A Quick-Reference Guide on UNCLOS for Gen. Hyten: The Drift, Vol. XLIII

Navigation Brief

ALEXANDRIA – Good Evening, Drifters

Well looks like we are going to need to do some heavy lifting here at The Drift in terms of educating our landlubber overlords on things maritime.

Air Force Gen. John E. Hyten, who has been raising eyebrows for much more serious things than his knowledge of international maritime treaties, nonetheless caused a minor stir among the nautically minded for an answer during his confirmation hearing for Vice Chairman to Sen. Angus King (I-Maine), who asked him about whether he supported the U.S. acceding to the UN Convention on the Law of the Sea. UNCLOS, as the cool kids call it, governs the territorial and exclusive economic boundaries of what countries can claim as their own and provides a framework for settling disputes.

Here’s what Hyten said, which (spoiler alert) didn’t please Sen. King much.

The Quote: I'm not a legal expert on the Law of the Sea Treaty so I don't know the pros and cons, Senator, or the benefits of it.

I do know that the Law of the Sea is an appropriate standard that nations look at, and including the United States, when they consider freedom of navigation when they consider borders, when they consider all those kind of pieces. But I don't have enough legal knowledge to talk about the issue about that treaty. I've not looked at that, Senator.

King was miffed because the standard DoD position is that the US should accede to UNCLOS, and Hyten later acknowledged that he “screwed up” in his answer to King.

But I figured we’d help him out a bit here at The Drift and try and piece together a quick reference guide, or QRG, for the relevant issues he’ll concern himself with at Vice Chairman. So, Gen. Hyten, this is for you. And The Drift commits to producing a similar QRG whenever maritime knowledge gaps need to be addressed.

Let’s Drift!

DBL

UNCLOS for Dummies (And 4-Stars)

All right, General, pull up a chair – I’m going to try and make this quick. UNCLOS:

Background

The UN Convention on the Law of the Sea dates to 1982, and has been a matter of mild controversy in the United States ever since. The U.S. likes UNCLOS because it provides a legal framework that generally advances U.S. interests and gives countries a framework for peacefully resolving maritime rights disputes. And in a world where dialing 9-1-1 connects you to the U.S. military, it’s nice to have ways of resolving disputes that don’t involve major combat operations.

As far as the military is concerned, UNCLOS is gospel. The Navy treats it like law and even acts as an enforcer of the Convention by peacefully challenging what they see as excessive claims through what they call “Freedom of Navigation” operations. (More n that in a bit).

BUT! BUT! The U.S. is not legally bound by the treaty and here’s why. In 1996, after a failed attempt by the Clinton Administration to get the treaty ratified, the U.S. sent a note to the UN being like, “Hey, we love your Convention. It’s great. We have a couple concerns so we’re not going to adopt it but we’re going to abide by it as best we can.”

UNCLOS has its hang-ups and detractors and most of it boils down to sovereignty concerns. So, that raises an obvious question …

What Does UNCLOS Do?

The key provisions are as follows, per the UN’s website:

• Established freedom-of-navigation rights
• Set territorial sea boundaries 12 miles offshore
• Set exclusive economic zones up to 200 miles offshore
• Set rules for extending continental shelf rights up to 350 miles offshore
• Created the International Seabed Authority
• Created other conflict-resolution mechanisms (e.g., the UN Commission on the Limits of the Continental Shelf)

Of the provisions, perhaps the most important one you’ll need to concern yourself with, sir, is the fundamental principal of Freedom of Navigation. This has been the Navy’s peacetime raison d'être for some time. The UN’s summation describes it thusly:

The Quote: “The oceans had long been subject to the freedom of-the-seas doctrine - a principle put forth in the 17th century, essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline. The remainder of the seas was proclaimed to be free to all and belonging to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to extend national claims over offshore resources.”

Maintaining this norm is something the Navy sees as a core mission and one of the reasons, as the often say, that presence matters.

The Hang-ups

Those who oppose acceding to UNCLOS do so not because they disagree with the principles of freedom of navigation. Indeed, most of the treaty is surprisingly non-controversial. The hang-ups really start at the International Seabed Authority. Conservatives have long been suspicious of international legal bodies and the idea of ceding sovereignty to the international community and its whims.

