Statement of John F. Turner: To examine the "United Nations Convention on the Law of the Sea." (March 23, 2004)
U.S. law and practice are already generally compatible with the Convention. Except [with respect to the enforcement of certain deep seabed mining decisions, which would be necessary at some point after U.S. accession], the United States does not need to enact new legislation to supplement or modify existing U.S. law, whether related to protection of the marine environment, human health, safety, maritime security, the conservation of natural resources, or other topics within the scope of the Convention. The United States, as a party, would be able to implement the Convention through existing laws, regulations, and practices (including enforcement practices), which are consistent with the Convention and which would not need to change in order for the United States to meet its Convention obligations….[t]he Convention would not create private rights of action or other enforceable rights in U.S. courts, apart from its provisions regarding privileges and immunities to be accorded to the Convention’s institutions.
With respect to protection of the U.S. coastal marine environment in particular, I would note that the Executive Branch, through the Department of Justice, the Department of Homeland Security, the Coast Guard, and the Environmental Protection Agency, has pursued a vigorous, successful enforcement initiative to detect and deter pollution from ships. In line with the policy of successive Administrations since 1983 to act in accordance with the balance of interests reflected in the Convention’s provisions regarding traditional uses of the oceans, U.S. marine pollution enforcement efforts have been undertaken in a manner consistent with the Convention, including its allocation of enforcement responsibilities among coastal States, flag States, and port States in various situations.
In order to ensure that the relationship between U.S. law and the Convention’s enforcement provisions is a seamless one, the Administration recommended, and the proposed resolution of advice and consent contains, a number of understandings that, among other things, harmonize certain domestic terminology with the Convention and confirm the longstanding right of a State to impose and enforce conditions for entry of foreign vessels into its ports. The Convention’s support of a State’s ability to exercise its domestic authority to regulate the introduction of invasive species into the marine environment and to regulate marine pollution from industrial operations on board foreign vessels is also highlighted.
The changes set forth in the 1994 Agreement meet our goal of guaranteed access by U.S. industry to deep seabed minerals on the basis of reasonable terms and conditions. The Agreement overhauls the decision making procedures of Part XI to accord the United States, and others with major economic interests at stake, decisive influence over future decisions on possible deep seabed mining. The United States is guaranteed a seat on the critical decision-making body; no substantive obligation can be imposed on the United States, and no amendment can be adopted, without its consent.
The Agreement restructures the deep seabed mining regime along free-market principles. It scales back the structure of the organization to administer the mining regime and links the activation and operation of institutions to the actual development of concrete interest in seabed mining. The International Seabed Authority has no regulatory role other than administering the mining regime, and no ability to levy taxes.
A future decision, which the United States and other investors could block, is required before the organization's potential operating arm (the Enterprise) may be activated, and any activities on its part are subject to the same Convention requirements as other commercial enterprises. States have no obligation to finance the Enterprise, and subsidies inconsistent with GATT/WTO are prohibited. Of particular importance, the Agreement eliminates all requirements for mandatory transfer of technology and production controls that were contained in the original version of Part XI.
While we have been able to gain certain benefits of the Convention from this approach, formal U.S. adherence to the Convention would have many advantages:
- The United States would be in a stronger position invoking a treaty’s provisions to which it is party, for instance in a bilateral disagreement where the other country does not understand or accept those provisions.
- While we have been able to rely on diplomatic and operational challenges to excessive maritime claims, it is desirable to establish additional methods of resolving conflict.
- The Convention is being implemented in various forums, both those established by the Convention and certain others (such as the International Maritime Organization). While the Convention’s institutions were not particularly active during the past decade since the Convention entered into force, they are now entering an operational phase and are elaborating and interpreting various provisions. The United States would be in a stronger position to defend its military interests and other interests in these forums if it were a party to the Convention.
- Becoming a party to the Convention would permit the United States to nominate members for both the Law of the Sea Tribunal and the Continental Shelf Commission. Having U.S. members on those bodies would help ensure that the Convention is being interpreted and applied in a manner consistent with U.S. interests.
- As a party, the United States could get the legal certainty with respect to its continental shelf claim beyond 200 miles that will facilitate activities in those areas by the U.S. oil and gas industry.
