The Law of the Sea Convention: The Case for Senate Action

It is a pleasure to return to the Brookings Institution today to open this Conference on the Law of the Sea. As Chairman and as a member of the Senate Foreign Relations Committee, I have followed developments related to the Law of the Sea for more than two decades. On February 25 of this year, almost ten years after the Convention was submitted to the Senate for advice and consent, the Foreign Relations Committee unanimously approved the resolution of ratification to the Convention, thereby placing it on the Senate Calendar.

The Law of the Sea Convention establishes a comprehensive set of rules governing the uses of the world’s oceans, including the airspace above and the seabed and subsoil below. It carefully balances the interests of states in controlling activities off their own coasts and the interests of all states in protecting the freedom to use the oceans without undue interference. Among the central issues addressed by the Convention are navigation and overflight of the oceans, exploitation and conservation of ocean resources, protection of the marine environment, and marine scientific research.

Admiral James Watkins, former Chief of Naval Operations and the Chairman of the U.S. Commission on Ocean Policy, has called the convention “the foundation of public order of the oceans.” As the world’s preeminent maritime power, the largest importer and exporter, the leader in the war on terrorism, and the owner of the largest Exclusive Economic Zone off our shores, the United States has more to gain than any other country from the establishment of order and predictability with respect to the oceans.

Senate passage of the Law of the Sea Convention should be straightforward. The Bush Administration has asked for ratification. In fact, the Law of the Sea was one of only five treaties that the Bush Administration placed in its “urgent” category on their most recent list of Treaty priorities submitted to the Foreign Relations Committee. Representatives from the Department of State, the Office of the Secretary of Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce Department have testified in support of the Convention at various Congressional hearings. Representatives from six Bush Administration Cabinet departments participated in the interagency group that helped write the resolution of advice and consent accompanying the treaty. And the U.S. Commission on Ocean Policy, appointed by President Bush, strongly endorsed U.S. accession to the Law of the Sea.

In the private sector, every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies that use underwater cables, support U.S. accession to the Law of the Sea and are lobbying in favor of it. The National Foreign Trade Council, representing hundreds of exporting companies, also supports ratification. Moreover, this is an issue on which industry and environmentalists agree. A long list of environmental and ocean groups have endorsed the treaty because it would protect and preserve the marine environment and establish a framework for further international action to combat pollution.

History of the Convention

The Law of the Sea Convention did not always enjoy such strong support. When it was first concluded in 1982, the Convention contained a seabed mining provision that clearly was not in the interest of the United States. President Reagan’s decision not to sign the treaty was the right decision at that time. He stated that “while most provisions of the draft convention are acceptable and consistent with U.S. interests, some major elements of the deep seabed mining regime are not acceptable.” President Reagan’s statement specified his particular objections to the deep seabed mining regime, which included lack of adequate U.S. representation in decision-making about deep seabed mining, requirements for industrialized states to transfer technology related to deep seabed mining, rules providing for artificial limits on production of deep seabed minerals, and rules providing for burdensome regulations and financial costs on private companies seeking to conduct deep seabed mining. Along with many industrialized nations, the United States insisted on a re-negotiation of this provision.

In a 1983 proclamation of United States ocean policy, President Reagan stated that, while the United States would not become party to the Convention, the United States accepted and would act in accordance with the provisions of the Convention except for those relating to deep seabed mining. Presidents Bush, Clinton, and Bush continued this policy.

In 1990, President George H.W. Bush initiated further negotiations to resolve U.S. objections to the deep seabed mining regime. These talks culminated in a 1994 agreement that comprehensively revised the regime and resolved each of the problems President Reagan identified in 1982.

In response to the current Bush Administration’s request for Senate approval of the Law of the Sea, the Senate Foreign Relations Committee took up the Convention under my chairmanship in October 2003. The Committee held two extensive public hearings on the Convention at which Administration and private witnesses testified. Between October and February, the SFRC held four briefings on Law of the Sea for Committee staff and the staff of all Committee members. Two of these briefings were headlined by an Administration interagency team. In February 2004, the Committee met to vote on the Law of the Sea. The resolution of ratification, which had been drafted with the Administration’s full participation, was approved 19-0.

