Consensus of experts advocate for U.S. ratification of UNCLOS
A broad, bipartisan consensus supports U.S. ratification of the Law of the Sea Convention, and has consistently argued on its behalf for the past 30 years. This coalition includes high-level officials from the past six administrations and backing by all Presidents since Clinton. It also includes a range of senior defense officials including every Chief of Naval Operations. The Convention has also been strongly supported by every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies, and representatives of the oil and gas, shipping, and telecommunications industries testified in favor of the Convention before the Senate Foreign Relations Committee.
Quicktabs: Arguments
In order to have a legitimate say in the dividing of the newly available Arctic resources, one approach is that the United States should ratify the United Nations Convention on the Law of the Sea as soon as possible.56 Almost all opposition to the convention can be attributed to old-guard politics and irrational distrust of international organizations like the United Nations. According to J. D. Watkins and L. E. Panetta, “The Law of the Sea Treaty has a diverse and bipartisan group of experienced national backers, including military leaders, environmentalists, ocean industries, think tanks and political figures who recognize and support the pressing need to sign this treaty.”57 By ratifying the treaty, the United States would not only be able to further its own goals in relation to the Arctic Scramble, but also take on a leadership role in international negotiations. Failure to do so may result in a loss of claimable Arctic territory and the resultant strategic resources.
Moreover, the Convention had the backing of the kind of coalition that normally augurs success in Washington. There was certainly no doubt about the military’s support. A so-called “24-star” letter from the Joint Chiefs of Staff called on the Senate to approve the Convention. In addition, the Convention had the support of many high-level officials in the civilian agencies. Secretary of Homeland Security Michael Chertoff, Secretary of the Interior Dirk Kempthorne, and Secretary of Commerce Carlos Gutierrez all wrote strong letters urging the Senate to act. And, as a demonstration of high-level Administration commitment, both Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England testified in support of the Convention at a Senate hearing in September 2007. Moreover, several Reagan-era officials, including former Secretary of State George Shultz and former Ambassador Ken Adelman, argued publicly that President Reagan’s problems with the Convention had been fixed and that it was time for the United States to join. Finally, the Convention was also strongly supported by every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies, and representatives of the oil and gas, shipping, and telecommunications industries testified in favor of the Convention before the Senate Foreign Relations Committee.
Since at least 1994, a strong base of support for accession to the Law of the Sea Convention in the United States has existed in the federal government, industry and civil society. It is likely that no other treaty has ever been so widely supported and yet failed to be put to a vote in the Senate for such a long duration. The Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations all support the treaty.[4] Additionally, both the National Commission on Oceans Policy and the Pew Oceans Commission in their recent reports strongly urged immediate action by the Senate and accession to the Convention.
Further reflecting broad bipartisan support, in a highly unusual statement in the history of U.S. treaty ratification practice, all living former Legal Advisers of the U.S. Department of State issued a joint letter on April l7, 2004 to Senators William H. Frist (then Majority Leader), Richard G. Lugar (then Chairman, Committee on Foreign Relations), and John W. Warner and Carl Levin (respectively, then Chairman and Ranking Member, Committee on Armed Services.[5] In that letter, the eight former Legal Advisers wrote:
We are unanimous in our view that it is in the best interests of the United States that the Senate, at its earliest opportunity, grant its advice and consent to United States accession to the 1982 United Nations Convention on the Law of the Sea and to United States ratification of the 1994 Implementing Agreement that modifies Part XI of the LOS Convention.
On October 7, 1994, President Clinton submitted UNCLOS and the IA to the Senate for advice and consent to accession and ratification, re- spectively. Despite widespread bi-partisan support, the concurrence of all the Federal agencies and departments with ocean interests, and support from the U.S. maritime industries (oil and gas, shipping, telecommunications, marine science, fishing) and environmental groups, the Convention and its Implementing Agreement have languished in the Senate for the past 20 years.
The United Nations has taken a lead role in managing the world's oceans. In 1994, it produced the UN Convention on the Law of the Sea (UNCLOS), which defines maritime zones and serves as a "constitution for the sea." To date, 163 countries have joined in the Convention, with the United States being the only major maritime country that has not ratified the convention. According to the Foreign Policy Association's National Opinion Ballot Report, a large majority of respondents (79%) believe that the U.S. should end its holdout and officially ratify UNCLOS. Such a response may reflect a larger trend on the ballot, as 57% of balloters believe that issues such as fisheries management are best handled by the UN instead of local or regional governments.
The respondents' preference for an international approach extends outside the UN framework. As the global community debates how to handle the Arctic, which is now beginning to yield more mineral resources as the polar ice caps continue to melt, NOBR participants indicate that they would favor an international treaty to govern the use of Arctic resources. Ninety-five percent of respondents agree that the U.S. and other countries with sovereignty in the Arctic should develop an agreement "similar to the Antarctic Treaty," which bans mineral mining and reserves the region for peaceful uses such as research and tourism.
