How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
In the late summer of 1979 the Norfolk (Va.) Ledger Star based a lead story on the leak of a classified communication from the naval command there (CINCLANT) to units of the Atlantic fleet, laying out procedures to be followed by the U.S. government in protecting traditional high-seas freedoms. Three days later The New York Times picked up the story, running it on the front page under the headline, "U.S. Will Challenge Coastal Sea Claims That Exceed Three Miles." The United States, said the Times, "ordered the Navy and Air Force to undertake a policy of deliberately sending ships and planes into or over the disputed waters of nations that claim a territorial limit of more than the three miles accepted by the United States and 22 other nations." A decision had been taken, the story said, to "show a more active interest . . . because simply protesting diplomatically about such limits would not be effective."1
On the day that the Times story appeared, the Third United Nations Conference on the Law of the Sea was in the fourth week of its Resumed Eighth Session at the U.N. headquarters in New York. Launched at Caracas in 1974 and representing 160 countries-eight more than the U.N. itself-the Conference had succeeded during the intervening years in making remarkable progress on the most ambitious agenda ever attempted by a multilateral law-making forum. Substantial consensus had been reached on issues ranging from navigation and overflight, the conservation and management of fisheries resources, the protection of the marine environment, and the exploitation of oil and gas in the continental shelf, to marine scientific research and a carefully balanced system of compulsory dispute settlement. The results were embodied in a text containing nearly 400 articles of which fewer than ten percent remained controversial. By far the most troublesome issues still unresolved concerned the regime for deep seabed mining, which necessitated designing a new kind of international institution responsible to the world community as a whole. Only a handful of other substantive issues still awaited resolution. Delegates were at last beginning to believe that an effort which had come so far might yet confound the skepticism that had always surrounded it.
Reaction to the CINCLANT leak ranged from surprise to indignation. Many delegates assumed that the timing of the leak had been deliberately calculated to put pressure on the Conference. The Coastal States Group-87 countries in all-hurriedly convened an executive session to deliberate upon a response. Beyond assuring everyone that the leak was not premeditated, the U.S. delegation noted that the procedures in question were intended merely to give consistent and non-provocative application to 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.
These assurances, however, did not succeed in heading off statements and counter-statements in the closing plenary session of the Conference. During the next few weeks two heads of government, several foreign ministers, and numerous other officials-in varying tones of voice-denounced, protested and deplored.
Back of these reactions lay a long history. The leak served as an abrupt reminder of why the Conference had been convened in the first place-rapidly expanding coastal-state claims over ocean space and the impact of these on traditional freedoms of maritime travel and the movement of military and peacekeeping forces. In effect, the old alliance among peacekeeping power, the global peacetime mobility of military forces, and a universal system of ocean law has been disintegrating.2 Its renewal, under terms appropriate to the present, remains an essential task of the Conference, and one in which not only the United States but all nations have a major stake.
Ironically, it was an American President, Harry Truman, who unwittingly started it all when in 1945 he proclaimed the jurisdiction of the United States over the seabed resources of the continental shelf. Though scarcely comparable to the attempt by Spain and Portugal in 1494 to divide all the world's oceans between themselves in accordance with precepts enunciated by Pope Alexander VI, the Truman Proclamation constituted the first major breach in modern times of the classic principles of ocean law laid down by Hugo Grotius in 1609. National sovereignty had since then been confined to a narrow band of territorial sea only three nautical miles, or one marine league, in width.
Three years later Chile and Peru, followed by Ecuador, outdid President Truman by claiming maritime zones extending 200 miles from their coasts and embracing the water column as well as the seabed. These claims were soon backed up by the seizure of U.S. tuna boats in those waters, a practice which had become chronic by 1969 when, as the new Under Secretary of State, I was obliged to oppose congressional requests for the assignment of U.S. naval escort vessels to the protection of our tuna fleet. It was by then clear that the combined impact of rapid technological advances in the exploitation of ocean resources and the increasingly assertive claims of coastal states to the benefits of such exploitation demanded some new accommodation between coastal-state jurisdiction and high-seas freedoms. Neither the First U.N. Conference on the Law of the Sea in 1958 nor a second conference held in 1960 was able to reach agreement on the seaward limit of coastal state claims, whether three miles or beyond.
