Revision of Consensus of Experts Advocate for U.S. Ratification of UNCLOS from Mon, 02/17/2014 - 18:13
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
Both within Democratic and Republican presidential administrations, U.S. govern- ment officials, industry group representatives, and senior officers of the armed forces have forcefully and persuasively testified as to the merits of the LOS Convention for the United States.5 The Treaty is strongly in the American national interest: promoting the require- ments of a global security presence, providing a framework for preservation of maritime mobility and maneuverability, creating a system for facilitating transnational trade and promoting economic prosperity, and creating a regime of binding dispute resolution and conflict avoidance that is a cornerstone for building a stable legal order for the oceans. Indeed, a comprehensive case for U.S. accession already has been made most eloquently by Ambassador John Norton Moore and retired Rear Admiral William L. Schachte in a paper that has been widely distributed on Capitol Hill.6
Executives in the energy, telecommunications and shipping industries understand how the convention will make us more prosperous. Military commanders understand how the convention will make us more secure, and the Joint Chiefs of Staff strongly support the treaty. Some detractors of the treaty have unfairly (and inaccurately) suggested that our most senior admirals and generals support the Law of the Sea due to the persistence of a cadre of Navy lawyers. In fact, our military leaders are savvy, independent thinkers who are accustomed to gathering the facts and exercising decisive judgment. Moreover, Navy lawyers are foremost naval officers wearing the uniform and embedded into military units in peacetime and combat. Sharing two professions, the profession of arms and the profession of law, this is not a silkstocking club of suits, but advisers who train and deploy with the force, providing advice on the projection of sea power on the water and ashore.
The U.S. Commission on Ocean Policy has taken a strong interest in the international implications of ocean policy since the inception of our work. Our 16 Commissioners were appointed by the President - 12 from a list of nominees submitted by the leadership of Congress - and represent a broad spectrum of ocean interests. The Oceans Act of 2000 (P.L. 106-256) specifically charged our Commission with developing recommendations on a range of ocean issues, including recommendations for a national ocean policy that "...will preserve the role of the United States as a leader in ocean and coastal activities."
With this charge in mind, the Commission took up the issue of accession to the LOS Convention at an early stage. At its second meeting in November, 2001, the Commissioners heard testimony from Members of Congress, federal agencies, trade associations, conservation organizations, the scientific community and coastal states. We heard compelling testimony from many diverse perspectives - all in support of ratification of the LOS Convention. After reviewing these statements and related information, our Commissioners unanimously passed a resolution in support of United States accession to the LOS Convention. The fact that this resolution was our Commission's first policy pronouncement speaks to the real sense of urgency and importance attached to this issue by my colleagues on the Commission.
Rather than a "rush to judgment," it is hard to find any aspect of the Convention that has not been discussed and debated ad infinitum in the public media, in academic conferences and symposia, in legal and ocean policy literature, and in congressional hearings. It has been studied and restudied by each successive administration, and every government department and agency with a concern in the oceans supports accession. In March 2007, in testimony before the Subcommittee on Fisheries, Wildlife, and Oceans of the Natural Resources Committee of the House of Representatives, Admiral James D. Watkins and Leon E. Panetta, Co-chairmen of the Joint Ocean Commission Initiative, renewed their strong endorsement of the Convention, saying, among other things, that the failure of the United States to become a party to the Convention is "one of the most serious international ocean policy issues that remain unresolved for our nation.
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.26 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) ]
UNCLOS provides the overarching framework governing international ocean affairs. The Convention is one of the most wide-ranging, comprehensive international Conventions and, together with its associated agreements3, covers or touches on virtually all marine activities. UNCLOS has, moreover, achieved broad acceptance from the international community. At the time of writing the Convention boasted 164 parties, comprising 163 States plus the European Union. When it is recalled that there are 'only' 155 coastal States in the world, the near-comprehensive uptake of UNCLOS is underscored.
Indeed, despite being a non-party itself, the US nonetheless accepts that key aspects of UNCLOS, such as the maritime jurisdictional and boundary delimitation provisions, are declaratory of customary international law and conducts its policy accordingly.4 In terms of international law and international relations, US accession to the Convention would therefore consolidate and reinforce the oceans policy and practice pursued by successive administrations of both political persuasions in the US.
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.
The 1982 Convention on the Law of the Sea — the instrument that created the overarching governance framework for nearly three-quarters of the Earth’s surface and what lies above and beneath it — has been signed and ratified by 161 countries, but not by the United States. The convention and the 1994 agreement on its implementation have been in force for 18 years, yet the United States, a nation with over 12,000 miles of coastline and the dominant world maritime power by any measure, joins an embarrassing short list of holdouts that includes North Korea, Syria and Iran.
This is true despite the fact that a bipartisan coalition of American business, environmental and military leaders agree that it is in our national interests to formally become a state party to this lynchpin of ocean governance. Per our constitution, the Senate must give its “advice and consent” to treaties submitted by the president for its review. Of these currently in the queue, for national-security reasons, the Law of the Sea is one of the most urgent.
This is why the secretaries of Defense and State, the chairman of the Joint Chiefs of Staff, and the heads of the Navy, Coast Guard and Marine Corps all recently testified before the Senate Foreign Relations Committee that the U.S. should join. In fact, since 1994 – when President Clinton first submitted the treaty to the Senate for its consideration following the international community changing the document’s language to directly address President Ronald Reagan’s initial reservations – every president, every Marine Corps and Coast Guard commandant, and nearly all chiefs of naval operations have unequivocally supported it. Put simply, there is broad consensus from our nation’s military and political leadership that the United States should sign on.
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
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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.
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