The Unvarnished Truth: The Debate on the Law of the Sea Convention
[ Page 120 ]
[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).15
But our navigational freedoms are indeed threatened. There are currently more than a hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights as reflected in the Convention. But these operations entail a certain amount of risk—for example, 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 and affording additional methods of resolving conflict.
[ Page 120-121 ]
[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.16 This is an irrelevant canard. It is true that the Convention was drafted before the war on terror. However, it enhances rather than undermines our ability to wage the war on terror. The robust maritime naval and air mobility assured by the Convention is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for U.S. forces, weapons, and materiel to get to the fight without hindrance—and ensures that they will not be hindered in the future.
Thus, the Convention supports the war on terror 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 as a matter of approval from nations along the routes. A stable legal regime for the world’s oceans will support global mobility for our armed forces.
[ Page 121 ]
[MYTH]: Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as antisubmarine warfare technology).17 In fact, no technology transfers are required by the Convention. Mandatory technology transfers were eliminated by section 5 of the annex to the 1994 Agreement amending Part XI of the Convention. Further, Article 302 of the Convention explicitly provides that nothing in the Convention requires a party to release information the disclosure of which is contrary to the essential interests of its security.
[ Page 121 ]
[MYTH]: As a nonparty, the United States is allowed to search any ship that enters our exclusive economic zone to determine whether it could harm the United States or pollute the marine environment. Under the Convention, the U.S. Coast Guard or others would not be able to search any ship until the United Nations is notified and approves the right to search the ship.18
This also is not correct. Under applicable treaty law—the 1958 conventions on the law of the sea—as well as customary international law, no nation has the right arbitrarily to search any ship that enters its exclusive economic zone (EEZ) to determine whether it could harm that nation or pollute its marine environment. Nor would the United States want countries to have such a blanket “right,” because it would fundamentally undermine freedom of navigation, which benefits the United States more than any other nation. Thus, the descriptions of both the status quo and the Convention’s provisions are incorrect. It makes no change in our existing ability or authority to search ships entering the American EEZ with regard to security or protection of the environment. One final and very important point is that under the Convention the UN has absolutely no role in U.S. military operations, including a decision as to when and where a foreign ship may be boarded.
[ Page 121-122 ]
[MYTH]: Other parties will reject the U.S. “military activities” declaration as a reservation.19 Another false assertion—the American declaration is consistent with the Convention and is not a reservation (that is, in international legal usage, “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”)20 It is an option explicitly provided by article 298 of the Convention. Parties to the Convention that have already made such declarations exercising this option include the United Kingdom, Russia, France, Canada, Mexico, Argentina, Portugal, Denmark, Ukraine, Norway, and China.
[ Page 122 ]
[MYTH]: The 1994 Agreement does not even pretend to amend the Convention; it merely establishes controlling interpretive provisions.21 This is nonsensical. The Convention could only have been formally “amended” if it had already entered into force. The 1994 Agreement was negotiated separately to ensure that the Convention did not enter into force with Part XI in its flawed state. The 1994 Agreement made explicit, legally binding changes to the Convention and has the same legal effect as if it were an amendment to the instrument itself.22
A letter signed by all living former legal advisers to the U.S. Department of State, representing both Republican and Democratic administrations, confirms the legally binding nature of the changes to the Convention effected by the 1994 Agreement. Their letter states, “The Reagan Administration’s objection to the LOS Convention, as expressed in 1982 and 1983, was limited to the deep seabed mining regime. The 1994 Implementing Agreement that revised this regime, in our opinion, satisfactorily resolved that objection and has binding legal effect in its modification of the LOS Convention.”23
[ Page 122 ]
[MYTH]: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining.24 Not true—in fact, each objection has been addressed. Among other things, the 1994 Agreement:
- Provides for access by American industry to deep seabed minerals on the basis of nondiscriminatory and reasonable terms and conditions.25
- Overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires two-thirds majorities that will enable the United States to protect its interests by putting together small blocking minorities.26
- Restructures the regime to comport with free market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.27