It was beginning to be clear a decade later that the only way of reconciling the number and variety of claims that had by then emerged would be through the convening of a new international conference charged with drawing up a comprehensive charter for all uses of the oceans. When the first substantive session of the Law of the Sea Conference got underway in 1974, 76 countries had claimed territorial seas ranging from 12 miles to 200 miles, and since then the number has increased to 101. (Roughly three-quarters of these states now claim a 12-mile territorial sea.) In addition to new territorial limits, certain of these claims call for prior notification to or authorization by the coastal state for the passage of warships or nuclear-powered ships, thus significantly restricting the traditional right of innocent passage.
Further confusing the picture, a number of island countries-Fiji, Indonesia, the Philippines and others-have asserted the equivalent of sovereignty over the waters embraced by their islands. This has raised what has come to be called the archipelagic problem.
The world's independent coastal states now number 135. The United States is one of only 23 that still adhere to the traditional territorial-sea limit of three nautical miles. Like the trading nations in whose interests Grotius' legal doctrines were enunciated, we have traditionally seen our military and commercial interests as requiring maximum freedom of movement for our ships and planes. Any expansion of the territorial sea carries with it the potential impairment of such freedom because it is a firmly established principle of international law that other countries enjoy only a right of "innocent passage" in territorial waters. Passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal state, and such passage is not subject to the consent of the coastal state. As adapted in recent times, however, innocent passage does not embrace any right of overflight or of submarines to travel submerged.
More than 100 straits around the world are more than six but less than 24 miles wide. So long as the territorial sea on each side of a strait is confined to three miles, a high-seas route remains in which full freedom of navigation and overflight will continue to exist. But extension of the territorial sea on both sides to 12 miles would eliminate these high-seas corridors, and the bordering states would then be able to contend that the straits remain subject only to the right of innocent passage. On that argument, the legal right to overfly a strait could be gained only with coastal state consent, submarines would be obliged to travel on the surface, and surface vessels would be subject to varying assertions of coastal-state regulatory power. All the world's most important straits would be subject to these restrictions; for example: the Strait of Gibraltar separating the Atlantic Ocean from the Mediterranean Sea; the links between the Pacific and Indian Oceans, including the Straits of Malacca and Singapore as well as the gateways to the Indonesian archipelago; the Strait of Hormuz at the entrance to the Persian Gulf; and the Bab el Mandeb strait connecting the Indian Ocean to the Red Sea and Suez. The result could seriously impair the flexibility not only of our conventional forces but of our fleet ballistic missile submarines, which depend on complete mobility in the oceans and unimpeded passage through international straits. Only such freedom makes possible the secrecy on which their survivability is based.
In addition, by prior action or relying upon the consensus in favor of a 200-mile exclusive economic zone which emerged at the Law of the Sea Conference in 1975, a number of states now claim resource jurisdiction beyond the territorial sea out to 200 miles, either, as in the case of the United States, as a fisheries conservation and management zone or in the more expansive form of an exclusive economic zone. The content of these 200-mile zone claims varies widely, but they invariably include authority over fishing and marine scientific research. In addition, a few purport to restrict navigation and overflight, and these claims may be hard to distinguish from some of the more extensive territorial sea claims. Roughly 40 percent of the entire surface of the world's oceans, an area greater than all the earth's land mass, lies within 200 miles from shore. All the important seas-the Mediterranean, the Caribbean, the Black Sea, the Red Sea, the Persian Gulf and the Sea of Japan among them-are consumed by coastal zones less than 200 miles in width. If this vast area ever comes to be regarded by coastal states as subject to their sovereignty for purposes of regulating navigation and overflight and related activities, the result would be to curtail drastically what Professor Bernard H. Oxman has aptly called "the sovereign right of communication."
Hardly had the Norfolk leak highlighted the chaotic state of the law of the sea than an extraordinary sequence of events-the seizure of American hostages in Iran and the Soviet invasion of Afghanistan, as well as the Vietnamese threat to Thailand-underscored the importance of the capacity to project force to any part of the globe where significant U.S. interests or responsibilities are challenged. Those of us who had never agreed that the Vietnam experience made this capacity unnecessary suddenly found ourselves in the overwhelming majority. President Carter announced the abandonment of the Nixon Doctrine, the Marine Corps got a new lease on life, and the Congress increased appropriations both for the Navy's shipbuilding program and the Air Force's airlift capability. Although belatedly, public attention focused on the vulnerability of the Middle Eastern oil fields and the fragility of the supply lines carrying oil from the Persian Gulf to Europe, Japan and North America.
