Lawfare, Not Warfare
The Legal and Political Framework for the U.S. to Finally Ratify the UN Convention on the Law of the Sea to Secure American Border and Maritime Interests
The Legal and Political Framework for the U.S. to Finally Ratify the UN Convention on the Law of the Sea to Secure American Border and Maritime Interests
As the Trump Administration enters a second term and the 119th Congress legislative calendar begins, campaign promises and voter exit poll results1 demand securing America’s borders and a “Peace through Strength” posture towards domestic, foreign, and military policy. In today’s political and geopolitical climate, there are few legislative actions that could deliver bipartisan collaboration and increased provisions for legal maneuverability, strategy, and executive function. However, one course of action does exist to address adversarial behavior globally, secure America’s interests, and provide ability to address adversarial behavior and infringements through effective lawfare: the ratification the United Nations Law of the Sea Convention.
Although the United States’ 1,954-mile Southern border with Mexico dominates mainstream media coverage, the United States’ 95,471-mile shoreline of maritime border2 and approaches, including the planet’s largest Exclusive Economic Zone, requires urgent attention, governance, resourcing, and prioritization. Eighty percent of world trade travels by sea3, fifty percent of the world’s biological production and fifteen percent of human’s protein intake comes from the sea4, deep-sea bed critical minerals and energy sources are valued in the trillions5, and illegal immigration at sea is staggering on a global scale.6
Over the last decade, Americans have seen China’s excessive maritime claims brought to life through island building, violent ship maneuvers, political rhetoric, and public threats. As Arctic Sea ice continues to melt in temperatures rising at four times the rate of the rest of the world, Russia has postured itself with a fleet of 55 Arctic capable ice-breaking ships7 which will ostensibly govern the world’s newest shipping line, reducing voyage lengths of world trade laden container ships by days and putting global commerce and supply chains in Russian hands. In contrast, the U.S. has less than two Arctic capable ice-breaking ships. Securing the seas is an essential bipartisan legislative action for the Trump Administration to enforce economic, diplomatic, and foreign policy imperatives for the American people from a position of strength. In the absence of ratification, the U.S. has weakly relied on mere customary law to hold our internal actions accountable, and has neglected a formidable legal framework to hold any other states accountable.8
As the United States’ adversaries challenge international rules-based order to shape cyber, space, and maritime commons for their own comparative advantage, the U.S. risks abdicating influence through international legal frameworks and an overreliance on warfare to counter adversarial aggression. With varied geopolitical flashpoints at sea, the U.S. must not leave warfare and jus ad bellum9 as a primary response. Instead, the U.S. must be resolute in upholding international rules-based order and ratify the UN Convention of the Law of the Sea to act with comprehensive, enduring, and powerful lawfare. This approach of statesmanship and stewardship of the maritime commons will save American lives, taxpayer dollars, and will deliver President Trump’s “Peace through Strength” approach in perpetuity.
The UN Convention on the Law of the Sea (UNCLOS) is a comprehensive legal framework governing all uses of the world’s oceans and seas, and their resources. The international treaty also allows for further development of specific areas of the law of the sea. It is the globally recognized framework for adjudicating all matters relating to maritime law, governing areas including, but not limited to, environmental control, marine scientific research, economic and commercial activities, and the settlement of disputes relating to ocean matters. The treaty was opened for signature on December 10, 1982, and was entered into force on November 16, 1994. 157 Nations have ratified it10 because it sets forth a comprehensive legal regime governing activities on, over, and under the world’s oceans. Ratifiers include all major industrialized countries, including China, Russia, and all European Union member states. To date, the United States has failed to ratify the treaty, despite urging from environmental, scientific, labor, and industry organizations.
Presently, the United States continues to use customary international law, the 1974 International Convention of Safety of Life at Sea (SOLAS)11, the International Maritime Organization, the Freedom of Navigation Operations12, and domestic legislation for the “Rules of the Road”13, as well as title 10 and title 14 authorities. However, this patchwork of legal authorities coupled with an eroding sense of “customary” in the maritime commons is not sustainable nor suitable for conduct of nations at sea.
Throughout Reagan’s presidency, the United States did not ratify UNCLOS because of fears among conservative Republicans that it would undermine U.S. sovereignty by transferring “ownership” of the high seas to the United Nations.14 This fear was sowed by corporations who opposed the idea of the seabed as the common heritage of mankind. This thinking is now outdated and, in the nearly 40 years since, over 100 countries have adopted UNCLOS, these fears have proved to be unfounded. Further, in its absence, the UN Seabed Authority has already begun to grant licenses for deep seabed mining, putting U.S. corporations at a great disadvantage unless American corporations are granted access to the licensing system of the Seabed Authority. The very same industry that once lobbied against ratification of UNCLOS forty years ago is now risking billions of dollars of lost revenue if they do not lobby for ratification with the 119th Congress.
