The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.
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Moreover, to mine deep seabed minerals requires security of tenure for the billion dollar plus costs of such an operation. Our industry has emphatically reminded us that they cannot mine under a fishing approach in which mining is a free-for-all concept, as the critics seem to suggest. Rather, they must have both the exclusive rights to mine sites and international recognition of titles to the minerals recovered. These requirements led to the formation of a limited international agency to provide security of tenure and title for mineral resources of the seabed beyond national jurisdiction, which was otherwise owned by no one. The ISA was a necessary specialized agency of strictly limited jurisdiction to deal with security of tenure and stable property rights so that investors can amortize their debt. Quite contrary to the recent testimony of one critic before the Senate Committee on Environment and Public Works, the ISA would not have "the exclusive right to regulate what is done, by whom, when and under what circumstances in subsurface international waters and on the sea-floor." (12) Rather, the ISA is a small, narrowly mandated international agency that has emphatically no ability to control the water column and only functional authority over the mining of the minerals of the deep seabed beyond national jurisdiction. Again, this is a necessary requirement for seabed mining, an area beyond which any nation has sovereignty, to provide security of tenure to mine sites, without which mining will not occur. By not adhering to the treaty, the United States will simply lose its deep seabed mine sites--the best in the world--and our seabed mining industry will be permanently deep-sixed.
Critics also argue that the convention will turn the world's oceans over to the United Nations. The United Nations has no decisional authority over any oceans issue in the convention, nor does the treaty create another UN agency. Rather, the three strictly limited organizations that the convention does create report to the state parties to the treaty, not to the United Nations. As with many U.S. arms control agreements, the negotiations proceeded under UN auspices, but the United Nations had no hand in developing the convention. And the negotiations leading to the convention were supported by the United States precisely because of its strategic and resource-based interests at sea. The real threat to these interests has been unbridled coastal state "unilateralism," sometimes referred to as "creeping jurisdiction."11 This is a threat for which multilateral negotiations provided the best forum for protecting core U.S. oceans interests.
The term "peaceful purposes" did not, of course, preclude military activities generally. The United States had consistently held that the conduct of military activities for peaceful purposes was in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement. (7)Indeed, in their zeal to complain about the convention, the critics promote an interpretation of this language that may be cited by opponents of future space-based missile defense programs. Thus, in a different context, the implication of this argument would be to ban the aforementioned defense systems because of our adherence to the Outer Space Treaty that contains the same "peaceful purposes" language. (8) Real world experience refutes this argument by showing warships of every major power freely navigating the world's oceans despite the convention being in force for 149 nations.
Critics' complaints tend to center on provisions that require submarines to surface and show their flag in the territorial sea, as well as those provisions that limit rights to board foreign flag ships. But apparently out of ignorance they never disclose that such provisions are already binding on the United States pursuant to the 1958 convention that was ratified with the Senate's advice and consent almost a half-century ago and with which we have lived since. Nor do the critics note the reciprocal nature of the law. Provisions against overly broad boarding exist precisely to protect the sovereignty of U.S. flag ships on the high seas. Do the critics really want Chinese submarines submerged off the beaches of New York or Los Angeles? Most importantly, the 1982 convention has considerably improved on the 1958 convention to meet current U.S. resource and strategic needs. Arguments against the convention that ignore the 1958 obligations effectively support those now outdated concepts, foregoing the new strategic rights of transit passage through straits, archipelagic sea lanes passage, the improved regime of innocent passage and many other issues critical to U.S. national security and ocean interests.
Even more laughable is the charge of a conspiracy to create a world government. In reality, the convention expanded national sovereign rights more than any international agreement in history. Its central thrust entails an extension of coastal resource and economic rights in a vastly enlarged exclusive economic zones (EEZ) and continental shelf, while furthering sovereign rights and navigational freedom. On the contrary, the corridors of the law of the sea negotiations were predominantly filled with thoughts of nationalism rather than internationalism. And ironically, in their attack on the convention, the critics join extreme internationalists who have been key opponents of the treaty because it focuses on national sovereign rights.
The critics also show little understanding of the realities of asserting the rule of law in the world's oceans. They seemingly contend that the United States can protect its interests by shooting its way around the oceans rather than developing a stable and favorable legal regime, defensible with force if necessary, that provides a legal basis for naval and air operations. The United States simply cannot shoot its way to acceptable resolutions of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies. Nor is it realistic to ignore the effects of law and international agreements in our interactions with others. It is hubris to believe that the United States can disregard the law without consequences, as it creates scenarios where other nations follow suit, thus compromising interests on both sides. Ironically, at a time when the president of the United States is urging others toward the rule of law as a foreign policy interest, the critics voice only disdain for that principle.
As we have testified elsewhere, the most compelling reasons that support U.S. adherence to the Convention are rooted in restoring U.S. oceans leadership, protecting national interests and enhancing U.S. foreign policy. For example, if the convention is ratified, the United States will be in a stronger position to respond to illegal oceans claims such as the harassment of the USNS Bowditch survey vessel by the People's Republic of China (PRC). The United States will also be able to advance more rapidly with offshore oil and gas development beyond 200 nautical miles (approximately 15 percent of our continental shelf), require U.S. approval for the transfer of seabed revenues and reclaim the prime deep seabed mining sites it has abandoned. Further, adhering to the convention will finally give the United States an opportunity to officially declare its views as to the correct operation of convention provisions. This will end over a decade of self-imposed silence despite efforts by extremist opponents to roll back the gains achieved in the convention.