Clearly the classical uses of sea power have assumed fresh importance. On their way to stations in the northwest Indian Ocean less than 200 miles from shore, U.S. Navy task forces transit the Straits of Malacca, Singapore, Lombok or Sunda. To back up friends, to warn potential enemies, to neutralize similar deployments by other naval powers, to exert influence in ambiguous situations, to demonstrate resolve through a deployment of palpable force-all these are tasks that naval power is uniquely able to perform. For these purposes the advantages of naval power over land or air power are clear. As Hedley Bull wrote in 1976 for the International Institute of Strategic Studies:
The first of these advantages is its flexibility: a naval force can be sent and withdrawn, and its size and activities varied, with a higher expectation that it will remain subject to control than is possible when ground forces are committed. The second is its visibility: by being seen on the high seas or in foreign ports a navy can convey threats, provide reassurance, or earn prestige in a way that troops or aircraft in their home bases cannot do. The third is universality or pervasiveness: the fact that the seas, by contrast with the land and the air, are an international medium allows naval vessels to reach distant countries independently of nearby bases and makes a state possessed of sea power the neighbor of every other country that is accessible by sea.3
Although the number of U.S. overseas bases and military personnel stationed abroad has been reduced in recent years, this reduction has not been accompanied by a corresponding contraction in the scope of our vital overseas interests. The reduction has served, rather, to increase the necessity for alternative means for protecting those interests. Our economic well-being, meanwhile, is continually more dependent on overseas trade and more vulnerable to distant political developments. The combined result is to compel increased reliance on the strength, mobility and versatility of our armed forces. To fulfill their deterrent and protective missions these forces must have the manifest capacity either to maintain a continuing presence in farflung areas of the globe or to bring such a presence to bear rapidly. An essential component of this capacity is true global mobility-mobility that is genuinely credible and impossible to contain.
While this is not the place to undertake a discussion of the force capabilities demanded by global mobility, some of its requirements are illuminated by a glance at the proposed Rapid Deployment Force. Designed to provide a capability for deploying task groups of varying size and structure to any region in the world, the Rapid Deployment Force will draw on a central "reservoir" composed primarily of units based in the continental United States from which forces can be dispatched to deal with a specific contingency. This reservoir will be composed of Army divisions, a Marine amphibious force, and appropriate Air Force and Navy units. The size and composition of the force selected will depend on such factors as the realities of geography and the nature of potential threats. Phased deployments initiated with small, "show-the-flag" forces could be supplemented by a second, larger force with greater capability.
The efficiency with which any such combination of units can be brought to bear depends to a significant degree on legal and political factors. The naval units must be able to sail and take up station without at any time being obliged either to defy some challenge to their right to do so or to make a vast detour in order to avoid such a challenge. The Air Force units have a similar need for direct and untrammeled routes to a crisis area. In the words of Professor Geoffrey Kemp, "Since one of the great attributes of air power is speed, any factor that works to delay flight time, such as rerouting or the need to ask permission to overfly, would naturally downgrade its value."4
The assurance that our forces can be rapidly deployed without having either to defy some other state or to seek its permission enables us to calibrate our responses precisely to the situation at hand. It maximizes the value of the Navy's unique ability to position itself at sea near foreign countries without entering the territory of friend or foe. It permits the movement of forces and supplies past the coasts of other countries irrespective of their view of the mission. This flexibility, combined with the logistical capacity of our air forces to deliver matériel rapidly, can enable our friends confidently to refrain from steps that would otherwise accelerate localized arms races.
The same events that have revived awareness of the need for global mobility have also, though less obviously, increased the importance of universally accepted rules of law governing the rights and obligations of maritime powers and coastal states. The existence of such rules is significant primarily for the deterrent or preventive function of our military forces as distinguished from their combat function. Once a crisis verges upon armed conflict no major nation is likely to let the movement of its forces be deflected solely by another country's disagreement with its view of the applicable principles of international law. Yet foreign perceptions of these principles can affect both our willingness and our ability to carry out deterrent or preventive missions. Because their purpose is not to create conflict but to forestall it, such missions require rules of law compatible with the routine deployment of ships and planes.