In the 1990s, President Clinton submitted UNCLOS and the 1994 implementing agreement to the U.S. Senate for advice and consent.15 While the Senate Foreign Relations Committee did not schedule a single hearing, 143 nations, including all NATO states, China, and Russia, had already become party to the Convention. In effect, this was the beginning of the U.S. ceding governance of the maritime commons and relying on diplomatic and operational challenges to excessive maritime claims, leaving stronger, more desirable legal framework and additional methods of resolving conflict on the table.16
In the 2000s, President Bush said, “Joining [the convention] will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide.”17 Following his statement, the Senate Foreign Relations Committee held hearings on UNCLOS in summer 2007. During President Obama’s first term, he and the U.S. Senate pledged support for UNCLOS while the U.S. Coast Guard strongly, and officially, supported efforts to join international partners as a party nation to UNCLOS. There was also support from the Joint Chiefs of Staff, the Secretary of State, the Secretary of Homeland Security, and a wide spectrum of maritime industry, environmental, and ocean policy experts. By 2009, although the Senate Foreign Relations Committee recommended approval by the full Senate, no floor vote was taken. This was the closest the United States has come to ratifying UNCLOS. At the end of President Trump’s first term, revived efforts emerged on the anniversary of the signing of the treaty in 2019. Sen Hirono (D-HI) and Sen Murkowski (R-AK) introduced a bipartisan resolution urging the U.S.’ ratification of the law of the sea treaty, but this bipartisan effort was not successful and UNCLOS was never brought to a vote.
A groundbreaking new report from the United Nations Institute for Disarmament Research (UNIDIR)18 identifies twenty critical challenges poised to shape the maritime security agenda in the coming years, demonstrating why the ratification of UNCLOS is an urgent issue. The report’s identified critical challenges range from cybersecurity risks and the proliferation of low-cost uncrewed systems to the impacts of climate change and biodiversity loss. Moreover, the report underscores the increasingly complex nexus between environmental concerns and traditional security threats, requiring more dynamic strategies to safeguard global maritime zones. UNIDIR is raising the alarm over a fragmented and insufficient approach to global maritime security, calling for urgent action to address growing vulnerabilities at sea. This comprehensive study exposes a widening array of threats in maritime zones worldwide, ranging from missile and drone proliferation to illicit arms trafficking and the protection of critical maritime infrastructure. It argues for closer integration between maritime governance and international arms control frameworks to counter these emerging risks effectively. The report’s release is timely, coinciding with the adoption of the UN’s Pact for the Future, which emphasizes enhanced international cooperation to secure oceans. Notably, Action 22 of the Pact urges improved governance, environmental protection, and conflict prevention at sea—echoing the key themes in UNIDIR’s findings. The U.S. faces a looming crisis on the high seas unless we can take decisive, sweeping action by ratifying UNCLOS and immediately challenging bad actors via the established legal framework and international tribunal.
The Provisions of the UN Law of the Seas Convention preserve the right of the U.S. military, including all Coast Guard units, to use the world’s oceans and airspace to meet national security requirements. Among other key provisions, the convention:
In short, the convention provides the legal framework in which to engage in high-seas freedoms, such as law enforcement, drug interdiction and operational training, in international waters beyond the territorial sea of foreign states. The provisions on the obligation of submarines to navigate on the surface while engaged in innocent passage are fully consistent with existing obligations under the 1958 Territorial Sea Convention.
As our national security concerns continue to grow in the maritime domain, especially with China’s excessive maritime claims and the rapid expansion of Chinese maritime military forces, including the China Coast Guard and Peoples Liberation Army-Navy, UNCLOS provides an essential dispute settlement process. Most maritime issues that cannot be resolved bilaterally can be taken to a special panel for arbitration, while issues involving military activities may be exempted from the dispute-settlement process. Although it must be noted that the convention limits the uses of the world’s oceans for “peaceful purposes,” it does not restrict military training exercises, the inherent right of self-defense, nuclear deterrent patrols, or the rights of belligerents during military conflicts.
