The National Interest and the Law of the Sea
The majority view of the SFRC and the opinion of every major ocean constituency group is that joining the convention is in America’s foreign policy interests. Debating the merits of internationalism versus unilateralism is a great U.S. tradition, but the irony is that the convention actually allows for an expansion of U.S. sovereignty: freedom of movement for a powerful navy; a legal tool for U.S. forces to combat scourges at sea, such as piracy, drug trafficking, and human smuggling; and a process for extending U.S. jurisdiction over a vast amount of ocean space equal to half the size of the Louisiana Purchase.
On balance, the arguments in favor of the convention far outweigh those opposed, which is the reason the convention has attracted such a diverse and bipartisan constituency. As presidents Clinton and George W. Bush forcefully argued in their written communications with the Senate (Appendix II), objections to the 1982 convention were substantively addressed in the 1994 agreement on implementation. Continuing to treat most parts of the convention as customary international law, as the United States does now, literally leaves it without a seat at the table in important decision-making bodies established by the convention, such as the Commission on the Limits of the Continental Shelf (CLCS); weakens the hand the United States can play in negotiations over critical maritime issues, such as rights in the opening of the Arctic Ocean; and directly undercuts U.S. ability to respond to emerging challenges, such as increasing piracy in the Indian Ocean. Joining or not joining the convention is more than an academic debate. There are tangible costs that grow by the day if the United States remains outside the convention.
It is true that Articles 194 and Part XV, section 5 require states to take “all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source” and “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from” the land and atmosphere under their jurisdiction. Convention provisions also call for states to reduce pollution by “the best practicable means at their disposal and in accordance with their capabilities” and to “endeavor to establish global and regional rules” to prevent and control pollution. The majority opinion holds that these provisions of the convention only bind the United States to act in accordance with its own laws or appropriately ratified international agreements and cannot be used as a “back door” to compel enforcement of international agreements the Senate has not ratified.
MYTH: Dispute resolution mechanisms of the convention are binding on the United States.
This assertion is undeniable. The United States will, by declaration as detailed in the draft Senate Resolution of Advice and Consent, choose arbitration or special arbitration as the method applicable for most categories of disputes. That is consistent with many other international agreements, including the 1995 Agreement for the Implementation of Provisions of the Law of the Sea for the Conservation of Fish Stocks, which the United States joined in 1996. The use of such mechanisms is not considered a surrender of sovereignty by the majority. Some disputes specific to the resources of the seabed beyond national jurisdiction will be subject to resolution in the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea. The jurisdiction of this chamber, by definition, falls outside areas of sovereign control. Finally, by declaration as detailed in the draft Senate Resolution of Advice and Consent, the United States will not accept any mandatory resolution mechanism for disputes concerning military activities, including military activities by government vessels and aircraft engaged in noncommercial service. The sovereign immunity of U.S. vessels and aircraft on government service will be protected by the convention.
Article 316 of the convention has always required that most amendments be specifically ratified by a state before binding that state. The only exceptions to this requirement are for amendments to the Statute of the International Tribunal of the Law of the Sea, Annex VI, and for amendments relating to provisions on seabed mining. Amendments to Annex VI can only be adopted “without objection” per Article 313 or by consensus. In either case, the United States can block passage if necessary to obtain the advice and con- sent of the Senate. President Reagan’s specific objection regarding amendments to seabed-mining provisions was remedied by the interaction of the 1994 agreement and the convention. Convention Article 161, paragraph 8(d) requires consensus of the ISA council to adopt amendments to Part XI, which contains the seabed-mining provisions. Section 3, paragraph 15(a) of the annex to the 1994 agree- ment provides the United States a permanent seat on the council by virtue of being the largest economy on the date of entry into force of the convention. Together these sections effectively give the United States a “permanent veto” over binding amendments to the seabed provisions of the convention. Similar to concerns regarding distribu- tion of benefits to national liberation movements, the United States must join the convention and claim a seat on the ISA to enjoy these protections against unfavorable amendments. Failure to join the convention and participate in the ISA risks “poisoning” the conven- tion to U.S. accession by the addition of unacceptable amendments.