The erosion of the traditional rules and the trend toward expanding claims of coastal state jurisdiction have progressively increased the risk that deployments to distant regions of the globe will encounter some form of challenge by third states along the way. Whenever it arises, this prospect faces us with an uncomfortable choice. One alternative is to go full speed ahead, thereby generating hostility and exposing us to political and economic costs. More and more countries, moreover, in order to patrol their 200-mile zones and protect themselves against unfriendly neighbors, are acquiring a variety of patrol boats, maritime patrol aircraft, ship-to-shore cruise missiles, inshore submarines and small destroyers. Many of these countries also have mine-laying capabilities. A decision to disregard their claims of sovereignty must therefore take into account military as well as economic and political risks. And if we make it our consistent policy to damn the torpedoes, the costs will be cumulative. The result will be expensive not only to our bilateral relationships but to our reputation as a well-intentioned and law-abiding member of the world community. We should not be surprised when those whose claims we have ignored take advantage of a chance to get even.
A second alternative is to behave in a manner designed to avoid these costs, but this too can be expensive, although in other ways. 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. An additional cost is the further erosion of the very principles we proclaim, for the survival of any principle of customary international law depends upon the consistency of its observance in practice. Nor does the achievement of consistency come easily in the face of constant pressures to give priority to the preservation of cordial bilateral relations. Cables that have crossed my desk in recent months have appealed for the blurring or delay of activities of the kind referred to in the CINCLANT communication on such grounds as the "adverse effect on other matters on which we are seeking their support," "jeopardy to important American economic interests," "repercussions on sensitive bilateral developments," and the like. One ambassador went so far as to recommend the outright cancellation of routine overflights of the 200-mile zone.
It is conceivable, of course, that to escape this dilemma we might attempt to negotiate bilateral or regional agreements giving us the right to send warships and military aircraft through other states' claimed waters and airspace. Apart from the fact that any such bargain is likely to survive only as long as relations between the parties are good, what can we give on our side of the bargain? Merely to offer the reciprocal right to operate off our own coasts would seldom be sufficient, since few countries have an interest in acquiring any such right. The more likely price would be some form of political, military or economic concession-even, perhaps, acquiescence in a user charge proportioned to tonnage or the risk of pollution. And this, of course, would be a threat of concern not only to warships. Still another possible consequence would be to stimulate the major maritime powers to compete with each other for influence over strategically located coastal states in order to obtain preferential treatment for the highest bidder's military and commercial traffic.
There is only one way to prevent the costs both of conflict and of inaction. It is to create a common understanding and a common acceptance of rules compatible with the routine global deployment of air and naval forces. This cannot be done, quite obviously, merely by invoking what we may genuinely believe to be superior legal arguments in support of our view of the controlling principles of international law. It requires building a new consensus embracing the strategically significant coastal states. Until this has been done, foreign perceptions will continue to dictate the scope of the operational risks and costs encountered by the military forces of the United States in the performance of their deterrent role.
As between the superpowers, consensus on the importance of the law of the sea to global mobility has not thus far been a problem. Although somewhat backhandedly, Admiral S. G. Gorshkov, the chief architect of the Soviet Union's growing naval might, has publicly saluted the peacekeeping contribution of our and our allies' navies:
Owing to the high mobility and endurance of its combatants, the navy possesses the capability to vividly demonstrate the economic and military might of a country beyond its borders during peacetime. This quality is normally used by the political leadership of the imperialist states to show their readiness for decisive actions, to deter or suppress the intentions of potential enemies, as well as to support "friendly states." . . . Consequently, the role of a navy is not limited to the execution of important missions in armed combat. While representing a formidable force in war, it has always been an instrument of policy of the imperialist states and an important support for diplomacy in peacetime owing to its inherent qualities which permit it to a greater degree than other branches of the armed forces to exert pressure on potential enemies without the direct employment of weaponry.5
As this is written Admiral Gorshkov's words are being reinforced by the sincerest form of flattery: the construction of a Soviet global fleet. Currently numbering about 372 surface warships, the Soviet Navy is rapidly gaining in strength and versatility. Its first 37,000-ton ASW aircraft carrier joined the fleet only four years ago. The second was commissioned in 1978, a third will become operational in 1981, and a fourth is probably under construction. It has also been reported that the Soviets are building a 50,000-60,000-ton catapult-equipped nuclear-powered carrier. A new and powerful class of nuclear-powered cruisers-almost pocket battleships-is being added to other classes of cruisers in being and under construction, and a support system capable of sustaining fleet units at great distances is under development. Although not yet a match for the U.S. Navy on an overall basis, the Soviet Navy has acquired impressive sea-control capabilities.
