhanced by joining UNCLOS,
codifying transit rights in international straits, archipelagic waters, and
waters adjacent to coastal states. Additionally, becoming a party to
UNCLOS will help promote the recently enacted PSI. The United States,
as the leading PSI nation, must become a party to UNCLOS in order to
expand participation in PSI.106 Finally, UNCLOS does not negatively
impact the manner in which the United States conducts military operations,
including MIO missions, submarine operations, and intelligence gathering.
In fact, UNCLOS will codify the military’s ability to conduct transit in
“normal mode.”
As is the case with any multilateral treaty, there are some costs to
accession. However, these costs are negligible in comparison to the
national security benefits of becoming a party. Additionally, the United
States’ ability to declare what constitutes a military activity inoculates the
country against any threats the Convention may pose to the American
sovereignty on the ocean. Strong support for UNCLOS from the Pentagon,
Congress, and former President Bush demonstrates that the anticipated
benefits of becoming a party outweigh the minimal costs of accession by
the United States.
Finally, becoming a party will allow the United States to influence
development of the Law of the Sea. Perhaps more significantly, becoming
a party to UNCLOS provides an opportunity for the United States to
rebuild alliances and reposition itself as a global leader. Joining the 155
nations who are already party to UNCLOS would send a clear message to
the world that the United States intends to partner with nations in forging
the world’s future.

Convention on the Law of the Sea,” Report to Accompany Treaty Doc. 103–39, Senate, 108th
Congress, 2nd Session, Exec. Rpt. 108–10. at 17–22.
104 See UNCLOS supra note 1 article 298(1); Duff, supra note 100, at 13.
105 See UNCLOS supra note 1, article 298(1); Mullen, Law of the Sea Testimony, supra note
87; Duff, supra note 100, at 13.
106 See Walsh Testimony, supra note 16.