The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.
Myth: The United States is giving up sovereignty to a new international authority that will control the oceans.
Nothing could be further from the truth. The United States does not give up an ounce of sovereignty in this convention. Rather, as noted, the convention solidifies a massive increase in resource and economic jurisdiction for the United States, not only to 200 nautical miles off our coasts, but to a broad continental margin in many areas even beyond that. The new International Seabed Authority (ISA) created by this convention, which, as noted, has existed for a decade and will continue to exist regardless of U.S. actions, deals solely with mineral resources of the deep seabed beyond national jurisdiction--it has nothing to do with the water column above the seabed. The deep seabed is not only an area in which the United States has no sovereignty; but one on which the United States and the entire world have consistently opposed extension of national sovereignty claims.
Myth: U.S. adherence will entail history's biggest voluntary transfer of wealth and surrender of sovereignty.
To the contrary, the convention enhances not only sovereignty of U.S. military ships and aircraft, but also bolsters our resource jurisdiction over a vast area off of our coasts. In fact, the convention supports the sovereign rights of the United States over extensive maritime territory and the natural resources therein, including a broad continental shelf that in many areas extends well beyond the 200-nm limit. The area of resource jurisdiction confirmed under national control of the United States by this convention is approximately equal to that of the continental United States and exceeds the area of the Louisiana Purchase, the purchase of Alaska or any other addition to U.S. sovereignty in history. It is also the most extensive of any nation in the world. The mandatory technology transfer provisions of the deep seabed mining sections in the original convention, to which the United States objected, were eliminated in the 1994 agreement. Any transfer of funds to nations from deep seabed mining revenues, or oil and gas development beyond 200 miles, is subject to a U.S. veto. As such, we not only have a veto over where our seabed mining revenue would go, but also over that of all nations worldwide. This new power is simply lost if we fail to adhere
Myth: The convention would turn the oceans over to the United Nations.
This is completely and utterly false; not a drop of ocean water nor an ounce of oceans resources would be turned over to the United Nations. To the contrary, the convention disappointed extreme internationalists who believed in "blue helmet" solutions to oceans issues. It placed all coastal resources of the water column and the continental shelf under coastal nation, rather than international, jurisdiction. And it maintained and strengthened freedom of navigation on the world's oceans. These critical issues in the negotiation, by far the most important, hugely strengthened national sovereign rights. Even the ISA that the convention created is an independent international authority, supported by the United States, and is necessary to provide stability of property rights to deep seabed minerals owned by no other nation. Without such an authority providing exclusive property rights to seabed mine sites of the deep ocean floor, seabed mining, including that by U.S. interests, would never be realized. And remember that this body is limited to the mineral resources of the deep seabed beyond national jurisdiction that have yet to be mined, in contrast with the billions of dollars in fisheries, oil and gas production on the continental margins, all of which are under national jurisdiction.
Myth: The convention "is designed to place fishing rights, deep-sea mining, global pollution and more under the control of a new global bureaucracy ..." (13) This is so erroneous that it would he humorous were it not so insistently advanced by critics. The executive branch, which led U.S. negotiations on the convention and supports the Senate's advice and consent, would never have supported such nonsense. The ISA deals solely with mineral resources beyond national jurisdiction, not with fishing, global pollution or navigation, nor with activities in the water column. If U.S. mining firms are ever to mine the deep seabed, particularly sites under no nation's ownership, it is necessary to create enforceable rights to this end. The United States is already party to hundreds of specialized international organizations. The ISA would be an unremarkable addition, one that after 11 years of operation currently has a staff of 28.
Myth: The convention gives the United Nations its first opportunity to levy taxes.
