Statement of John D. Negroponte: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention
[ Page 4 ]
Joining is a win/win proposition. We will not have to change U.S. laws or practices, or give up rights, and we will benefit in a variety of ways. The United States already acts in accordance with the Convention for a number of reasons:
- First, as noted, we are party to a group of 1958 treaties that contain many of the same provisions as the Convention.
- Second, the United States heavily influenced the content of the 1982 Convention, based on U.S. law, policy, and practice.
- Finally, the treaty has been the cornerstone of U.S. oceans policy since 1983, when President Reagan instructed the Executive Branch to act in accordance with the Convention’s provisions with the exception of deep seabed mining.
Thus, we are in the advantageous position in the case of this treaty that U.S. adherence to its terms is already time-tested and works well.
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Myth: The United States could and should renegotiate a new law of the sea agreement, confined to the provisions on navigational freedoms.
Reality: Assuming, for the sake of argument, that this were a desirable outcome, other countries would have no reason or incentive to enter into such a negotiation. The Convention is widely accepted, having been joined by over 150 parties including all other major maritime powers and most other industrialized nations. Those parties are generally satisfied with the entirety of the treaty and would be unwilling to sacrifice other provisions of the Convention, such as benefits associated with exclusive economic zones and sovereign rights over the resources they contain, as well as continental shelves out to 200 nautical miles and in some cases far beyond. And parties that would like to impose 20 new constraints on our navigational freedoms certainly would not accept the 1982 version of those freedoms.
Myth: President Reagan thought the treaty was irremediably defective.
Reality: As explained above, President Reagan identified only certain deep seabed mining provisions of the Convention as flawed. His 1983 Ocean Policy Statement demonstrates that he embraced the non-deep-seabed provisions and established them as19 official U.S. policy. The 1994 Agreement overcomes each of the objections to the deep seabed mining provisions identified by President Reagan. As President Reagan’s Secretary of State, George P. Shultz, noted in his recent letter to Senator Lugar, “It surprises me to learn that opponents of the treaty are invoking President Reagan’s name, arguing that he would have opposed ratification despite having succeeded on the deep sea-bed issue. During his administration, with full clearance and support from President Reagan, we made it very clear that we would support ratification if our position on the sea-bed issue were accepted."
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Myth: The United States can rely on use or threat of force to protect its navigational interests fully.
Reality: The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights. But these operations entail a certain degree of risk, as well as resources. Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a stronger position to assert our rights.
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Myth: The Convention would prohibit or impair U.S. intelligence and submarine activities.
Reality: The Convention does not prohibit or impair intelligence or submarine activities. Joining the Convention would not affect the conduct of intelligence activities in any way. This issue was the subject of extensive hearings in 2004 before the Senate Select Committee on Intelligence. Witnesses from Defense, CIA, and State all confirmed that U.S. intelligence and submarine activities are not adversely affected by the Convention.
We follow the navigational provisions of the Convention today and are not adversely affected; similarly, we would not be adversely affected by joining.
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Myth: The Convention was drafted before – and without regard to – the war on terror and what the United States must do to wage it successfully.
Reality: The Convention enhances, rather than undermines, our ability to wage the war on terror. Maximum maritime naval and air mobility is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for our forces, weapons, and materiel to get to the fight without hindrance. It is essential that key sea and air lanes remain open as a matter of international legal right and not be contingent upon approval from nations along those routes. The senior U.S. military leadership – the Joint Chiefs of Staff – has recently confirmed the continuing importance of U.S. accession to the Convention in a letter to the Committee.
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Myth: The International Tribunal for the Law of the Sea could order the release of a vessel apprehended by the U.S. military.
Reality: The Tribunal has no jurisdiction to order release in such a case. Its authority to address the prompt release of vessels applies only to two types of cases: fishing and17 protection of the marine environment. Further, even if its mandate did extend further – which it does not – the United States will be taking advantage of the optional exclusion of military activities from dispute settlement. As such, in no event would the Tribunal have any authority to direct the release of a vessel apprehended by the U.S. military.
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Myth: The Convention would permit an international tribunal to second-guess the U.S. Navy.
Reality: No international tribunal would have jurisdiction over the U.S. Navy. U.S. military activities, including those of the U.S. Navy, would not be subject to any form of dispute resolution. The Convention expressly permits a party to exclude from dispute settlement those disputes that concern “military activities.” The United States will have the exclusive right to determine what constitutes a military activity.
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Although the first several years of the Convention’s life were fairly quiet, its provisions are now being actively applied, interpreted, and developed. The Convention’s institutions are up and running, and we -- the country with the most to gain and lose on law of the sea issues -- are sitting on the sidelines. For example, the Commission on the Limits of the Continental Shelf (which is the technical body charged with addressing the continental shelf beyond 200 nautical miles) has received nine submissions and has made recommendations on two of them, without the participation of a U.S. commissioner. Recommendations made in that body could well create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Our position as a non-Party puts us in a far weaker position to advance U.S. interests than should be the case for our country.
We also need to join now to lock in, as a matter of treaty law, the very favorable provisions we achieved in negotiating the Convention. It would be risky to assume that we can preserve ad infinitum the situation upon which the United States currently relies. As noted, there is increasing pressure from coastal States to augment their authority in a manner that would alter the balance of interests struck in the Convention. We should secure these favorable treaty rights while we have the chance.
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The United States has one of the largest continental shelves in the world; in the Arctic, for example, our shelf could run as far as 600 miles from the coastline. However, as noted, we have no access to the Commission, whose recommendations would facilitate the full exercise of our sovereign rights – whether we use them to explore and exploit natural resources, prevent other countries from doing so, or otherwise. In the absence of the international recognition and legal certainty that the Convention provides, U.S. companies are unlikely to secure the necessary financing and insurance to exploit energy resources on the extended shelf, and we will be less able to keep other countries from exploiting them.
Joining the Convention provides other economic benefits: it also gives coastal States the right to claim an exclusive economic zone (“EEZ”) out to 200 nautical miles. That gives the United States, with its extensive coastline, the largest EEZ of any country in the world. In this vast area, we have sovereign rights for the purpose of exploring, exploiting, conserving, and managing living and non-living natural resources.