Strange Bedfellows: The Law of the Sea and Its Stakeholders
JOHN NORTON MOORE: Now, this convention is one of the most important multilateral conventions in history. Today it is enforced for 154 countries plus the European Union. It is enforced for all permanent members of the Security Council with the exception of the United States. The U.S. was the most important and most influential nation in the world in the negotiations. And it ultimately achieved every single one of its negotiating objectives in this treaty. I wish we could say that in all of the others.
Ultimately, of course, the last ones were achieved in the renegotiation in 1994 on Part 11, seabed mining, that enabled us to achieve, and more, all of the conditions set by Ronald Reagan. Now, this was not simply an accident. The United States was extremely well organized for this negotiation. We had an 18-agency interagency task force. We had 100-member advisory board that included virtually every affected industry group and environmental group in the United States. And it is not surprising that today every single president after this has been adopted, of both parties, certainly all of our government agencies, particularly our military and our chiefs of staff and our Coast Guard, all industry groups, environmental groups and basically every affected interest group in the United States is a strong supporter of moving forward.
Now, what are some of the things that we achieved? The United States achieved an expansion of resource jurisdiction that is far greater than what we achieved in the acquisition of Alaska and the Louisiana Purchase combined, an area of resource jurisdiction larger than the entire continental United States. The United States achieved every single one of its national security objectives, including particularly transit passage through, over and under straits used for international navigation.
We achieved assured access to seabed minerals with four sites set aside for the United States with an aggregate resource value of over $1 trillion. The United States basically also received a stable rule of law and stable expectations for oil and gas and fisheries and other economic development in the oceans. And even precedentially, we achieved a breakthrough. The United States, on the counsel of the authority, was the only nation in the world given a permanent seat on the council and a veto on the council
MOORE: Now, let's look for a moment at some of the cost of non-adherence. Non-adherence on a treaty like that, by the way, rather extraordinary. Now, let's look at the cost of non-adherence. The United States has gone from THE leader in the world in oceans policy -- and make no mistake, we were the leader throughout this process -- to simply observer status. The United States has no member on the Continental Shelf Commission making the rules and regulations for the shelf. Not surprisingly, Russia chose basically to go to the commission when the United States was not on it. No wonder it was the first one to go to the commission in its Arctic claim.
The United States does not participate in the international authority in making the rules and regulations for seabed mining. And if we don't join soon, we are at risk in losing all four of our mine sites, again, with the aggregate value of about 1 trillion (dollars) in cooper, nickel, cobalt and manganese. We've already lost one out of the four sites. Russia is out there with a site. India is with a site. China is with a site. Others are with a site. We're about ready to throw them away, because the United States is not adhering to the convention.
In addition to that, the United States is achieving a delay in development on the Continental Shelf oil and gas, because we have no stable legal regime until we join and demarcate the outer area of the boundary. The United States is harmed in its PSI initiative when states such as Malaysia refuse to join with us, because they say we're not a member. The United States is harmed potentially in relation to what we negotiated in losing it simply as a result of others being able to amend the treaty. And if we are not a party, their amendments will then become binding on the treaty on everyone in the world. Whereas, rather interestingly, if we are a party, they cannot amend for us in a way that will be binding on the United States, and the original treated we negotiated would be the one that would be applying to us.
In addition to that, we have difficulties with countries around the world that seek to harm United States' interests. Iran today, for example, says the U.S. has no right to go through Strait of Tehran in transit passage mode because we are, quote, "not a party to the Law of the Sea Convention."
MOORE: Second point -- they argue somehow this will be counter to the security and national military interests of the United States of America. Extraordinary since we won absolutely everything that the chiefs sought. They were a very important part of the effort. I traveled around the world with a representative of the Joint Chiefs and DOD in all of the negotiations. We won everything that the chiefs wanted. And you might note that the strongest proponents of this treaty from day one have been the United States military. So a group of non-law of the sea experts, non-international law experts, who do not know the issues, believe that somehow they know better than the chiefs of the United States who have signed a letter that I have in the back of the room called a rare 24-star letter. It's not just from the chairman of the chiefs. Every single one of the chiefs signed it and sent it to the Senate saying this is what we need.
MOORE: Now, on those questions, first, on the issue of, is there any interference with intelligence. Point number one -- the intelligence community fully participated in the interagency task force. This is not some little operation run in a separate office of the State Department. This is run out of the NSC. There is nothing in the intelligence community that they wanted they did not get in the Law of the Sea Convention. And there are some sensitive things in there in fact that the United States got for the intelligence community.
To my knowledge, there is not a single issue that is a problem in intelligence that I have seen. There was a hearing held from the Intelligence Committee. And the CIA and the Defense Department and all of those involved in this testified there was no issue. This is an absolutely false issue being raised against the convention.
MOORE: The second point in relations to, are we going to be inhibited in something like the Cuban Missile Crisis, for example. And this is, I think, also something that has some misperceptions about the treaty. This is basically a treaty for peacetime settings. This does not in any way, shape or form interfere with the legal rights of the United States for defense, individual or collective defense, or any of our fundamental kinds of foreign policy issues that we're engaged in. There is nothing in the treaty that has any kind of inhibition that would be a problem for the United States in the Cuban Missile Crisis or in any of the other national security and defense issues that this country has been involved in.