During the four months between the first hearing on Law of the Sea and the Committee vote to report out the Convention, the Committee received just one inquiry voicing opposition to the measure, and that was from an individual representing himself. Staff offered to receive written testimony from this individual, but none was sent.

The Current Debate

Despite this seeming unanimity of informed opinion, Senate consideration of the treaty has been held up for more than two months by vague and unfounded concerns about the Convention’s effects. These concerns have been expressed primarily by those who oppose virtually any multi-lateral agreement. Many of the arguments they have made are patently untrue. Others are obsolete in that they attack the Convention as it existed in 1982—as if the re-negotiation of the Convention had never occurred.

For example, critics have contended that the Law of the Sea will give the United Nations control over oceans when the Convention provides no decision-making role for the U.N. They have said that the Convention contains production limits on seabed minerals, and mandatory technology transfers, both of which were eliminated in the 1994 renegotiation of the treaty. They have suggested that U.S. intelligence gathering will be hindered even though the Bush Administration and the U.S. military (which conducts all the intelligence operations in question) say that the Convention will have no effect on intelligence activities. They assert that the President’s Proliferation Security Initiative (PSI) which aims to impede shipments of weapons of mass destruction and related materials, will be hindered by the Convention, even though the Chairman of the Joint Chiefs of Staff and the Chief of Naval Operations say unequivocally that U.S. ratification of Law of the Sea would help the PSI.

In fact, most of the articles and statements opposing the Convention have avoided mentioning the military’s longstanding and vocal support for Law of the Sea. This is because to oppose the Convention on national security grounds requires one to say that the Chairman of the Joint Chiefs and the Chief of Naval Operations, the Office of the Secretary of Defense, and, indeed, the President of the United States are wrong about the security benefits of the Treaty.

General Richard Myers, Chairman of the Joint Chiefs of Staff has written: “The Convention remains a top national security priority?. It supports efforts in the War on Terrorism by providing much-needed stability and operational maneuver space, codifying essential navigational and overflight freedoms.”

Admiral Vern Clark, the Chief of Naval Operations, has stated that “the Convention supports U.S. efforts in the war on terrorism?.while leaving unaffected intelligence collection activities. Future threats will likely emerge in places and ways that are not yet known. For these and other as yet unknown operational challenges, we must be able to take maximum advantage of the established navigational rights codified in the Law of the Sea Convention to get us to the fight rapidly.” Admiral Clark also delivered impassioned testimony before the Senate Armed Services Committee underscoring that U.S. accession to the Law of the Sea would reduce the need for dangerous operations in which the Navy threatens the use of force as a means of asserting navigational freedoms.

Opponents are similarly reluctant to mention the unanimous support of affected U.S. industries. To oppose the treaty on economic grounds requires opponents to say that the oil, natural gas, shipping, fishing, boat manufacturing, exporting, and telecommunications industries do not understand their own bottom lines. It requires opponents to say that this diverse set of industries is spending money and time lobbying on behalf of an outcome that will be disadvantageous to their own interests.

The vast majority of conservative Republicans would support, in prospect, a generic measure that expands the ability of American oil and natural gas companies to drill for resources in new areas, solidifies the Navy’s rights to traverse the oceans, enshrines U.S. economic sovereignty over our Exclusive Economic Zone extending 200 miles off our shore, helps our ocean industries create jobs, and reduces the prospects that Russia will be successful in claiming excessive portions of the Arctic. All of these conservative-backed outcomes would result from U.S. ratification of the Law of the Sea Convention. Yet the treaty is being blocked because of ephemeral conservative concerns that boil down to a discomfort with multi-lateralism.

Putting Multi-lateralism into Perspective

Multi-lateral solutions do not always work. Some multi-lateral agreements that have been brought before the Congress during the last decade were poorly conceived or impossible to verify. But our negotiators won in talks on Law of the Sea. We are hurting no one but ourselves by failing to exploit this hard-earned diplomatic victory.

With respect to the Law of the Sea, the discomfort with multi-lateralism also fails to recognize the obvious: there is no unilateral option with regard to ocean policy. The high seas are not governed by the national sovereignty of the United States or any other country. If we are to establish order, predictability, and responsibility over the oceans—an outcome that is very much in the interest of the United States—we have to engage with other countries.

