The United States, the Law of the Sea Convention, and Freedom of Navigation
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The new institutions created by the Law of the Sea Conven- tion could at times decide matters affecting high seas freedoms, and the United States could contribute to such decisions if it participated as a member of these institutions. For example, could the International Seabed Authority promulgate mining-related environmental regulations restricting the scope of permitted activities at deep seabed vents where living organisms, as well as polymetallic sulfides, are found? U.S. participation in the work of the Authority could help to ensure that non-mining activities on the deep seabed, such as bioprospecting for living organisms at deep seabed vents (a part of the multi-billion dollar marine biotech business), continue to be regarded as high seas freedoms.65 U.S. interests in high seas freedoms also provide one impetus for U.S. participation in the work of the Conti- nental Shelf Commission, another institution created by the Convention. Overly expansive coastal state assertions of continental shelves beyond 200 miles from baselines would reduce the area of the oceans in which rights and freedoms are subject to the fewest restrictions.66 The United States could most effectively counter such assertions by participating as a member of this Commission. These participation or process concerns are illustrations of the general claim that accession to the Law of the Sea Convention is important to U.S. leadership on oceans issues.
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The work of formal international organizations, as well as interstate treaty negotiating conferences, may shape U.S. attitudes and actions. This is true not only of organizations in which the United States actively participates as a member, but also of organizations in which the United States is not a member. For example, the International Seabed Authority, headquartered in Kingston, Jamaica, is fully operational. It has received plans of work for deep seabed exploration from registered investors, has developed deep-seabed-mining regulations, and is currently considering an application for mining operations.64 These develop- ments, as well as the negotiating histories and texts of the Convention and the Part XI Agreement, limit the United States' ability credibly to assert that seabed mining beyond the limits of national jurisdiction is a high seas freedom, akin to the freedom of navigation. Legally and practically, opponents of the post- 1994 international seabed mining regime have simply lost the debate. The rest of the world-developed and developing states, market-oriented and non-market-oriented states-has accepted the revised mining regime. Any unilateral effort by a U.S. company to mine the seabed beyond the limits of national jurisdiction would almost certainly face opposition from the rest of the world, and the U.S. company's mining claims would be insecure.
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The United States might react to these coastal state navigational restrictions in four possible ways.32 First, it could acquiesce in them, a reaction that would significantly restrict navigational freedoms important to the United States. Second, the United States could continue to assert, via diplomatic channels, a customary international law right to navigation, backing up its assertions with naval exercises. Although the United States has been following this practice since 1979 under its Freedom of Navigation Program, this option is expensive. It is expensive in terms of dollars, potential confrontations, and prejudice to other U.S. interests in the coastal state.33 Furthermore, this option may not contribute to a stable legal regime, since some U.S. claims under customary international law could compete with coastal state assertions of different emerging rules of customary international law. Third, the United States could negotiate bilateral treaties to preserve U.S. navigational rights in other states' coastal zones. This option is also expensive. Small states, not interested in sailing their vessels or conducting military exercises in U.S. waters, would expect other new military, economic, or political concessions in exchange for allowing the United States to conduct military exercises or navigate in their coastal zones. Finally, the United States could accept the multilateral Law of the Sea Convention. With respect to navigation rights, this treaty provides a stable legal base from which to promote freedom of navigation rules. Its written and hard-to- change rules, though not always highly determinate, at least narrow the range of disputes over permissible and impermissible restrictions on navigation. Convention proponents have strong consequentialist arguments to support the position that the Con- vention's freedom of navigation provisions benefit the United States.
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Evaluating the pros and cons of U.S. accession to the Law of the Sea Convention is complicated, because, unlike multilateral treaties that address a single, relatively narrow topic, the Convention concerns a wide range of issues. Nevertheless, many provisions of the Convention appear to favor U.S. businesses and the U.S. military, segments of society that the Bush Administration supports. For example, the U.S. oil industry, which possesses the technology to drill at great depths under the ocean, favors U.S. accession.21 The Convention establishes a mechanism for setting the outer limits of the continental shelf beyond 200 miles from baselines, which would result in oil companies gaining the security that comes with defined limits for drilling claims.22 Most significantly, the Convention provides, in the U.S. view, minimal restrictions on the passage of military vessels through straits and other coastal zones and permits such vessels to conduct military surveys and exercises in the 200-mile exclusive economic zones (EEZs) of other states.23 In 2004, General Richard Myers, Chairman of the Joint Chiefs of Staff, labeled U.S. accession to the Convention a "top national security priority," reflecting the view that the Convention's provisions relating to navigation and military exercises are essential to U.S. security.24 In addition, the commercial shipping industry, as well as the U.S. military, benefits from the Convention's freedom of navigation provisions.
Convention proponents also maintain that "undesirable" features of the Convention can be and have been minimized. The Reagan Administration refused to sign the Convention in the early 1980s, arguing that its deep-seabed-mining regime was excessively anti-competitive and did not give the United States decision-making authority commensurate with its power.25 The changes to Part XI made by the 1994 Agreement satisfied President Reagan's objections to the Convention's original regime.26 Another U.S. concern-that U.S. military activities might be subject to review by an international tribunal under the Convention's dispute settlement procedures-could be eliminated by opting for a Convention-authorized jurisdictional exception.27 According to Convention proponents, the policy benefits of U.S. accession far outweigh any potential negative consequences.