Testimony of John Norton Moore: United States Adherence to the Law of the Sea Convention: A Compelling National Interest
According to the Department of State, the United States is already a party to more than 85 agreements (most of them multilateral in nature) that provide for the resolution of disputes by the International Court of Justice. More than 200 treaties – including civil air transport agreements and various types of investment treaties – provide for mandatory arbitration at the request of a party. In addition, there are a number of international organizations that include dispute resolution mechanisms, including the U.S.- Iran Claims Tribunal, and the International Civil Aviation Organization. The acceptance of arbitration in the Law of the Sea Convention is hardly a departure for the United States. Moreover, unlike most such dispute settlement provisions, the Law of the Sea Convention specifically permits the United States to not accept submission of disputes concerning military activities. This provision was insisted on by the United States in the negotiations leading to the Convention and was supported by navies a ll over the world.
Paradoxically, the critics seem not to have noticed that the less protective 1958 Conventions already binding on the United States, unlike the 1982 Convention, contain no denunciation clause. Unless the United States adheres to the 1982 Convention, which would automatically supercede our obligations under the 1958 Conventions, we would be faced with substantial uncertainty about revision or withdrawal from the 1958 Conventions. Under the 1958 Conventions, a request for revision of the Conventions would simply be referred to the United Nations General Assembly, which would then “decide upon the steps, if any, to be taken in respect of such requests.” And, in the absence of a denunciation clause in the 1958 Conventions, it would be unclear under international law whether the United States would be able to lawfully withdraw at all from these Conventions. In sharp contrast, not only will adherence to the 1982 Convention automatically supercede outmoded United States obligations under the 1958 Conventions, but the 1982 Convention does contain a denunciation clause. Under Article 317 of the Convention the United States may leave the Convention after one year following a simple denunciation. Thus, if the horribles espoused by the critics were to occur, the United States could simply denounce the Convention and withdraw;
Some critics seem also to act as though United States non-adherence would prevent the Convention from coming into effect, that we can engage in further renegotiation, or that we can simply ignore the Convention in our relations with other nations. None of these assumptions is true. The 1982 Convention is in force for 145 nations and is today the basic legal regime for the world’s oceans. For example, whether or not the United States adheres to the Convention, the Seabed Authority will remain in place. The only difference will be that the United States will gratuitously deprive itself of its deep seabed mining industry and our ability to control the rules and regulations, amendments and any distribution of revenues to states parties in the actions of the Authority. And following a major renegotiation at United States insistence before the Convention went into force (a renegotiation that met all United States conditions established by President Reagan for United States acceptance) there is zero possibility of further renegotiation. Any amendments from this point forward can only come from the participation of states parties using normal Convention provisions for amendment. Similarly, whether or not we are a party to the Convention, when the United States seeks to mobilize its allies around an important initiative such as the Proliferation Security Initiative, it will quickly find, as it has, that our allies will insist on compliance with the Convention provisions;
Criticisms that under Article 20 of the 1982 Convention submarines are required to navigate on the surface and to show their flag, without noting that this obligation is already binding on the United States under Article 14 of the 1958 Territorial Sea Convention. Nor does this criticism even bother to mention the critical difference between the 1958 and 1982 Conventions, that under the 1982 Convention, this obligation no longer applies in straits used for international navigation. In such straits there is a right under the 1982 Convention of “transit passage,” permitting transit in the normal mode; which includes submerged transit and overflight.
Criticisms that the United States should not commit to provisions in the 1982 Convention to the effect that the high seas are “reserved” for peaceful purposes and that parties to the treaty shall refrain from “any threat or use of force against the territorial integrity or political independence of any state,” without noting that these obligations simply parallel the obligation in the United Nations Charter, already binding on the United States and every other nation in the world banning the aggressive use of force. These obligations, as those in the United Nations Charter, do not in any way inhibit either the right of individual or collective defense or otherwise lawful military activities. If these provisions did in any way inhibit such activities in the world’s oceans there would have been no agreement on the Convention. This is abundantly evident in the robust naval activity of nations for which the Convention has been in force;
The argument that perhaps the renegotiation of PartXI won’t be binding after all and that we will be stuck with the old Part XI. This argument, of course, is flatly at odds with Article 2 of the renegotiation agreement which provides “[i]n the event of any inconsistency between this Agreement and Part XI, the provisions of this Agreement shall prevail.” It is at odds with the experience of the United States from 1994 through 1998 when we participated in the Authority on a provisional basis. It is at odds with the practice of the International Seabed Authority toward nations which had adhered to the Law of the Sea Convention before the renegotiation in treating them as fully bound by the renegotiation agreement. It is further at odds with the practice of the Authority in establishing a chambered voting system, a Finance Committee, and mining contracts, all of which are based on the renegotiation agreement. And it is at odds with the official Compendium of Basic Documents: The Law of the Sea published in 2001 by the Seabed Authority that not only has an extensive section rewriting Part XI to fully take account of the renegotiation, but which begins this section by noting: “[i]n the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement shall prevail.”20 To my knowledge, not a single nation in the world has advanced this argument asserted by critics. More importantly, on an issue of such importance, the United States would have not only the legal right to leave the Convention, but given our insistence on the renegotiation we would be expected to exercise our denunciation right under Article 317, should a serious effort be made to set aside the renegotiation of Part XI. This argument, then, simply throws up another horrible without noting that the alternative recommended, not moving forward with adherence, will immediately have continuing substantial costs for the United States, which, unlike the imagined horrible, are neither contingent nor imaginary;
Assertions that the Convention will create authority for an international organization to tax American citizens. The Convention does nothing of the kind. It does provide for payments on “commercial terms” to mine deep seabed minerals that do not belong to the United States. This is similar to payments to Indonesia or Chile for the ability to have access to resources in those countries. We would not remotely regard payments for such access as authority for taxation of American citizens by Indonesia or Chile. Moreover, unlike arrangements for minerals mining access in foreign countries, in the new deep seabed Authority United States firms will have assured access to mine, and the disposition of payments as well as the rules and regulations for such mining will be subject to a United States veto. Moreover, that veto is exercisable with respect to the distribution of revenues from firms of all other nations mining the deep seabed – thus effectively multiplying the ability of the United States to ensure that the distributions to states parties are put to a good use. Similarly, the Convention provides for minimal revenue sharing for oil and gas development in areas beyond the 200 mile economic zone. Such revenues, which would amount to an average of two to five percent over the life of a well, were an enormous bargain for the United States as payment in return for our obtaining sovereign rights over resources in an area of the continental shelf beyond 200 nautical miles that is roughly equivalent to the size of California. That is, we retain ninety-five to ninety-eight percent of the value of the future resources in this area beyond the 200 mile economic zone placed under United States resource jurisdiction by the Convention. Indeed, the revenue sharing system adopted was drafted by a representative of an American oil company on our law of the sea industry advisory group and has been perfectly acceptable to the oil industry. And even beyond the great bargain that was the purchase of Alaska, in this case not a penny is due until seven years after production begins. Moreover, once again, the distribution of any such revenues to states parties, including revenues from this small royalty from all production beyond 200 miles from other nations, would be subject to a United States veto;