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10/15/09 8:29 Pm

10/15/09 8:29 Pm

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IVEY 10/15/09
 
8:29 PM
117
NATIONAL SECURITY IMPLICATIONS IN THEGLOBAL WAR ON TERRORISM OF THE UNITEDSTATES’ ACCESSION TO THE UNITED NATIONSCONVENTION ON THE LAW OF THE SEA
L
IEUTENANT
M
ATTHEW
W. I
VEY
*
The United Nations Convention on the Law of the Sea has been a topic of heated debatesince 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 fromPresident George W. Bush, urging the Senate to give its advice and consent to thetreaty. Nevertheless, opponents of the treaty argue that the United States will sacrificesovereignty 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 itsnational security. This Article examines this debate in the context of the Global War onTerrorism and argues that becoming a party to the treaty is favorable to United Statessecurity interests.
I. I
NTRODUCTION
...........................................................................................117
 
II. B
ACKGROUND
...........................................................................................118
 
III. D
ISCUSSION
.............................................................................................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. A
NALYSIS
................................................................................................127
 
V. C
ONCLUSION
.............................................................................................130
 
I. I
NTRODUCTION
 On May 15, 2007, President Bush issued a statement urging the Senateto give its advice and consent to the ratification of the United NationsConvention 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 thispaper 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 theWorld's Oceans (May 15, 2007), http://www.whitehouse.gov/news/releases/2007/05/20070515-
 
IVEY 10/15/09
 
8:29 PM
118
THE DARTMOUTH LAW JOURNAL
Vol. VII:2
focused on the positive implications of ratification on the United States’role in the Global War on Terrorism: “Joining will serve the nationalsecurity interests of the United States, including the maritime mobility of our armed forces worldwide.”
2
Despite the President’s urging, manyscholars, politicians, and members of thepublic doubt that joining theConvention is a favorable strategic decision for the United States.
3
 
Specifically, these individuals assert that becoming a party to the treaty willundermine the United States’ ability to independently perform military andintelligence 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 thetreaty in various mission-areas of the Global War on Terrorism. Finally,Part III analyzes the implications of UNCLOS on United States’ nationalsecurity interests and argues that these interests are best served bybecoming a party to the Convention.II. B
ACKGROUND
 For over two decades, UNCLOS has been a subject of great debate innational security circles.
5
 
UNCLOS traces its roots to customaryinternational law, first embodied in a series of treaties on the law of the seadating 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 toestablish a comprehensive legal scheme governing movement on the sea
2.html [hereinafter White House Law of the Sea Press Release; United Nations Convention on theLaw 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., H
ERITAGE
F
OUNDATION
W
EB
M
EMO
, The UnitedNations Convention on the Law of the Sea: The Risks Outweigh the Benefit
s
3 (2007),
availableat 
http://www.heritage.org/Research/InternationalOrganizations/wm1459.cfm; Frank J. GaffneyJr.,
 John Kerry's Treaty: Outsourcing Sovereignty
,
 
N
ATIONAL
R
EVIEW
O
NLINE
, Feb. 6, 2004,http://www.nationalreview.com/gaffney/gaffney200402261356.asp; Military Implications of theUnited Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on ArmedServices, 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,
 
N
ATIONAL
P
OLICY
A
NALYSIS
, Law of the Sea Treaty CouldProve 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 theLaw of the Sea (The 1958 Convention on the Territorial Sea and the Contiguous Zone, the 1958Convention on the High Seas, the 1958 Convention on Fishing and Conservation of LivingResources and the 1958 Convention on the Continental Shelf).
See
LEITNER,
supra
note 6, at 7-25.
7
See
UNCLOS,
supra
note 1.
 
IVEY 10/15/09
 
8:29 PM
Summer 2009
UNCLOS 
119
and treatment of the resources therein.
8
The United States opted not tobecome 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, whichhad security consequences in light of the ongoing Cold War.
9
 
The end of the Cold War and extensive negotiations, thereafter, resulted in a 1994agreement that resolved these concerns. President Clinton signed therevised treaty and forwarded it to the Senate for advice and consent.
10
 
Thatyear, UNCLOS and the 1994 agreement both entered into force without theUnited States’ ratification. Ratification was delayed by several members of Congress who harbored doubts as to UNCLOS’ impact on Americansovereignty.
11
 Today 155 countries are party to the Convention and 131 countrieshave signed the 1994 Agreement regarding the implementation of Part XI.
12
 As a result of fresh encouragement from President Bush, Americanratification of the treaty has received great support from members of Congress.
13
In fact, in 2004, the Senate Foreign Relations Committee sentthe treaty to the Senate floor with a 19-0 vote.
14
In addition, the Pentagonhas largely encouraged the United States to become a party to UNCLOS.
15
 III. D
ISCUSSION
 Becoming a party to the Convention will impact the United States inseveral arenas.
16
 Perhaps the most contentious implications concern howthe 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 RelationsComm.
, 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
, W
ASHINGTON
T
IMES
, Mar. 7, 2005, atA15.
 
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, MilitaryPluses,
W
ASHINGTON
T
IMES
, Sep. 28, 2007, at A18; David Helvarg,
Congress Can Raise Our `C'On Seas,
L.A. T
IMES
, Mar. 12, 2007, at A15.
14
UNCLOS never received a full Senate vote and was sent back to the Senate ForeignRelations 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 RelationsComm.,
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 CongressThe 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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