Testimony of John Norton Moore: United States Adherence to the Law of the Sea Convention: A Compelling National Interest
Clearly, a position that the United States should be unable to enter into international agreements is unacceptable. Such a position would deprive the United States of a fundamental sovereign right. Indeed, it would treat the United States like a child unable to enter into contracts. Nor would such a position be consistent with the Constitution of the United States, which clearly envisages that the United States will be able to enter into international agreements. And, of course, such a position would be absurd in relation to the conduct of international relations by this great Nation. For example, the ability of the United States to enter into the NATO Treaty was of enormous importance to this country. Indeed, NATO may well have prevented World War III. Similarly, with respect to the war for the fourth freedom (the war against terror)10 the United States is a party to many important multilateral anti-terror treaties which delegitimate terrorist activity. In fact, the United States is, as part of the national effort with respect to the Proliferation Security Initiative (PSI), seeking to strengthen one of those, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention), to assist our PSI effort. In relation to oceans issues alone, the United States is party to many multilateral agreements concerning such issues as protection of the marine environment, the protection of whales and fish stocks, and the safety of life at sea. I doubt anyone would suggest that United States leadership in negotiating and adhering to these, or many other such agreements, was wrong.
If one were to travel back in time and inform the high-level members of the eighteen agency National Security Council Interagency Task Force which formulated United States oceans policy under Presidents Nixon and Ford during the principal formative Convention process – an effort never matched before or since in the care with which it reviewed United States international oceans interests – that the Convention today in force, powerfully meeting all United States oceans interests, would not yet be in force for the United States nine years after being submitted to the Senate, the news would have been received with incredulity. As this suggests, the Congress should understand that United States oceans interests, including our critical security interests, are being injured – and will continue to be injured – until the United States ratifies the Convention. Among other costs of non-adherence we have missed out in the development of rules for the International Law of the Sea Tribunal and the Commission on the Limits of the Continental Shelf, and in ongoing consideration of cases before the Tribunal as well as ongoing consideration of the Russian continental shelf claim now before the Continental Shelf Commission; we have had reduced effect in the ongoing struggle to protect navigational freedom and our security interests against unilateral illegal claims; and we have been unable to participate in the decisions of the meetings of States Parties. These are not just my conclusions. They are the conclusions of every Chief of Naval Operations and every Secretary of State who has considered these issues and of all the law of the sea experts I work with on a continuing basis.
In contrast, quite to the contrary of arguments advanced against the Convention by some opponents, the Convention does not remove United States sovereignty or sovereign rights over the resources of the deep seabed. Neither the United States nor any other Nation has now, or has ever had, sovereignty over the mineral resources beyond the continental margins. In fact, it has been a consistent position of the United States and other developed nations to oppose any extension of national sovereignty into this area. Indeed, it is precisely because no nation in the world controls the mineral resources of the ocean basins that the Convention has created a narrowly limited international mechanism to permit mining of these resources. For without such a regime, industry simply cannot obtain the legal rights necessary for the over billion dollar cost of a deep seabed mining operation.
With respect to our oil and gas and deep seabed mining industries, however, there are especially compelling reasons why the United States needs to promptly adhere to the Convention. Our oil and gas industry is simply unlikely to move forward in development of the continental margin of the United States in areas beyond 200 nautical miles until United States adherence solidifies the legal regime for them in such areas. And our deep seabed mining industry is now moribund, and will remain so, absent United States adherence to the Convention. The United States led the world toward development of the technology for the recovery of deep seabed minerals. Our industry collectively expended more than $200 million to identify and obtain international recognition for five prime mine sites. At present three of those sites lie abandoned and the other two are on hold with zero chance of activity absent United States adherence. The Congress should clearly understand that accepting the arguments of the critics and opposing moving forward with the Convention is to permanently put the innovative United States deep seabed mining industry out of business, and to accept a reality that only the firms of other nations will be able to mine the deep seabed.
The Law of the Sea Convention provides strong protection for the marine environment. Indeed, the Rio Conference on the Environment accepted Part XII of the Convention as the core environmental provisions for the world’s oceans. Not surprisingly, American environmental groups overwhelmingly support adherence to the Convention. Indeed, in one case, that of the protection of marine mammals, the Convention embodies the initiative of a United States environmental NGO. Thus, Article 65 of the Convention on the protection of marine mammals was negotiated following important work done by the Connecticut Cetacean Society. United States influence was also felt in requirements concerning monitoring, publication of reports, and assessment of potential effects of activities. The United States was further successful in avoiding any environmental double standard in the world’s oceans.
