Admiral Thad Allen has posted some very interesting material on his blog, iCommandant. Last week, in testimony before the Alaska House State of Affairs Committee, RADM Gene Brooks, USCG provided precisely the sort of specific, targeted analysis that helps clarify the debate surrounding UNCLOS ratification. By way of background, Admiral Brooks directs Coast Guard activities involving Alaska and the northern Pacific, has commanded two cutters, and holds a law degree from William & Mary. His testimony is concise and worth reading in its entirety.
On Sunday, I asked whether the advantages of UNCLOS were worth losing the flexibility we currently enjoy under customary international law. RADM Brooks directly addresses that question. While he packs a good deal into his seven pages of testimony, a few main points jumped out at me:
1. Because the Convention codifies both extensive freedom of navigation for all, and expansive economic protections for coastal states, the U.S. - as a major coastal state - enjoys an excellent combination of economic advantages and military flexibility under UNCLOS. This combination is potentially better, and certainly easier to maintain, then what would be available under customary international law.
2. By establishing a 12-mile territorial limit, and allowing law enforcement activities and transit outside that area, UNCLOS limits the extent of “safe havens” for drug traffickers and other criminals. Moreover, this law-enforcement advantage is strengthened off our own coasts by an additional 12-mile zone where we may enforce our laws concerning customs, immigration, and the environment.
3. Since we are not a party to the multilateral UNCLOS, we must assert our rights through bilateral treaties and customary international law. While we doubtless have major advantages over other states in forming CIL and in negotiating with other nations, RADM Brooks believes we are severely handicapped in these negotiations because we have rejected UNCLOS. As he puts it: “the fact that the United States is not a party to the Law of the Sea Convention, when the overwhelming number of our international partners are parties, has occasionally put us in a difficult negotiating position” both in UN bodies and bilaterally. In other words, even if the U.S. decides to opt out of the UNCLOS regime, that decision will have unintended consequences impacting other relationships and institutions to which we have already committed. This is an interesting point: he uses the International Maritime Organization as an example, but there may be others.
RADM Brooks provides examples that show a law-enforcement emphasis: pollution controls, fisheries conservation, drug interdiction. But these tie back into what I see as his strongest argument: UNCLOS allows for a far more efficient maritime security environment by allowing us to work with others instead of shouldering the transaction costs of creating, defending, and administering our own system. Given the multiple challenges facing the sea services, and a world of limited resources, this is not an argument to be lightly pushed aside.
It may be better to settle for second-best rules and save the costs of enforcement (or direct those costs to specific questions such as, hypothetically, whether one may conduct surveillance activities in another state's exclusive economic zone). I don't share the Admiral's optimistic view of international bodies' decision making, with its block voting and biases, but this is a good start toward addressing the costs of locking ourselves into an imperfect system. And these arguments at least acknowledge that UNCLOS is not a panacea.
On Sunday, I asked whether the advantages of UNCLOS were worth losing the flexibility we currently enjoy under customary international law. RADM Brooks directly addresses that question. While he packs a good deal into his seven pages of testimony, a few main points jumped out at me:
1. Because the Convention codifies both extensive freedom of navigation for all, and expansive economic protections for coastal states, the U.S. - as a major coastal state - enjoys an excellent combination of economic advantages and military flexibility under UNCLOS. This combination is potentially better, and certainly easier to maintain, then what would be available under customary international law.
2. By establishing a 12-mile territorial limit, and allowing law enforcement activities and transit outside that area, UNCLOS limits the extent of “safe havens” for drug traffickers and other criminals. Moreover, this law-enforcement advantage is strengthened off our own coasts by an additional 12-mile zone where we may enforce our laws concerning customs, immigration, and the environment.
3. Since we are not a party to the multilateral UNCLOS, we must assert our rights through bilateral treaties and customary international law. While we doubtless have major advantages over other states in forming CIL and in negotiating with other nations, RADM Brooks believes we are severely handicapped in these negotiations because we have rejected UNCLOS. As he puts it: “the fact that the United States is not a party to the Law of the Sea Convention, when the overwhelming number of our international partners are parties, has occasionally put us in a difficult negotiating position” both in UN bodies and bilaterally. In other words, even if the U.S. decides to opt out of the UNCLOS regime, that decision will have unintended consequences impacting other relationships and institutions to which we have already committed. This is an interesting point: he uses the International Maritime Organization as an example, but there may be others.
RADM Brooks provides examples that show a law-enforcement emphasis: pollution controls, fisheries conservation, drug interdiction. But these tie back into what I see as his strongest argument: UNCLOS allows for a far more efficient maritime security environment by allowing us to work with others instead of shouldering the transaction costs of creating, defending, and administering our own system. Given the multiple challenges facing the sea services, and a world of limited resources, this is not an argument to be lightly pushed aside.
It may be better to settle for second-best rules and save the costs of enforcement (or direct those costs to specific questions such as, hypothetically, whether one may conduct surveillance activities in another state's exclusive economic zone). I don't share the Admiral's optimistic view of international bodies' decision making, with its block voting and biases, but this is a good start toward addressing the costs of locking ourselves into an imperfect system. And these arguments at least acknowledge that UNCLOS is not a panacea.
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