In fact, the chiefs have testified over and over again just to the contrary of that. That is that this helps United States mobility. It helps us move around the world's oceans. And for those who have noticed the latest strategy, Naval strategy of the United States, it's called a 1,000-ship Navy. It is a matter of cooperation with countries all over the world in dealing with terrorism and piracy and all the other issues. We are severely harmed if we are not part of this treaty and are empowered basically to deal with that issue.
MOORE: Let me just turn it around as well. I find rather interesting the notion that the argument is made that, well, it's all customary international law. Why do you need to sign? If it is already customary international law and binding on the United States, why shouldn't we go ahead and sign? What's the harm? In fact, one of the greatest errors in the series of arguments is even if every one of these arguments were true, which take one little, you know, bits and pieces of this thing and make an argument against it, even if they were all true, they miss the aggregate of the overall benefit for the United States of America. And by staying out, nothing that they are concerned about will stop. We just simply will be non-empowered.
For example, the International Seabed Authority is not going to go away. It's out there. If we've turned it all over to the United Nations so far, which is nonsense, it's already done. It will not go away. There are 153 countries and the European Union. So these are really nonsense arguments that are being made.
MOORE: The third question is, well, why do we really need to have adhered to the convention? I hope I have answered that in giving you some of the issues already. Let me just say, if you really believe that you prefer the United States not to be THE oceans leader in the world but simply to be an observer while the rest of the world changes the law and things, then you should be for this opposition. Because that's exactly what is happening.
We are being harmed and being harmed in very serious ways. And one of those that I've been particularly paying attention to economically that has not gotten much attention is literally we have remaining three huge mine sites in the deep ocean floor. A mine site is approximately the size of the state of Rhode Island, each one somewhere around $1 trillion in aggregate value of hard minerals for the United States. We've lost one out of the four of those already because of the delay. The companies just got tired of this and basically sold it for nothing. And if the United States doesn't adhere in a reasonable period of time, what's going to happen is those sites will be turned over to the Chinese and the Russians and the others. And this will be one of the greatest travesties, I think, in the history of U.S. foreign policy.
MOORE: First, this is one of the few treaties that we've negotiated in which we specifically put in an exemption for all military activities with respect to submission to dispute settlement. You and I indeed are on record together as sending a letter to the Senate Foreign Relations Committee basically indicating that all military activities have been withdrawn from dispute settlement. And if that were not enough, the Senate resolution of advice and consent that's proposed basically indicates that any determination of whether that is true or not is in fact left to the United States to determine. Let me also suggest that we're never, in the real world, going always to be able to control every arbitrator. There are going to be bad arbitrations. Unfortunately, all the judges are not Judge Steve Schwable (ph). And there are others that don't understand international law. But in the aggregate, I believe it is strongly in the interest of the United States to continue to support compulsory dispute settlement. There's nothing un-American about this. Indeed, George Washington indicated that the single most important achievement of his administration was the arbitration provisions contained in the Jay Treaty. In addition to that, the United States, at present, is a party to some 85 treaties with arbitration provisions, some of which are extremely important, and some 16 multilateral conventions that submit to a variety of different kinds of tribunals. So this is certainly nothing new. I think the simple answer is, one, for the tribunals that we're involved in, we will have the ability to select some of those judges, of course, in the way they're selected -- two out of the five in the general arbitration -- so we don't know what those other parties may have accepted. The arbitration only binding on them, not on other parties. So we're the ones that participate when we enter into arbitration in selecting the judges. A military exclusion would be applicable, so that's not an issue whatsoever in the case. And finally, if they clearly did something that is ultra vires, as I would regard this as ultra vires, it clearly is simply not binding on the United States under normal rules of international law. That decisions that go beyond the jurisdiction of the tribunal are simply void.
WATKINS: I'll just pick up on one that's very special to me, and that's on intelligence. There was a Senate Select Committee hearing on this intelligence issue on law of the sea in 2004. And witnesses came from the CIA, from Defense, and they all confirmed that the U.S. intelligence plus submarine activities would not be impaired by this convention.
And so, again, the hearings have gone into detail across some of the questions you raised and the myths that are thrown out there by the opponents that somehow this is going to do great damage. And you know, when our P-3 was very closely monitored by the People's Republic of China a few years ago, one of the things we were accused of is getting intelligence over international waters with our air phones headed towards China mainland. And we were sitting there as non-members of the Law of the Sea Convention and would have weak grounds on which to base -- we would have good grounds on which to base it, but whether they would be listened to was questionable.
So again, intelligence is not only gathering information in national waters but also international. So the whole issue of intelligence gathering is another one of these myths that's thrown out there that we're going to lose our ability to do what we have to do to be number one in our national security efforts through good intelligence gathering. So I think that that is, again, one thing that's thrown up there in the air that has no basis whatsoever.