In an issue brief from last June, the Heritage Foundation urged President Trump not to accede to the treaty, summarizing its opposition thusly:

The Quote: Finalized in 1982, the convention codifies long-standing rules of navigation, provides a dispute-settlement mechanism, and regularizes territorial boundaries at sea.

More controversially, the convention also establishes an International Seabed Authority, mandates royalties on deep-seabed resources, and transfers of revenues to landlocked and developing nations.

Advocates argue that joining the convention would enhance America’s ability to commercially utilize mineral, oil, and gas resources in the deep seabed and strengthen our ability to protect U.S. interests in the Arctic.

In reality, however, U.S. accession would provide no benefits not already available to the U.S., while creating unnecessary burdens and risks.

Chief among the concerns Heritage (and their view is relatively representative) is that the US would have to pay royalties to the ISA on minerals and other resources extracted from the extended continental shelf and those royalties would be transferred to other countries that might use them to do bad things with. Opponents are also generally uncomfortable with obligating the US to follow the rulings of an international court. 

But advocates tend to argue that acceding to the treaty (as our chief competitors China and Russia already have) would give us both a legal framework for settling disputes with Russia in the Arctic and moral standing to enforce others’ obligations under the treaty. This has been especially important as part of the discussion surrounding China’s aggressive and expansive claims to maritime rights in the South China Sea. Which gets us to our last point …

UNCLOS and You

Probably the most fascinating issues involving UNCLOS recently has been the ongoing South China Sea dispute.

It stems from a map that China dug up from 1947 that shows that they have maritime rights to a comic amount of the South China Sea, given the number of Nations that reside there – almost 90 percent of it. The claim was pretty obviously bullshit, but the Philippines hauled the Chinese into international court over it and won. China called the whole thing a U.S. plot and has generally ignored the outcome of the tribunal. 

Instead, China has been busy denying access to key features where fishing is good and claiming them as China’s. This includes Scarborough Shoal, which has been a particular vexing flash-point in the debate.

China has even gone so far as to build a bunch of fake islands on features in the South China Sea that they have been busy militarizing, despite a promise to President Obama that they would not.

But China is not alone in planting themselves around the South China Seas. According to the Center for Strategic and International Studies’ Asia Maritime Transparency Initiative (your must-follow site on this issue): “Five claimants occupy nearly 70 disputed reefs and islets spread across the South China Sea. They have built more than 90 outposts on these contested features, many of which have seen expansion in recent years.”

The US has been doing what it calls Freedom of Navigation Operations, or FONOPS, challenging China’s excessive claims in the region. Basically, it means the US drives a warship through Chinese-claimed waters within 12 nautical miles to say that it has the right to do so and will continue to exercise it at will. Technically the FONOP challenges any party's excessive claim.

Advocates of acceding to the treaty say that doing so would bolster the U.S. position in the South China Sea and get the U.S. out of the awkward role of enforcing a treaty it doesn’t hold as legally binding. Opponents think the world knows where we stand on the relevant issues and that there is no reason to assume some of the more onerous provisions since we’re already benefitting from the treaty without acceding to it.

But, why is UNCLOS important to you? It’s pretty important in the ongoing dispute with Iran over the Strait of Hormuz (read more about that here). Well if you get into a massive shooting war with China on your watch, it could very well be over this issue. So… probably important to know it in detail.

In Closing

There is much more to know about this issue but here are some resources to continue your UNCLOS journey of discovery. Now we’re going to go to a special UNCLOS edition of The Hotwash, where you will find some good resources to get proficient!

The Hotwash

Text of UNCLOS

United Nations Convention on the Law of the Sea

2005 CRS Report

The Law of the Sea Convention and U.S. Policy

Navy JAG Corps Overview of UNCLOS (UNCLOS and You)

The Convention on the Law of the Sea

Articles of Interest

Countering China’s Actions in the South China Sea

Whether the South China Sea Arbitral Award Matters Will Depend Almost Entirely On the U.S.

Russia scores scientific point in quest for extended Arctic continental shelf

Russia's Arctic Ambitions

South China Sea standoff: 'Both sides need to step back'

Experts: Iran's arrest of U.S. sailors broke international law

Experts say Russia’s actions in the Kerch Strait were illegal

The Sea of Azov won’t become the new South China Sea (and Russia knows it)