An additional, critical understanding is the burgeoning economic imperative for the United States to ratify UNCLOS. The provisions on the 200-nautical mile Exclusive Economic Zone (EEZ) guarantee nations’ sovereign rights and exclusive jurisdiction over all the living and mineral resources within their EEZs. The convention also permits nations to secure sovereign rights over the vast mineral resources of the continental shelf beyond two hundred nautical miles. This would provide the United States with legal rights to explore and develop oil, gas, and mineral resources on the extended continental shelf off Alaska and the Gulf Coast. The deep-seabed-mining provisions, as modified in the 1994 Implementing Agreement, allow mining companies to pursue free-market-oriented approaches to seabed mining. The agreement eliminated any obligation of mining companies to transfer their technology. Convention revisions from 1994 guarantee the United States a unique, significant role in decision-making as the United States would have the equivalent of a veto power on key decisions. The environmental provisions provide a framework for developing effective and efficient measures to combat maritime pollution and to promote the health of the world’s oceans consistent with US national priorities. The environmental provisions are fully consistent with U.S. maritime environmental protection programs, including Coast Guard efforts to keep substandard and polluting vessels out of U.S. ports and waters. In addition, as rich energy and mineral sources and their seabed extraction technology become commonplace, the U.S. must invest in responsible and legal dispute resolution framework19 on behalf of U.S. corporations and economic enterprise.
The necessity of ratifying UNCLOS is inextricably correlated to the accountability approach to global justice. Simon Zadeck’s definition of accountability is “a relationship between those who have the power to act and influence others, and those who are affected by their actions.”20 As stated by the top advocate for ratification in the U.S. Congress and Arctic Caucus Co-Chair, Sen. Lisa Murkowski (R-AK), “The longer we sit out, the longer the rest of world will continue to set the agenda of maritime domain, from seabed mining to critical subsea infrastructure. Ratifying the Law of the Sea Treaty will help us keep China’s illegal territorial advances at bay in the South China and is also critical to our national interest in the maritime domain, especially as other Arctic nations look to define their rights to seabed areas beyond their existing exclusive economic zones. It is time for America to not just join the world at the table, but to make sure we are helping to set the rules going forward.”21
Through its Navy and Coast Guard, the United States already allocates thousands of service personnel, hundreds of ships, and billions of dollars to uphold UNCLOS provisions across the globe. The U.S. models the behavior and customary practice of UNCLOS consistent with allied efforts to protect the security of ports used for international shipping, to combat maritime traffic in illicit drugs, weapons, and undocumented immigrants, to deal with the problem of illegal, unregulated, and unreported fishing, and to fight piracy. Thus, why has the U.S. not ratified such a strong international treaty to uphold international rules-based order on the seas, protect Americas interests, and take a leadership role in governance?
The ratification of UNCLOS by the U.S. relates to Sen’s idea of a realization focused comparative approach22, as it would set a firm global standard and reduce comparativist ability to evolve, shape shift, or bully one’s idea of maritime claims. In today’s global context, a comparative approach in the maritime commons is failing and creating geopolitical flashpoints that have the potential to create conflict. For this reason, the public order of the oceans is best established and better maintained by a stable, universally accepted convention that promotes the key interests of the United States, its allies, and its trading partners.
Recently, across Southeast Asia, nations that ratified UNCLOS have begun to file legal claims publicly calling out sovereignty and conduct abuses at sea leveraging UNCLOS’ established legal framework and tribunal process. The Philippines filed and won its case unanimously against China’s “excessive” maritime claims. These cases are current and, while several have yet to be decided, they each have major implications for setting future international norms and interpretations. In response, China is openly ignoring the international tribunal’s orders to attend legal proceedings. Without treaty ratification, the U.S. has been prevented from taking a leadership and advocacy role in shaping these critical legal frameworks, perceivably allowing this behavior without legal ground or recourse. Perhaps most important to ratification is that “U.S. accession would enhance the authoritative force of the Convention, likely inspire other states to join, and promote its provisions as the governing rules of international law relating to the oceans…and would be in a stronger position invoking the treaty’s provisions to which it is party, in a bi-lateral disagreement where the other country does not understand or accept them.”23 If the United States had a seat at the table, nations violating UNCLOS regulations may be held accountable.
As global reliance on maritime activity intensifies for trade, energy, and environmental sustainability, the stakes of addressing these security challenges grow higher. The 2024 UNIDIR report serves as both a wake-up call and a roadmap for global leaders. Without coordinated action, full adoption, and advocacy of international law through ratification action, the fragile balance between maritime security and sustainable development may falter, endangering not only the oceans but the global economy and geopolitical stability they underpin.
Once ratified, the U.S. should take the mantle of leadership, and initiate immediate action to:
These recommendations aim to create a more coordinated and effective approach to global maritime security, defense, development, and diplomacy in the face of evolving challenges and place the Trump administration, American economy, and 119th Congress in a renewed position of strength to ensure peace and prosperity.
Statements and views expressed in this paper are solely those of the author and do not imply endorsement by the U.S. Coast Guard, Harvard University, the Harvard Kennedy School, or the Belfer Center for Science and International Affairs.
Cole, Leah. “Lawfare, Not Warfare.” February 4, 2025