Like the United States, the Soviet Union attaches importance to the successful outcome of the Law of the Sea Conference because it is aware that the superpowers have troubles enough in an increasingly pluralistic world without being forced into marginal conflicts over the peacetime movement of their military forces. Ever since the traditional rules came under attack, both countries have had a common interest in finding a way of reconciling the freedoms of navigation and overflight important to themselves and other major maritime countries with the national control of coastal resources and international control of seabed resources important primarily, though not exclusively, to developing countries. Both countries played active and supportive roles in the series of steps beginning in 1967 and culminating in 1973 which led the United Nations to conclude that any such reconciliation could only be accomplished through a comprehensive treaty. The Third U.N. Conference on the Law of the Sea got under way the same year. Although the Conference has since then dealt with issues ranging all the way from piracy to vessel-source pollution, its participants have understood from the outset that the accommodation of navigational and resource interests must be at the core of any eventual "package deal."
A common interest in conflict avoidance, of course, does not by itself compel an identity of legal positions on law of the sea issues. Indeed, the differences between the superpowers' geographical situations could have been the basis for different perceptions of their national interests. It is a fact, in any case, that the Soviet fleets cannot be deployed on a global scale without having to pass through constricted waterways and the 200-mile zones of other countries, almost none of which are pro-Soviet. The Soviet Northern fleet-icebound half the year-can reach the Atlantic only by way of the claimed zones of Scandinavian countries. To reach the Pacific from its home ports on the Sea of Japan the Soviet Pacific fleet must mainly depend on the Straits of La Pérouse and Korea. The Black Sea fleet can reach the Mediterranean only through the Bosporus and gain open ocean only through Gibraltar or Suez and the Bab el Mandeb. The Baltic, the Black Sea, the Mediterranean and the Red Sea, moreover, are entirely subdivided among actual or potential 200-mile zones.
U.S. fleets, by contrast, have direct access to the open oceans on both coasts and can reach the territories of allies such as Japan, Britain, France and West Germany without having to cross any 200-mile zones except those of allies. These sharp differences between the situations of the two superpowers have led some analysts to conclude that the differences in the superpowers' legal positions should have been equally sharp. This school of thought sees the guarantees of transit passage of straits and freedom of navigation and overflight in 200-mile zones as bringing significant advantages to the U.S.S.R. without any commensurate benefit to us or our allies. Its disciples argue that the expansion of coastal-state jurisdiction at the expense of high-seas freedoms would leave the Soviet fleets hemmed in by alien waters without any corresponding detriment to our side. In their view, the expansion of Soviet naval ambitions strengthens the case for letting the U.S.S.R. suffer the constraints on its mobility that a more coastally oriented world system would entail.
Despite their evident force, these arguments have never been persuasive to U.S. policymakers. On the contrary, we and our allies have always insisted that any enlargement of the territorial sea must be contingent on the equivalent of high-seas passage through straits and that any recognition of coastal-state rights over the resources of adjacent waters must preserve high-seas freedoms of navigation and overflight in and over such waters. Successive secretaries of state and joint chiefs of staff have been unanimous in advocating these fundamental propositions. Why? Have we misconceived our true interests?
The answers derive from four factors which, in the aggregate, are no less compelling for us than the Soviet Union's geographical entrapment is compelling for it.
First, we have our own reasons for needing unchallenged rights of navigation and overflight-not as acute as the Russians' perhaps, but substantial nevertheless. We need access to the Mediterranean and mobility within it. We need access to the Persian Gulf, the Red Sea and the Indian Ocean. We need to be able freely to traverse archipelagic waters like the Philippine Sea, the Java Sea, and the vast areas of the Pacific within 200 miles of some island. As the hasty shuttling of fleet units in response to the Iranian and Afghan crises recently demonstrated, our Navy is not now-and will not soon be-capable of maintaining a strong simultaneous presence in both the Southwest Pacific and the Indian Ocean. It must therefore be able to move fleet units from one area to the other by the most expeditious possible routes, and that requires the use of such major straits as Malacca, Singapore, Lombok and Sunda.
Second, the absence of any universally accepted legal foundation for the freedoms of navigation and overflight through straits and 200-mile zones could lead to unpleasant and otherwise unnecessary strains on our relations with our allies. Even the friendliest state is subject to its own set of indigenous political constraints and pressures, and, particularly at the stage when a crisis is developing, it is inevitable that these constraints and pressures will from time to time lead to perceptions of national interest divergent from ours. Indeed, we saw just such an outcome during the Middle East crisis of 1973 in which some of our allies, invoking attributes of sovereignty long sanctified by customary international law, denied us the use of their bases and airspace. If, in addition to the rights they already derive from the established legal attributes of territorial jurisdiction, our friends were also to acquire the power to grant or withhold permission to transit straits and 200-mile zones, their exercise of this discretion would immediately become fair game for their political opponents at home and vulnerable to pressure from abroad-for instance, by oil producers.
