Consensus of experts advocate for U.S. ratification of UNCLOS
A broad, bipartisan consensus supports U.S. ratification of the Law of the Sea Convention, and has consistently argued on its behalf for the past 30 years. This coalition includes high-level officials from the past six administrations and backing by all Presidents since Clinton. It also includes a range of senior defense officials including every Chief of Naval Operations. The Convention has also been strongly supported by every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies, and representatives of the oil and gas, shipping, and telecommunications industries testified in favor of the Convention before the Senate Foreign Relations Committee.
The debate over U.S. UNCLOS ratification is a familiar one. It focuses on whether it is better for the United States to be inside a flawed, sometimes troublesome international system where Washington can exert power to minimize the damage the organization can do, or to remain outside such an organization, unfettered by the agreements others are making. Since the Reagan administration, the United States has generally followed the latter approach, one favored by politically conservative factions.
The emerging Arctic-related issues challenge this prevailing approach, however. Being outside UNCLOS has reduced U.S. ability to influence debates that are increasingly relevant to the country's primary interests. In response, a powerful coalition of industries, environmentalists and hawkish foreign policy groups and the Bush administration have aligned in support of the treaty -- though not yet in a coordinated manner. Traditionally conservative political groups are coming to view the price of nonparticipation as growing in relation to the sacrifices of signing on. As a result, entrenched interests aligned against the treaty are shrinking, and the question increasingly appears to be one of when UNCLOS will be ratified, not whether.
Opposition in the United States to ratification of UNCLOS has largely been based on arguments relating to U.S. sovereignty and the power of international organizations. Libertarian and conservative groups have said the treaty would reduce U.S. ability to move its Navy in waters heretofore understood to be open, international waters. Others have pointed to the International Seabed Authority, alleging it is too powerful since under UNCLOS it has made the power to explore deep-sea minerals no longer simply a matter of determining who was there first with a capability to exploit the resources.
Voices against ratifying UNCLOS generally have been politically conservative. With the Arctic issues rising to the surface, core conservative constituencies -- business and foreign policy hawks -- see significant threats emanating from nonparticipation and clear benefits to participation.
As the Arctic issues proliferate, however, conservatives and the foreign policy establishment are beginning to view sitting on the sidelines as increasingly disadvantageous -- as is the military. Gen. Peter Pace, chairman of the Joint Chiefs of Staff, has called U.S. ratification of the treaty "a top national security priority." With the military, conservative foreign policy establishment and business joining together in support of ratification, the remaining conservative voices cautioning against sacrificing sovereignty have become increasingly isolated.
JOHN NORTON MOORE: Now, this convention is one of the most important multilateral conventions in history. Today it is enforced for 154 countries plus the European Union. It is enforced for all permanent members of the Security Council with the exception of the United States. The U.S. was the most important and most influential nation in the world in the negotiations. And it ultimately achieved every single one of its negotiating objectives in this treaty. I wish we could say that in all of the others.
Ultimately, of course, the last ones were achieved in the renegotiation in 1994 on Part 11, seabed mining, that enabled us to achieve, and more, all of the conditions set by Ronald Reagan. Now, this was not simply an accident. The United States was extremely well organized for this negotiation. We had an 18-agency interagency task force. We had 100-member advisory board that included virtually every affected industry group and environmental group in the United States. And it is not surprising that today every single president after this has been adopted, of both parties, certainly all of our government agencies, particularly our military and our chiefs of staff and our Coast Guard, all industry groups, environmental groups and basically every affected interest group in the United States is a strong supporter of moving forward.
Now, what are some of the things that we achieved? The United States achieved an expansion of resource jurisdiction that is far greater than what we achieved in the acquisition of Alaska and the Louisiana Purchase combined, an area of resource jurisdiction larger than the entire continental United States. The United States achieved every single one of its national security objectives, including particularly transit passage through, over and under straits used for international navigation.
We achieved assured access to seabed minerals with four sites set aside for the United States with an aggregate resource value of over $1 trillion. The United States basically also received a stable rule of law and stable expectations for oil and gas and fisheries and other economic development in the oceans. And even precedentially, we achieved a breakthrough. The United States, on the counsel of the authority, was the only nation in the world given a permanent seat on the council and a veto on the council
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Moreover, the Convention had the backing of the kind of coalition that normally augurs success in Washington. There was certainly no doubt about the military’s support. A so-called “24-star” letter from the Joint Chiefs of Staff called on the Senate to approve the Convention. In addition, the Convention had the support of many high-level officials in the civilian agencies. Secretary of Homeland Security Michael Chertoff, Secretary of the Interior Dirk Kempthorne, and Secretary of Commerce Carlos Gutierrez all wrote strong letters urging the Senate to act. And, as a demonstration of high-level Administration commitment, both Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England testified in support of the Convention at a Senate hearing in September 2007. Moreover, several Reagan-era officials, including former Secretary of State George Shultz and former Ambassador Ken Adelman, argued publicly that President Reagan’s problems with the Convention had been fixed and that it was time for the United States to join. Finally, the Convention was also strongly supported by every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies, and representatives of the oil and gas, shipping, and telecommunications industries testified in favor of the Convention before the Senate Foreign Relations Committee.