Support for ratification has been consistently bipartisan. Proponents include the current president, as well as his predecessors, presidents Bush and Clinton; the current and former secretaries of state, including Condoleezza Rice, Colin Powell, and Madeleine Albright; the current and former chairmen of the Joint Chiefs of Staff; the current and former commandants of the Coast Guard; major environmental groups, and many others. A relatively small number of senators have held the treaty hostage.78 Buoyed by ideological opposition to the United Nations, a small minority of opponents have stopped it from coming to a vote, even though it will advance U.S. interests in the Arctic and around the world. These senators argue that the United States does not need to be party to a treaty to enforce the rule of law. This rationale resonates with many Americans and is popular with the Tea Party but, in this case, to the great detriment of national security.
I hope the Committee will also bear in mind that the Law of the Sea negotiations were a long-term bipartisan effort to further American interests that engaged high level attention in successive Administrations and distinguished members of both Houses of Congress. President Nixon had the vision to launch the negotiations and establish our basic long-term strategy and objectives. President Ford solidified important trends in the negotiations by endorsing fisheries legislation modeled on the emerging texts of the Convention. President Carter attempted to induce the developing countries to take a more realistic approach to deep seabed mining by endorsing unilateral legislation on the subject. President Reagan determined both to insist that our problems with the deep seabed mining regime be resolved and to embrace the provisions of the Convention regarding traditional uses of the oceans as the basis of U.S. policy. President George H.W. Bush seized the right moment to launch informal negotiations designed to resolve the problems identified by President Reagan. President Clinton’s Administration carried that effort through to a successful conclusion. And now the Administration of President George W. Bush has expressed its support for Senate approval of the Convention and the 1994 Implementing Agreement.
The 1982 LOS Convention sets out a carefully-drafted balance between safety, security and stewardship in the maritime domain. It is not a perfect treaty (is there such a thing?), but on balance, it is a very good treaty for the United States. The audience need not take my word for that. The first recommendation to come out of the bipartisan blue ribbon U.S. Commission on Ocean Policy, chaired by former chief of naval operations and secretary of energy James Watkins, was a recommendation that the United States accede to the 1982 Convention.13 Similarly, former secretary of defense and CIA director Leon Panetta supported accession in his capacity as chairman of the prestigious Pew Ocean Commission.14 Following a decade-long debate over the Convention's strengths and weaknesses, Canada-our Arctic neighbor and fellow member of NATO and the Arctic Council-ratified the Convention in 2003.15
Despite opposition by a few members of Congress, UNCLOS ratification has widespread support in the military, diplomatic and intelligence communities. The Departments of Defense, State and National Intelligence have consistently advocated that the Senate should ratify the treaty.65 In fact, all of the members of the Joint Chiefs of Staff have written the Senate letters seeking the Senate’s advice and consent.66 Moreover, in his last NSPD before leaving office, President George W. Bush explicitly sought UNCLOS’s ratification.67 At the end of 2007, the Senate Committee on Foreign Relations voted to recommend ratification.68 The U.S. Senate’s vote is pending.
In support of multilateral Arctic partnerships are a number of broad-based and disparate organizations and policies nonetheless unified in support of the issue, and additional support comes from consequential benefits inherent in UNCLOS accession. Overarching is National Security Presidential Directive (NSPD) 66, “Arctic Region Policy,” released in 2009. Among the directive’s policy statements is a robust admonishment for accession to UNCLOS:
Joining [the UNCLOS treaty] will serve the national security interests . . . secure U.S. sovereign rights over extensive maritime areas . . . promote U.S. interests in the environmental health of the oceans . . . give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted . . . [and] achieve international recognition and legal certainty for our extended continental shelf.19
Furthermore, NSPD 66 persuasively promotes multinational partnership in the Arctic to address the myriad issues faced in the region.20 Likewise, the Department of Defense, as articulated in its 2010 Quadrennial Defense Review, strongly advocates accession to UNCLOS in order “to support cooperative engagement.”21 Also among the tenacious supporters of accession are the U.S. Navy, whose leadership stresses that UNCLOS will protect patrol rights in the Arctic, and a number of environmental groups who want to advocate on behalf of Arctic fauna and flora.22 In addition, the oil industry lobby representing Chevron, ExxonMobil, and ConocoPhillips asserts that oil and gas exploration cannot reasonably occur without the legal stability afforded in UNCLOS.23 In a consequential benefit of accession, the extended U.S. continental shelf claims could add 100,000 square miles of undersea territory in the Gulf of Mexico and on the East Coast plus another 200,000 square miles in the Arctic.24U.S. Resistance to Sea Treaty Thaws — Neil King Jr. — Wall Street Journal — Sep 22, 2007 [ More ] Accession acts to strengthen and extend Arctic jurisdiction, open additional hydrocarbon and mineral resource opportunities, add to the stability of the international Arctic framework, and boost the legal apparatus for curtailing maritime trafficking and piracy.25 The benefits appear to outweigh the costs as the United States is increasingly moving to a position of strategic disadvantage in shaping Arctic region policy outcomes by failing to ratify UNCLOS.26Conley, Heather A. and Jamie Kraut. U.S. Strategic Interests in the Arctic: An Assessment of Current Challenges and New Opportunities for Cooperation . Center for Strategic and International Studies: Washington, D.C., April 27, 2010 (28p). [ More (5 quotes) ]
Pages
The Maritime Law Association of the United States, joined fully by the American Bar Association, emphatically urges the Biden Administration and the Senate to take immediate action to ratify both the Rotterdam Rules and UNCLOS and allow the U.S. to best address current and future global maritime issues.
[ More ]