The Law of the Sea Convention: The Case for Senate Action
We also should remember that the United States already has been abiding by the Law of the Sea Convention since President Reagan's 1983 Statement of Oceans Policy. In addition, the United States is a party to the 1958 Convention on the Territorial Sea and Contiguous Zone, a predecessor to the Law of the Sea Convention. Many of the provisions of the 1958 Convention are less advantageous to the United States than comparable provisions in the Law of the Sea Convention.
Given that the United States has been abiding by all but one provision of the Treaty for the last 21 years and that we are already a party to a less advantageous international agreement on ocean law, dire predictions about the hazards to our sovereignty of joining the Law of the Sea Convention ring particularly hollow.
The debate on the Convention would be just an interesting political science case study if it were not for the fact that there are serious consequences to not ratifying it. The Convention comes open for amendment for the first time in November of this year. If the United States is not party to the Convention at that time, we will not have a seat at the table to protect against proposed amendments that would roll back Convention rights we fought hard to achieve.
Some nations may press for restrictions on the movement of naval or commercial vessels near their coastline. Others may pursue the right to exclude nuclear-powered vessels from their territorial waters. (Under the Convention, a ship's propulsion system cannot be used as an argument to restrict its movements.) As a party, we will be in a very strong position to prevent harmful amendments.
In addition, the Convention's Commission on the Limits of the Continental Shelf will soon begin making decisions on claims to continental shelf areas that could impact the United States' own claims to the area and resources of our broad continental margin. Russia is already making excessive claims in the Arctic. Unless we are party to the Convention, we will not be able to protect our national interest in these discussions.
Opponents seem to think that if the U.S. declines to ratify the Law of the Sea, it will evaporate into the ocean mists. They seem to think that multi-lateral responsibilities in this case can be avoided if we stay out of the Convention. Unlike some treaties, such as the Kyoto Agreement and the Comprehensive Test Ban Treaty, where U.S. non-participation renders the treaty irrelevant or inoperable, the Law of the Sea will continue to form the basis of maritime law regardless of whether the U.S. is a party. International decisions related to national claims on continental shelves beyond 200 miles from our shore, resource exploitation in the open ocean, navigation rights, and other matters will be made in the context of the treaty whether we join or not.
Consequently, the United States cannot insulate itself from the Convention merely by declining to ratify. There are 145 parties to the Convention, including every major industrialized country. The Convention is the accepted standard in international maritime law. Americans who use the ocean and interact with other nations on the ocean, including the Navy, shipping interests, and fisherman, have told me that they already have to contend with provisions of the Law of the Sea on a daily basis. They want the United States to participate in the structures of Law of the Sea to defend their interests and to make sure that other nations respect our rights and claims.
The fact that these concerns have been allowed to sideline the treaty for ten years is a bad sign for U.S. foreign policy in an age of terrorism. If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.
Eventually, however, I believe that the United States will become a party to the Convention because events will transpire that will brightly illuminate the costs of not ratifying it. At some point, a foreign nation will seek rule changes to the treaty that restrict passage by U.S. Navy vessels. At some point, our oil and mining industries will want to prospect beyond the 200-mile Exclusive Economic Zone. They won't do that without the international legal certainty provided by the Law of the Sea that their claims and investments will be respected by other nations. At some point, Russia or some other country will succeed in having excessive ocean claims recognized because we are not there to stop them.
My message today is that it is irresponsible for us to wait to ratify the Law of the Sea until we feel the negative consequences of our absence from the Convention. The Senate should ratify the Law of the Sea Convention now in the interest of U.S. national security, the U.S. economy, and the American people.
Opponents are similarly reluctant to mention the unanimous support of affected U.S. industries. To oppose the treaty on economic grounds requires opponents to say that the oil, natural gas, shipping, fishing, boat manufacturing, exporting, and telecommunications industries do not understand their own bottom lines. It requires opponents to say that this diverse set of industries is spending money and time lobbying on behalf of an outcome that will be disadvantageous to their own interests.
The vast majority of conservative Republicans would support, in prospect, a generic measure that expands the ability of American oil and natural gas companies to drill for resources in new areas, solidifies the Navy's rights to traverse the oceans, enshrines U.S. economic sovereignty over our Exclusive Economic Zone extending 200 miles off our shore, helps our ocean industries create jobs, and reduces the prospects that Russia will be successful in claiming excessive portions of the Arctic. All of these conservative-backed outcomes would result from U.S. ratification of the Law of the Sea Convention. Yet the treaty is being blocked because of ephemeral conservative concerns that boil down to a discomfort with multi-lateralism.