Third, it must be assumed that the U.S.S.R. is prepared to go to great lengths to ensure the mobility of its air and naval forces. The less secure the right of Soviet planes and ships to transit strategically important chokepoints in conformity with legal principles established by global agreement, the greater will be the Soviets' incentive to acquire equivalent results by other means. In the contest for control of strategic waterways thus made inevitable, the least the United States would seek to accomplish would be to neutralize whatever combination of carrots and sticks was employed by the Soviet Union, lest we find ourselves acquiescing in Soviet control. And the latter, indeed, must be recognized as a substantial possibility in any situation in which the U.S.S.R.'s interest in the transit of a vital chokepoint is in fact more intense than our own. For if the U.S.S.R. has no assurance that such an interest will be respected under binding legal arrangements, it will feel compelled to bring to bear whatever resources may be necessary to win control over the chokepoint. If we have a lesser interest, our willingness to match and resist the Soviets may be correspondingly less. For us to choose in such a situation to force the Soviets to seek direct control rather than to rely on legal arrangements could only mean that we would prefer to indulge the satisfactions of rivalry than to cut our costs. We would do better to heed the example of Winston Churchill at Potsdam in 1945 when he parried Stalin's demand for bases to protect the Soviet right of passage through the Bosporus by offering instead legal guarantees of that right.6
Fourth, any extent to which Soviet military forces are more dependent than those of the United States on the free transit of straits and economic zones is offset by our greater need to bring the requirements of mobility into accord with principles of international law which we alone cannot create. As the Soviet invasion of Afghanistan once again demonstrated, the handful of bosses who make decisions for the U.S.S.R. can disregard public opinion both at home and abroad. The government of the United States, on the other hand, is powerfully constrained by public opinion. Any serious question about the legality of our actions can undermine both our capacity to act and the ability of our allies to support us. We cannot change this responsiveness to law and public opinion and would not even if we could.
A Law of the Sea treaty creating a widely accepted system of international law for the oceans would-if the rules it contains adequately meet U.S. needs-be the most effective means of creating a legal environment in which our own perception of our rights is essentially unchallenged. We would then, for the first time since the Grotian system began to disintegrate, be assured rights of navigation and overflight free of foreign control, free of substantial military risk, and free of economic or political cost.
The negotiating text now before the Third United Nations Conference on the Law of the Sea,7 if incorporated in a widely ratified Law of the Sea treaty, would provide this assurance.
First, by establishing a 12-mile maximum limit for the territorial sea, the text would deny validity to assertions of sovereignty by coastal states beyond 12 miles. The result would be to roll back existing claims of territorial jurisdiction wider than 12 miles.
Second, the text provides for free and unimpeded passage through straits used for international navigation in accordance with the concept of "transit passage." Transit passage is the freedom of navigation and overflight for the purpose of continuous and expeditious passage of the strait. The right of free passage applies to all ships whether on the surface or submerged and includes the movement of ships and aircraft in military formations as required by the circumstances. The text emphasizes the rights of transiting states, placing on them only reasonable obligations that do not impair, inter alia, the execution of military missions. Although the coastal state is not permitted to control transit, the legitimate interests of the coastal state are protected. For example, it may enforce internationally approved maritime safety and pollution measures, except against vessels entitled to sovereign immunity, when the violation causes or threatens major damage to the marine environment of the strait.8
Third, the text would guarantee freedom of navigation and overflight through archipelagos on terms equivalent to transit passage through straits, with the difference that the sea-lanes, instead of being determined by the configuration of the land, would be defined by courses and distances, with a right of deviation up to 25 miles on each side of this axis. Subject to the free transit of these sea-lanes by other states, an "archipelagic state" would have rights over the waters embraced by baselines joining the outermost points of its outermost islands equivalent to the rights of a coastal state over its territorial waters.
