September 22, 2009

Reading Old Magazines: "Power, Mobility, and the Law of the Sea”

As Christine promised in yesterday’s post on the new Interagency Ocean Policy Task Force – which recommends that the United States ratify the U.N. Convention on the Law of the Sea (UNCLOS) – this week’s Reading Old Magazines feature is about some of the original security thinking behind its negotiation. The UNCLOS was concluded in 1982, but two years earlier, Elliot L. Richardson, the President’s Special Representative to the Law of the Sea Conference, published an article in Foreign Affairs called “Power, Mobility, and the Law of the Sea” (subscription required). In this piece, Richardson explained some of the history of UNCLOS negotiations, but he also laid out exactly what the United States was hoping to achieve in the end. It’s a fascinating read, because it offers a view of a complex, ongoing U.S. diplomatic initiative, presented by the man responsible for negotiating the U.S. position.

Richardson’s article quickly laid out the chief U.S. concern about the international maritime regime: traditional national security. Though Richardson spent a few pages discussing seabed mining operations, his chief concern—and by extension, the Carter administration’s chief concern—was guaranteeing the U.S. Navy’s right of passage through strategic ocean, sea, and strait waters. The U.S. view at the time was the same view endorsed by the Dutch jurist Hugo Grotius in 1609: that each nation should have access to the area of seabed and corresponding water column up to three miles out from its coasts. This convention guarantees wider range for U.S. shipping beyond its own coasts than an extension out to 12 miles, which many nations favored. Many critical straits are wider than six nautical miles but narrower than 24, so the three-mile rule benefits nations who want to navigate freely through these chokepoints. In his essay, Richardson explained that the U.S. position is “the view of international law we had long maintained—that so long as there was not universal acceptance of some clear definition of the territorial sea other than the historic three-mile limit, the United States was bound to assert its own view.”  Two previous conferences on the Law of the Sea had failed to create such clear definitions, which is part of the reason that the third attempt was such a long, drawn-out diplomatic initiative.

Many of Richardson’s ideas about national security revolve around the Soviet threat and the importance of maintaining naval superiority over the Soviet Union. To Richardson, it was crucial that the United States appear strong and steadfast: “If we hang back from acting upon our own understanding of the applicable principles of international law, we pay a price in terms both of constraints on the mobility of our forces and of the credibility of our will to use them.” But it becomes clear to the reader that Richardson was committed to finding a workable solution to these maritime issues, as when he wrote that the United States needed to build “a new consensus embracing the strategically significant coastal states” instead of obstinately insisting upon its preferred outcome.

Richardson will probably always be best known for choosing to resign as U.S. Attorney General rather than carry out Richard Nixon’s orders to fire Watergate prosecutor Archibald Cox. But his Foreign Affairs essay reveals a principled diplomat with a clear understanding of his nation’s negotiating position and national security requirements. The Senate never ratified the end result of the UNCLOS, as opponents objected to some seabed mining provisions and claimed that the treaty would reduce U.S. sovereignty. But recent Pentagon and administration support—from both the Bush and Obama administrations—could reverse that longstanding position. The presidentially-mandated Ocean Policy Task Force specifically recommended ratification last week (pdf), claiming that this would strengthen the nation’s ability “to participate in and influence international law and policy related to the ocean.” Given the importance of this subject for natural security, we will try to keep you all updated on our thoughts on how this plays out.