False--the convention does not provide for or authorize taxation of individuals or corporations. It does include modest revenue sharing provisions for oil and gas activities on the continental shelf beyond 200 miles after the first five years of production and certain fees for deep seabed mining operations. The oil and gas fees are less than the royalties paid to foreign countries for drilling off their coasts and none of the revenues go to the United Nations. These de minimus revenues, which average between two and four percent over the projected life of a well, were a small price to pay for enlarging the U.S. continental shelf by 15 percent, an area larger than the state of California. This is one of the reasons the U.S. oil and gas industry so strongly supports the convention. With respect to deep seabed mining, U.S. companies that apply for deep seabed mining licenses would pay their fees directly to the ISA; no implementing legislation would be necessary. United States consent-that is, its veto would be applicable-would be required for any transfer of such revenues. Yet because the United States is a non-party, U.S. companies currently lack the ability to engage in deep seabed mining under domestic authority alone. By ratifying the treaty, our firms will have this ability which will open up new revenue opportunities when deep seabed mining becomes economically viable. The alternative is no deep seabed mining for U.S. firms, except through other nations that are convention parties. When the Interior Department charges royalties to U.S. oil companies for the development of oil and gas from our continental shelf, it is not exercising a "taxing power," rather it is selling access to an asset. Similarly, royalties paid for these rights are not a "tax" on U.S. taxpayers any more than such royalties paid by U.S. miners to Chile or Indonesia to mine resources there are such a "tax." Perhaps most importantly, until the United States accedes to the convention, it will not be able to exercise its veto over distribution of revenues from every other nation in the world generated by these provisions. And when we do accede, we not only have veto rights over distribution of revenues from U.S. mines, but from all other seabed mines as well. As such, these provisions greatly expand U.S. influence over financial aid decisions.
Myth: The convention is harmful to the Proliferation Security Initiative (PSI). Again, this is false. The PSI has already been negotiated explicitly in conformance with the convention, and not surprisingly so, since the nations with which we coordinate in that initiative are parties to the convention. This charge apparently rests on the false belief that if the United States does not adhere to the convention, it will be free from any constraints in relation to oceans law. Again, this is a false assumption; we are today a party to the 1958 Geneva Convention that is much more restrictive than the 1982 convention now before the Senate. This charge is also misguided as it fails to understand the critically important interest we have in protecting navigational freedoms on, in and above the world's oceans. The convention allows our vessels to get on station, a capability that is essential before any issue even arises about boarding. Moreover, we emphatically do not want a legal regime that would permit any nation to seize U.S. commercial vessels in the world's seas. That would be a massive loss of U.S. sovereignty! The PSI was carefully constructed with parties to the 1982 convention, using the flag state, port state and other jurisdictional provisions of the 1982 convention precisely to avoid this problem. Nor is this charge at all realistic in failing to note that nothing in the Law of the Sea Convention could or does trump our inherent rights to individual and collective self-defense. Most recently, we note, Under-Secretary of State John Bolton, a principal architect of the PSI, testified to the Senate that adhering to the convention will not harm the PSI.
Myth: The convention would interfere with the operations of our intelligence community. Having either chaired or participated in the 18-agency National Security Council interagency process that drafted the United States' negotiating instructions for the convention, we found this charge so bizarre that we recently checked with the intelligence community to see if we had missed something. The answer that came back was that they, too, were puzzled by this charge, as there was absolutely no truth to it. We are confident that there is no provision in the convention which will, if approved by the Senate, constrain the operations of our intelligence community. In this regard, the United States is already bound by the 1958 convention, and since 1983, pursuant to President Reagan's order, we have operated under the provisions of the 1982 convention, with the exception of deep seabed mining issues associated with Part XI.
Myth: Freedom of navigation is only challenged from "[t]he Russian navy [that] is rusting in port [and] China has yet to develop a blue water capability...." (14)Sink the Law of the Sea Treaty — Bandow, Doug. — Cato Institute — Mar 15, 2004 [ More ]
The implication here is that the principal challenge to navigational freedom emanates from a major power and that we do not have any particular national concerns about freedom of navigation. But the 1982 convention deals with the law of peace, not war or self-defense. Thus, this argument misses altogether the serious and insidious challenge, which, again, is what the convention is designed to deal with; these repeated efforts by coastal nations to control navigation, including those from U.S. allies and trading partners, have through time added up to death by a thousand pin-pricks. This is the so-called problem of "creeping jurisdiction" which remains the central struggle in preserving navigational freedom for a global maritime power. After years of effort, we have won in the convention a legal regime that supports our efforts to control this "creeping jurisdiction." To unilaterally disarm the United States from asserting what was won against illegal claimants is folly and undermines our national security.
Myth: U.S. adherence to the convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy). Wrong--it is not true that our navigational freedoms are not threatened. There are more than 100 illegal, excessive claims around the globe that adversely affect vital navigational and over-flight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist excessive maritime claims by other countries that interfere with U.S. navigational rights as reflected in the convention. On occasion, these operations have entailed a certain amount of risk (e.g., the Black Sea bumping incident with the former Soviet Union in 1988). Being a party to the convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert its rights, thus affording additional methods of resolving conflict and aligning expectations of behavior at sea.