Fourth, in giving coastal states sovereign rights over the living and nonliving resources of a 200-mile "exclusive economic zone," the text preserves for other states "the freedom of navigation and overflight" and "other internationally lawful uses of the sea related to these freedoms such as those associated with the operation of ships, aircraft and submarine cables and pipelines. . . . "9 In the group which negotiated this language it was understood that the freedoms in question, both within and beyond 200 miles, must be qualitatively and quantitatively the same as the traditional high-seas freedoms recognized by international law: they must be qualitatively the same in the sense that the nature and extent of the right is the same as the traditional high-seas freedoms; they must be quantitatively the same in the sense that the included uses of the sea must embrace a range no less complete-and allow for future uses no less inclusive-than traditional high-seas freedoms. In order to carry out the qualitative aspect of this understanding, the text10 identifies the safeguarded freedoms as those "referred to in Article 87," which is the article on "Freedom of the High Seas." The quantitative aspect is satisfied by the phrase "such as," which makes clear that the reference to specific uses is illustrative but not exhaustive. Article 87 similarly defines "freedom of the high seas" by setting forth a non-exhaustive list of freedoms.
Fifth, under the text the United States would have the right to bring suit against a state that interferes with navigation or overflight. The existence of this opportunity would help relieve us of having to choose between acquiescence and defiance each time a claim is made that could erode high-seas freedoms. It would give us an important new option in our efforts to control and discourage such claims. While disputes concerning military activities as such would be subject to an optional exclusion, the possibility of suit on claims in general would strengthen the advocates of reason and restraint within foreign governments.
Significant though the benefits of a Law of the Sea treaty would be, their value to the United States is not unlimited. Although substantial improvements have been made in the deep seabed mining provisions of the negotiating text, which I characterized as "fundamentally unacceptable" when they emerged in July 1977,11 this part of the current text still has serious deficiencies. But the essential structure of the regime for mining manganese nodules on the seabed beyond the 200-mile economic zone on the continental margin is no longer in issue. It is built around a basic compromise between the position of the developing countries, which wanted all exploitation of seabed resources beyond these limits and constituting "the common heritage of mankind" reserved for the international equivalent of a government monopoly, and the position of industrialized countries, which advocated a licensing system for all qualified seabed miners, whether private corporations or state entities.
Under this compromise, generally known as the "parallel system," both companies and an international seabed mining entity known as "the Enterprise" would have the opportunity to engage in deep seabed mining under the aegis of an International Seabed Authority. Many of the thorny problems that have had to be addressed in order to make both halves of the system workable-the powers of the International Seabed Authority, start-up financial assistance to the Enterprise, the mandatory licensing of technology for the benefit of the Enterprise, the types and amounts of payments by contractors to the Authority, the provisions for the adjudication of disputes, and countless subsidiary matters-are at or near the point of consensus.
The seabed mining issues not yet resolved, however, confront the Law of the Sea Conference with formidable difficulties. Among those that will have to be addressed in the two five-week meetings scheduled for 1980 are protection of major economic interests from an unsympathetic majority vote in the Authority's principal managerial body (the Council), certain features of the production ceiling on seabed minerals which protects land-based producers of the same minerals, and several subsidiary aspects of the obligation to sell technology. If these difficulties cannot be resolved in a manner satisfactory to the United States and other countries whose companies are preparing to engage in seabed mining, none of the other benefits of the treaty can make it acceptable to us. We would thus be forced to sacrifice not only the guarantees of freedom of navigation and overflight discussed in this article but other gains as well, including effective protection of the marine environment, a stable regime for marine scientific research, and a workable definition of the outer limits of coastal-state jurisdiction over the oil and gas resources of the continental margin. It would be an outcome preferable, nevertheless, to being bound by a system incapable of attracting the private investment without which the wealth of the deep seabeds will continue to lie in total darkness miles beneath the surface of the ocean.
But even if the remaining deep seabed mining issues are satisfactorily resolved within the framework of the basic compromises already made, there will still be those who insist that these very compromises concede too much to Third World demands. They may contend that we should prefer an outcome under which a treaty satisfactory in all respects other than seabed mining is completed but never comes into force. This, arguably, would leave us free to conduct deep seabed mining either under our own legislation or under a "mini-treaty" negotiated among interested states outside the U.N. Conference framework, and restricted to seabed mining, while at the same time letting us benefit from the assimilation of the draft Law of the Sea treaty's navigational provisions into customary international law. Such a strategy would give us-would it not?-the benefit of both worlds.