Remarkably, the important new environmental provisions of the Convention are sufficiently balanced that they enjoy the support of all United States oceans interests. Support for this Convention is that rare public policy issue on which both industry and environmental groups strongly agree.
More effective engagement with respect to security incidents and concerns resulting from illegal oceans claims by others. Examples include the new law of the People’s Republic of China (PRC) providing that Chinese civil and military authorities must approve all survey activities within the 200 mile economic zone; the PRC harassment of the Navy’s ocean survey ship, the USNS Bowditch, by Chinese military patrol aircraft and ships when the Bowditch was 60 miles off the coast; the earlier EP-3 surveillance aircraft harassment; Peruvian challenges to U.S. transport aircraft in the exclusive economic zone, including one aircraft shot down and a second incident in which two U.S. C-130s had to alter their flight plan around a claimed 650 mile Peruvian “flight information area”; the North Korean 50-mile “security zone” claim; the Iranian excessive base line claims in the Persian/Arabian Gulf; the Libyan “line of death”; and the Brazilian claim to control warship navigation in the economic zone;
Enhancing access rights for United States marine scientists. Access for United States marine scientists to engage in fundamental oceanographic research is a continuing struggle. The United States will have a stronger hand in negotiating access rights as a party to the Convention. As one example of a continuing problem, Russia has not honored a single request for United States research access to its exclusive economic zone in the Arctic Ocean from at least 1998, and the numbers of turn-downs for American ocean scientists around the world is substantial. This problem could become even more acute as the United States begins a new initiative to lead the world in an innovative new program of oceans exploration;
United States allies, almost all of whom are parties to the Convention, would welcome U.S. adherence as a sign of a more effective United States foreign policy. For some years I have chaired the United Nations Advisory Panel of the Amerasinghe Memorial Fellowship on the Law of the Sea in which the participants on the Committee are Permanent Representatives to the United Nations from many countries. Every year our friends and allies ask when we will ratify the Convention, and they express to me their puzzlement as to why we have not acted sooner. In my work around the world in the oceans area I hear this over and over – our friends and allies with powerful common interests in the oceans are astounded and disheartened by the unilateral disengagement from oceans affairs that our non-adherence represents;
Efforts to renegotiate other unacceptable treaties would receive a boost when an important argument now used by other nations against such renegotiation with us is removed. This argument now used against us, for example, in the currently unacceptable International Criminal Court setting, is: “[W]hy renegotiate with the United States when the LOS renegotiation shows the U.S. won’t accept the Convention even if you renegotiate with them and meet all their concerns?” Let me emphasize this point. The United States will be severely damaged in its international engagement if other nations believe that we will not adhere to agreements, whether they are in our interest or not. And this is particularly true after other nations accommodate the United States in all that it asks in a renegotiation and then see United States inaction toward the renegotiated agreement. If we are to maintain our negotiating leverage we must demonstrate that we distinguish between good and bad international agreements and that we accept the good while rejecting the bad; finally
The United States would obtain the benefit of third party dispute settlement in dealing with non-military oceans interests. The United States was one of the principal proponents in the law of the sea negotiations for compulsory third party dispute settlement for resolution of conflicts other than those involving military activities. We supported such mechanisms both to assist in conflict resolution generally and because we understood that third party dispute resolution was a powerful mechanism to control illegal coastal state claims. Even the Soviet Union, which had traditionally opposed such third party dispute settlement, accepted that in the law of the sea context it was in their interest as a major maritime power to support such third party dispute settlement.17 International arbitration, which the President has recommended for the United States in this case, is about as American as apple pie. Indeed, George Washington took great pride in the initiative that led to the Jay Treaty and settlement through arbitration of disputes we had with the United Kingdom. This Convention, negotiated by the first Chief Justice of the United States and one of the principal draftsmen of the Federalist Papers, may well have avoided a second war with Britain at a time the new Nation could ill afford it. And, following the Civil War, the United States again led the world to arbitration in the Alabama Claims Arbitration that resulted in substantial net payments to the United States. Modern international arbitration owes its existence to these important American initiatives.18