A less prevalent but important minority opinion related to national security holds that the convention was developed with the participation of national liberation movements and these movements are allowed to participate as observers in the International Seabed Authority. Additionally, provisions of the convention that allow the distribution of ISA revenue to “peoples who have not attained full independence or other self-governing status” could be used to fund national liberation movements. President Reagan cited such provisions as a specific reason for rejecting the convention, since they allowed the possibility of channeling funds to groups the United States identified as terrorist organizations. While it is true that Article 156 of the convention allowed national liberation movements to sign the Final Act of the Third Conference on the Law of Sea and to participate as observers at the ISA, this observer status conveys no authority or voting rights and is equivalent to the status such movements are already granted in the UN General Assembly. It is also true that the ISA could possibly decide to distribute economic benefits to such movements if revenue becomes available in the future. The U.S. safeguard against such transfers becomes operative through the interaction of the convention and the 1994 agreement. Convention Article 161, paragraph 8(d) requires consensus of the ISA council to distribute economic benefits, pursuant to Article 162. Section 3, paragraph 15(a) of the annex to the 1994 agreement provides the United States a permanent seat on the council by virtue of being the largest economy on the date of entry into force of the convention. Together these sections effectively give the United States a “permanent veto” over distribution of economic benefits, hence preventing funds from being channeled to potential terrorist groups or other organizations likely to act counter to U.S. national security interests. Notably, the United States is the only nation with access to such a “permanent veto,” which is only available upon joining the convention. Accordingly, President Reagan’s concern regarding potential distribution of funds contrary to national security interests remains valid until the United States joins the convention.
U.S. Technological Advantage. It is true that the 1982 form of the convention mandated private technology transfer detrimental to U.S. national security and economic interests. That was one of the factors specifically cited when President Reagan rejected the convention. Article 144 of the convention does encourage technology transfer, calls for parties to “cooperate in promoting the transfer of technology and scientific knowledge,” and remains in force following the adoption of the 1994 agreement but does not mandate technology transfer. Such transfer, mandated by Annex III Article 5 of the convention, was eliminated by section 5 of the annex to the 1994 agreement. Additional protection against national security damage through technology transfer is provided by Article 302 of the convention: “[N]othing in this Convention shall be deemed to require a State Party, in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.”
The Proliferation Security Initiative. Similar to concerns related to intelligence activities, the effect of convention accession on the PSI is best addressed by those executive branch departments responsible for its creation and execution. Ambassador John R. Bolton, undersecretary of state for arms control and international security affairs during the creation of the PSI, has stated: “I don’t think that if the Senate were to ratify the Law of the Sea Treaty and the president were to make the treaty, that it would have any negative impact whatsoever on PSI.”35
The vice chief of naval operations has provided testimony that indicates joining the convention is necessary for, not harmful to, further PSI success: “[O]ur failure to be a Party to the Law of the Sea Convention is limiting further expansion of PSI. Critically important democratic Pacific countries have indicated a desire to support our counter-proliferation efforts, but they tell us that so long as we are not a Party to the Law of the Sea Convention, they will not be able . . . to endorse PSI.”36Statement of Admiral Patrick M. Walsh: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (4 quotes) ]"
Why are the provisions and protections of the convention vital to implementing U.S. national defense and maritime strategies? Why now? All six core capabilities of U.S. maritime forces are predicated upon legally certain freedom of navigation and overflight, as defined by the United States and codified in the convention. Joining the convention supports the strategic and operational mobility of American air, surface, and submarine forces. It provides legal guarantees for those forces to transit the high seas, exclusive economic zones, international straits, and archipelagic sea routes during times of crisis. It supports the freedom of those forces to legally conduct military survey, reconnaissance, and intelligence gathering under the terms and conditions the United States prefers. It allows the high-seas interdiction of stateless vessels and illegal activities under frameworks such as the Proliferation Security Initiative, using the protocols the United States carefully crafted to conform to the convention. Most recently, this year articles 100 and 105 of the convention have been applied as the basis of an agreement with Kenya to prosecute Somali pirates apprehended in the Indian Ocean.
Implementing the maritime and national security strategies in the current geopolitical environment requires that U.S. armed forces be provided not only with the convention’s rights, freedoms, and protections necessary to facilitate military operations but also with the legal legitimacy necessary to build partnerships, trust, and confidence with nations around the globe. Currently, American armed forces are ham- strung when the United States publicly solicits other nations to join it in enforcing the rule of law, while at the same time refuses to join the international legal frameworks necessary to establish such rule. The U.S. failure to join the convention has directly prevented expansion of the PSI with some critically important Pacific countries. Although these countries are supportive of U.S. counterproliferation efforts, they indicate that U.S. refusal to join the convention has eroded their confidence that the United States will abide by international law when conducting PSI interdiction activities. Remaining outside the convention risks further damaging American efforts to develop cooperative maritime partnerships, such as PSI, and undermining implementation of U.S. security strategies that require the confidence and trust of other nations.