Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003)
[ Page 4 ]
The military activities exception is of obvious importance to the activities of the U.S. Armed Forces. As a result, we have examined this issue thoroughly to make certain that a tribunal cannot question whether U.S. activities are indeed “military” for purposes of that exception. Allow me to offer an example to illustrate the Administration’s concern. It is possible to imagine a scenario wherein another State Party calls upon a tribunal to decide whether or not our military surveys in that country’s EEZ or reconnaissance aircraft flying in the airspace above that country’s EEZ—both of which are military activities of paramount importance—are consistent with the Convention.
In this scenario, if a tribunal were permitted to interfere with such military activities, this would have a major impact on our military operations and U.S. national security.
In this light, the Administration closely examined the Convention, its negotiating history, and the practices of the tribunals constituted under the Convention. Based on this examination, the Administration believes that it is clear that whether an activity is “military” is for each State Party to determine for itself. Indeed, having the ability to determine what is a “military activity” involves vital national security interests that are critical to our ability to defend the Nation, protect our forces overseas, safeguard our interests abroad, and assist our friends and allies in times of need.
The Administration thus recommends that the United States submit a declaration electing to exclude all three of these categories of disputes from binding dispute settlement. With respect to the particular category of disputes concerning military activities, the Administration further recommends that the U.S. declaration make clear that its consent to accession to the Convention is conditioned upon the understanding that each Party has the exclusive right to determine which of its activities are “military activities” and that such determinations are not subject to review. We will provide the Committee with language on this point.
[ Page 3 ]
To begin, once in force, the Administration will conduct biennial reviews of the treaty’s implementation, including the identification of any needed changes in the Convention’s implementation or in the Convention itself. Such reviews will help the United States assess whether the Convention continues to serve U.S. interests. As part of these reviews, the Administration will seek to identify any changes in the treaty or its implementation that may be required to adapt the treaty to changes in the global security situation. In addition, these biennial reviews will be coupled with a more comprehensive review after ten years. The results of these reviews will be shared with the Senate.
Reviews of this kind are not the only option for ensuring the Convention continues to serve U.S. interests. Another option that we considered is that of a sunset provision, that is, limiting the length of time that the United States is a party to the Convention, which has disadvantages as well as advantages. And, needless to say, the United States could, of course, withdraw from the Convention if U.S. interests are ever seriously threatened.
In any case, the goal is to make certain that the Convention continues to meet our national security requirements, protects our strategic flexibility, and advances broader U.S. interests in a world that is constantly changing.
[ Page 2 ]
Third, accession will not only provide the United States with additional mechanisms through which it can strive to stop the erosion of freedoms critical to the U.S. Armed Forces, but it will also provide the United States another forum to advance U.S. interests. For example, we believe that as a party to the Law of the Sea Convention, the United States will have another avenue through which to achieve international consensus proscribing the maritime trafficking of weapons of mass destruction, their delivery systems, and related materials to and from states of concern and terrorists. To be sure, we will avail ourselves of every available option to halt the proliferation of weapons of mass destruction on the high seas.