International cooperation also is required if our companies are to have a chance to safely exploit the resources of the seabed beyond our 200 mile Exclusive Economic Zone. Without the ability to secure property rights to mining sites, companies will be unlikely to invest the substantial capital necessary to conduct such mining. They would not want to risk having their claims disputed or having competitors free ride off their exploration investments. Given that no nation has sovereignty beyond its national jurisdiction, the only way to establish property rights in the open ocean is through an international regime. This is one of the reasons why companies with an interest in deep seabed mining have supported the treaty. Failing to ratify simply shuts our companies out of this process.

Contrary to some characterizations, the International Seabed Authority is not a highly politicized bureaucracy, nor would it be disposed to act against U.S. interests. If the United States joined the Convention, it would be able to veto the ISA’s adoption of any rules or regulations relating to the deep seabed mining regime.

Consequences of Not Joining the Convention

The debate on the Convention would be just an interesting political science case study if it were not for the fact that there are serious consequences to not ratifying it. The Convention comes open for amendment for the first time in November of this year. If the United States is not party to the Convention at that time, we will not have a seat at the table to protect against proposed amendments that would roll back Convention rights we fought hard to achieve.

Some nations may press for restrictions on the movement of naval or commercial vessels near their coastline. Others may pursue the right to exclude nuclear-powered vessels from their territorial waters. (Under the Convention, a ship’s propulsion system cannot be used as an argument to restrict its movements.) As a party, we will be in a very strong position to prevent harmful amendments.

In addition, the Convention’s Commission on the Limits of the Continental Shelf will soon begin making decisions on claims to continental shelf areas that could impact the United States’ own claims to the area and resources of our broad continental margin. Russia is already making excessive claims in the Arctic. Unless we are party to the Convention, we will not be able to protect our national interest in these discussions.

Opponents seem to think that if the U.S. declines to ratify the Law of the Sea, it will evaporate into the ocean mists. They seem to think that multi-lateral responsibilities in this case can be avoided if we stay out of the Convention. Unlike some treaties, such as the Kyoto Agreement and the Comprehensive Test Ban Treaty, where U.S. non-participation renders the treaty irrelevant or inoperable, the Law of the Sea will continue to form the basis of maritime law regardless of whether the U.S. is a party. International decisions related to national claims on continental shelves beyond 200 miles from our shore, resource exploitation in the open ocean, navigation rights, and other matters will be made in the context of the treaty whether we join or not.

Consequently, the United States cannot insulate itself from the Convention merely by declining to ratify. There are 145 parties to the Convention, including every major industrialized country. The Convention is the accepted standard in international maritime law. Americans who use the ocean and interact with other nations on the ocean, including the Navy, shipping interests, and fisherman, have told me that they already have to contend with provisions of the Law of the Sea on a daily basis. They want the United States to participate in the structures of Law of the Sea to defend their interests and to make sure that other nations respect our rights and claims.

We also should remember that the United States already has been abiding by the Law of the Sea Convention since President Reagan’s 1983 Statement of Oceans Policy. In addition, the United States is a party to the 1958 Convention on the Territorial Sea and Contiguous Zone, a predecessor to the Law of the Sea Convention. Many of the provisions of the 1958 Convention are less advantageous to the United States than comparable provisions in the Law of the Sea Convention.

Given that the United States has been abiding by all but one provision of the Treaty for the last 21 years and that we are already a party to a less advantageous international agreement on ocean law, dire predictions about the hazards to our sovereignty of joining the Law of the Sea Convention ring particularly hollow.

Conclusion

The fact that these concerns have been allowed to sideline the treaty for ten years is a bad sign for U.S. foreign policy in an age of terrorism. If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.

Eventually, however, I believe that the United States will become a party to the Convention because events will transpire that will brightly illuminate the costs of not ratifying it. At some point, a foreign nation will seek rule changes to the treaty that restrict passage by U.S. Navy vessels. At some point, our oil and mining industries will want to prospect beyond the 200-mile Exclusive Economic Zone. They won’t do that without the international legal certainty provided by the Law of the Sea that their claims and investments will be respected by other nations. At some point, Russia or some other country will succeed in having excessive ocean claims recognized because we are not there to stop them.

My message today is that it is irresponsible for us to wait to ratify the Law of the Sea until we feel the negative consequences of our absence from the Convention. The Senate should ratify the Law of the Sea Convention now in the interest of U.S. national security, the U.S. economy, and the American people.