The idea has attractive features, and it is not surprising that spokesmen for some of the seabed mining companies have attempted to win converts to it. In the real world, however, this is simply not the way in which things are likely to work out. The changes in customary international law that have gained the most momentum from consensus in the Law of the Sea Conference are those that enlarge coastal-state claims. While these expansive principles may not need the treaty's entry into force in order to be ultimately absorbed into customary international law, the same cannot so confidently be said of the limitations and qualifications on coastal states' rights that the treaty would attach to them. The provisions for transit passage through straits qualify the extension of the territorial sea; the provisions for sea-lanes through archipelagos limit the concept of archipelagic waters; the provisions preserving high-seas freedoms in the exclusive economic zone restrain coastal-state claims of control; the provisions for geographic limits bar claims beyond those limits. These provisions can spell the difference between enjoying and losing high-seas freedoms of navigation, overflight and related uses in 40 percent of the world's oceans. It is hard to see, moreover, how countries with territorial sea claims exceeding 12 miles can, in fact, roll them back except as a consequence of a global treaty that actually comes into force.
Such are the probabilities without reference to the retaliatory measures that would surely be provoked by what would be seen as a barefaced attempt to have it both ways. Even if we discount the more extreme consequences that some representatives of other nations have warned us about-coastal-state claims dividing up the seabed itself, for example-we cannot so easily dismiss the likelihood that the navigational provisions we care most about would be cut back, dropped out, or ignored. It would be a mistake, finally, to assume that seabed mining under unilateral legislation-or even a "mini-treaty"-would be free of problems. Neither national legislation nor a "mini-treaty" could ever purport to grant a seabed miner exclusive rights of access to his mine site against the rest of the world.
We would, it is true, have to accept some of these same undesirable consequences if we cannot get compromises on the remaining seabed mining issues good enough to justify our signing and ratifying the treaty. But that would be because we had concluded that the net balance among all U.S. interests affected by the treaty was adverse. The same result, quite obviously, will not follow if the resolution of seabed mining issues is on its own merits better than no treaty: we would then gain, rather than risk losing, benefits in other areas, including navigation.
Any treaty that can win widespread acceptance is bound to have costs as well as benefits. Its measure is not whether it is as good as the constitution for ocean space we would write if we alone were responsible for its terms. Its measure is whether it serves all our interests as well as or better than those interests would be served in a treatyless world.
Among the interests that will have to be weighed in the end is our interest in the avoidance and prevention of conflict. We-as part of the world community-are strengthened by the strengthening of the rule of law. The crises in Iran and Afghanistan have given us sharp reminders of the relevance to our interests of widely accepted legal standards. In responding to those crises we have worked hard to build supportive coalitions based not on a similarity of political outlook or mutuality of economic or military concerns, but on a common awareness of the importance to all members of the world community of respect for the rule of law.
A successful outcome of the Law of the Sea Conference and the widespread adoption of the resulting treaty would extend the rule of law-including an agreed regime for third-party settlement of disputes-over two-thirds of the earth's surface. In so doing, it would give powerful encouragement to the determined pursuit of other rational accommodations among the ever more complex issues forced upon the world by the imperious realities of its inescapable interdependence.
1 The New York Times, August 10, 1979, p. A1.
3 "Sea Power and Political Influence," in "Power at Sea I: The New Environment," Adelphi Paper No. 122, Spring 1976, p. 6.
4 "U.S. Naval Power and the Changing Maritime Environment," a paper presented at the 4th Annual Seminar of the Center for Oceans Law and Policy of the University of Virginia, January 1980, p. 4.
5 Proceedings of the U.S. Naval Institute, October 1974, No. 9/859, p. 59 (translation of an article by Admiral Gorshkov in Morski Sbornik, November 2, 1972).
6 Winston Churchill, The Second World War, Vol. 6, Boston: Houghton Mifflin, 1953, p. 635.
7 Official Record (A/CONF 62/WP. 10/Rev. 1), United Nations Third Conference of the Law of the Sea, April 28, 1979. This is called for convenience ICNT, Rev. 1.
8 Although it has been suggested that the very existence of flag state obligations might support the inference that the states bordering straits had been given a right unilaterally to determine that violations have occurred or to seek to enforce the obligations, Professor John Norton Moore persuasively refutes this notion. Indeed, as Professor Moore makes clear, both the language of the text and its negotiating history compel the conclusion that the elaboration of the obligations of transiting ships and aircraft does not, except in the limited situation noted above, give enforcement powers to states bordering a strait. The coastal state, therefore, may not suspend or hamper any critical element-submerged passage, surface navigation or overflight-of transit passage. American Journal of International Law, January 1980, p. 77.
9 ICNT, Rev. 1, Article 58.
11 Statement of July 20, 1977, Press Release of the U.S. Mission to the United Nations, No. 57(77).