- Becoming a party to the Convention would strengthen our ability to deflect potential proposals that would be inconsistent with U.S. interests, including freedom of navigation. It is worth noting that the Convention will be open to amendments beginning next November. Beyond those affirmative reasons for joining the Convention, there are downside risks of not acceding to the Convention. U.S. mobility and access have been preserved and enjoyed over the past twenty years largely due to the Convention’s stable, widely accepted legal framework. It would be risky to assume that it is possible to preserve indefinitely the stable situation that the United States currently enjoys. Customary international law may be changed by the practice of States over time and therefore does not offer the future stability that comes with being a party to the Convention.
[MYTH] The Convention gives the UN its first opportunity to levy taxes.
The Convention does not provide for or authorize taxation of individuals or corporations. There are revenue sharing provisions for oil/gas activities on the continental shelf beyond 200 miles and administrative fees for deep seabed mining operations. The amounts involved are modest in relation to the total economic benefits, and none of the revenues would go to the United Nations or be subject to its control. U.S. consent would be required for any expenditure of such revenues.
[MYTH] The Convention mandates another tribunal to adjudicate disputes.
- The Convention established the International Tribunal for the Law of the Sea. However, Parties are free to choose other methods of dispute settlement. The United States would elect two forms of arbitration rather than the Tribunal.
- The United States would be subject to the Sea-bed Disputes Chamber, should deep seabed mining take place under the regime established by the Convention. The proposed Resolution of Advice and Consent, however, makes clear that the Sea-bed Disputes Chamber’s decisions “shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such procedures shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United States.”
[MYTH] The International Seabed Authority has the power to regulate seven-tenths of the earth’s surface, impose international taxes, etc.
- The Convention addresses seven-tenths of the earth’s surface. However, the International Seabed Authority (ISA) does not.
- The authority of the ISA is limited to administering mining of minerals in areas of the deep seabed beyond national jurisdiction, generally more than 200 miles from the shore of any country. At present, and in the foreseeable future, such deep seabed mining is economically unfeasible. The ISA has no other role and has no general regulatory authority over the uses of the oceans, including freedom of navigation and overflight.
- The ISA has no authority or ability to levy taxes.
[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.
- It is true that the Convention was drafted before the war on terror. However, the Convention does not prevent the United States from waging a successful war on terror.
- On the contrary, maximum maritime naval and air mobility that is currently assured by the Convention 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 – and is the best guarantee that our forces will not be hindered in the future.
- Thus, the Convention supports our war on terrorism by providing important stability for navigational freedoms and overflight. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and not be contingent upon approval from nations along the routes. A stable legal regime for the world’s oceans will help guarantee global mobility for our Armed Forces.
[MYTH] The Convention adversely affects activities to be undertaken pursuant to the Proliferation Security Initiative.
- On the contrary, joining the Convention would strengthen PSI efforts.
- PSI’s own rules require that PSI activities be consistent with relevant international law and frameworks, which include the Convention’s navigation provisions.
- The Statement of Interdiction Principles pursuant to which the PSI operates explicitly specifies that interdiction activities under PSI will be undertaken “consistent with national legal authorities and relevant international law and frameworks.” The relevant international law framework for PSI includes customary international law that is codified in the Law of the Sea Convention.
- The Convention provides solid legal bases for taking enforcement action against vessels and aircraft suspected of engaging in proliferation of WMD, e.g., exclusive port and coastal State jurisdiction in internal waters and national airspace; coastal State jurisdiction in the territorial sea and contiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which the flag State may, by agreement, waive in favor of other States); and universal jurisdiction over stateless vessels.
- All of the United States’ partners in the PSI are parties to the Convention and accordingly observe its provisions.
- As Admiral Michael Mullen, Vice Chief of Naval Operations, testified before the Foreign Relations Committee, being party to the Convention “would greatly strengthen [the Navy’s] ability to support the objectives” of PSI by reinforcing and codifying freedom of navigation rights on which the Navy depends for operational mobility.
[MYTH] Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as anti-submarine warfare technology).
- No technology transfers are required by the Convention. Mandatory technology transfers were eliminated by Section 5 of the Annex to the Agreement amending Part XI of the Convention.
- Article 302 of the Convention provides that nothing in the Convention requires a party to disclose information the disclosure of which is contrary to the essential interests of its security.