Since at least 1994, a strong base of support for accession to the Law of the Sea Convention in the United States has existed in the federal government, industry and civil society. It is likely that no other treaty has ever been so widely supported and yet failed to be put to a vote in the Senate for such a long duration. The Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations all support the treaty. Additionally, both the National Commission on Oceans Policy and the Pew Oceans Commission in their recent reports strongly urged immediate action by the Senate and accession to the Convention.
Further reflecting broad bipartisan support, in a highly unusual statement in the history of U.S. treaty ratification practice, all living former Legal Advisers of the U.S. Department of State issued a joint letter on April l7, 2004 to Senators William H. Frist (then Majority Leader), Richard G. Lugar (then Chairman, Committee on Foreign Relations), and John W. Warner and Carl Levin (respectively, then Chairman and Ranking Member, Committee on Armed Services. In that letter, the eight former Legal Advisers wrote:
We are unanimous in our view that it is in the best interests of the United States that the Senate, at its earliest opportunity, grant its advice and consent to United States accession to the 1982 United Nations Convention on the Law of the Sea and to United States ratification of the 1994 Implementing Agreement that modifies Part XI of the LOS Convention.
Finally, the critics brush aside the consensus among affected ocean interests and knowledgeable oceans experts in the United States in favor of their own judgment as persons who clearly lack expertise in international law or operational U.S. maritime policy. Indeed, few conventions have been so unanimously supported by knowledgeable experts and affected interests. Supporters include every president, both Democrat and Republican, who has considered the convention subsequent to the successful 1994 renegotiation of Part XI on deep seabed mining, Joint Chiefs chairman, combatant commanders and secretaries of state from the Nixon administration to today; not to mention every affected U.S. oceans interest including the oil and gas industry, fisheries, shipping and oceanic cables industries; to marine scientists and environmentalists. Most recently, the congressional U.S. Oceans Commission and the new Bush administration Oceans Interagency Task Force both unanimously recommended Senate advice and consent on the convention. As deliberations continue, senators might want to ask who they trust more for national security advice: every chairman of the Joint Chiefs, the combatant commanders of our united geographic commands and the consistent view of the Navy since the Nixon administration, or those few who admittedly are not naval, oceans or international law experts. Further, how can the totality of U.S. agencies, military departments and private sector oceans industries representatives constitute a "special interest" as charged by the critics? By what criteria are the most vocal critics not special interests?
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On October 7, 1994, President Clinton submitted UNCLOS and the IA to the Senate for advice and consent to accession and ratification, re- spectively. Despite widespread bi-partisan support, the concurrence of all the Federal agencies and departments with ocean interests, and support from the U.S. maritime industries (oil and gas, shipping, telecommunications, marine science, fishing) and environmental groups, the Convention and its Implementing Agreement have languished in the Senate for the past 20 years.
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The majority view of the SFRC and the opinion of every major ocean constituency group is that joining the convention is in America’s foreign policy interests. Debating the merits of internationalism versus unilateralism is a great U.S. tradition, but the irony is that the convention actually allows for an expansion of U.S. sovereignty: freedom of movement for a powerful navy; a legal tool for U.S. forces to combat scourges at sea, such as piracy, drug trafficking, and human smuggling; and a process for extending U.S. jurisdiction over a vast amount of ocean space equal to half the size of the Louisiana Purchase.
The United Nations has taken a lead role in managing the world's oceans. In 1994, it produced the UN Convention on the Law of the Sea (UNCLOS), which defines maritime zones and serves as a "constitution for the sea." To date, 163 countries have joined in the Convention, with the United States being the only major maritime country that has not ratified the convention. According to the Foreign Policy Association's National Opinion Ballot Report, a large majority of respondents (79%) believe that the U.S. should end its holdout and officially ratify UNCLOS. Such a response may reflect a larger trend on the ballot, as 57% of balloters believe that issues such as fisheries management are best handled by the UN instead of local or regional governments.
The respondents' preference for an international approach extends outside the UN framework. As the global community debates how to handle the Arctic, which is now beginning to yield more mineral resources as the polar ice caps continue to melt, NOBR participants indicate that they would favor an international treaty to govern the use of Arctic resources. Ninety-five percent of respondents agree that the U.S. and other countries with sovereignty in the Arctic should develop an agreement "similar to the Antarctic Treaty," which bans mineral mining and reserves the region for peaceful uses such as research and tourism.
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From the negotiating history to the present, freedom of the seas has been the principle U.S. national interest in the treaty. In early 2007, Assistant to the President for National Security Affairs Stephen B. Hadley wrote to the Chairman of the Senate Foreign Relations Committee, “the Convention supports navigational rights critical to military operations and essential to the formulation and implementation of the President’s National Security Strategy, as well as the National Strategy for Maritime Security.”67 On May 15, 2007, President Bush declared, “Joining [the Law of the Sea Con- vention] will serve the national security interests of the United States, including the maritime mobility of our armed forces world- wide.”68 Shortly thereafter, on June 26, 2007, the Joint Chiefs of Staff, which includes the Chairman and the Service Chiefs, all signed a letter to the Senate in support of the Convention.69