The Law of the Sea Convention: A National Security Success-Global Strategic Mobility through the Rule of Law
Kraska, James, The George Washington International Law Review
The United Nations Convention on the Law of the Sea (Convention) has been called a constitution for the world's oceans because it provides a legal and policy architecture for conduct on, over, and under more than seventy percent of the globe.1 So far, the treaty has served as an enduring framework for ensuring a stability of expectations. In many respects, the Convention codifies customary international law and the state practice comprised of the cumulative actions of governments in areas such as transit through international straits and establishment of the exclusive economic zone (EEZ).2 The Convention has gone far toward fulfilling Professor Myres S. McDougal's vision for a minimum world "public order of the oceans." Professor McDougal and his collaborator, William T. Burke, suggested that developing a stable regime for the oceans required a "comprehensive . . . process of authoritative decision."3 This process flowed from three distinct elements-interaction among the maritime states and ocean users, the rights of access of the international community to ocean space and the rights of coastal state to claim jurisdiction over ocean space, and determinations of decision makers responding to these competing claims. This process gave definition and certainty to the navigational regimes of the treaty. The unfolding process of authoritative decision for a public order of the oceans is displayed through maritime operational and diplomatic theater. In the contemporary era, this drama unfolds within the boundaries set by the Convention, and the United States and other countries have a great interest in ensuring the stability of those boundaries.
The Convention has been an enormously positive influence on the development of authoritative decision, shaping the process in a direction that protects the international community's right to freedom of the seas. Freedom of navigation is a community right, but the right is under constant pressure of encroachment by coastal state interests. Whether the Convention is able to continue to serve the critical function on the development of authoritative decision will depend on the outcome of the ongoing "struggle for law" in the oceans.
As a human endeavor, the Convention is imperfect and sometimes contains language obsequious to opposing interests. At the same time, the grand bargain struck in the treaty carefully achieved a balance of interests that has attracted more than 150 state parties.4 The Convention is a framework treaty, perhaps the most comprehensive multilateral agreement in existence after the United Nations (UN) Charter, and it is one of the most widely accepted global treaties.5 The treaty sets forth the architecture for developing policy and law for virtually every major oceans interest, including protection of the international community's essential interest in freedom of the seas, which is the foundation of oceans policy. Other important oceans interests include, but are not limited to, marine environmental protection, natural resource management, oil, natural gas and mineral extraction within and beyond areas of national jurisdiction, marine scientific research, and establishment of a menu of mechanisms for the peaceful resolution of disputes. In the United States, experts representing each of these national interests have strongly supported the Convention and, combined, make a powerful case.
II. THE LAW OF THE SEA CONVENTION AND NATIONAL SECURITY
This issue of the Journal focuses on the life and achievements of Professor Louis B. Sohn, distinguished member of the U.S. delegation to the Third United Nations Conference on the Law of the Sea. In evaluating whether the Convention has been a national security success, it is useful to turn toward another important leader and scholar in the early development of the Convention. Doing so requires us to think back three decades. In September 1975 John Norton Moore wrote that U.S. oceans interests are best served by reaching a comprehensive multilateral treaty on the law of the sea. …