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The question has been raised whether the Convention (in particular articles 19 and 20) prohibits intelligence activities or submerged transit in the territorial sea of other States. It does not. The Convention’s provisions on innocent passage are very similar to article 14 in the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States is a party. (The 1982 Convention is in fact more favorable than the 1958 Convention both because the list of non-innocent activities is exhaustive and because it generally uses objective, rather than subjective, criteria in the listing of activities.) A ship does not, of course, enjoy the right of innocent passage if, in the case of a submarine, it navigates submerged or if, in the case of any ship, it engages in an act in the territorial sea aimed at collecting information to the prejudice of the defense or security of the coastal State, but such activities are not prohibited by the Convention. In this respect, the Convention makes no change in the situation that has existed for many years and under which we operate today.
Joining the Convention will advance the interests of the U.S. military. As the world’s leading maritime power, the United States benefits more than any other nation from the navigational provisions of the Convention. Those provisions, which establish international consensus on the extent of jurisdiction that States may exercise off their coasts, preserve and elaborate the rights of the U.S. military to use the world’s oceans to meet national security requirements. They achieve this, among other things, by stabilizing the outer limit of the territorial sea at 12 nautical miles; by setting forth the navigation regime of innocent passage for all ships in the territorial sea; by protecting the right of passage for all ships and aircraft through, under, and over straits used for international navigation, as well as archipelagoes; by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond; and by providing for the laying and maintenance of submarine cables and pipelines. U.S. Armed Forces rely on these navigation and overflight rights daily, and their protection is of paramount importance to U.S. national security.
MYTH: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining. Each objection has been addressed. Among other things, the 1994 Agreement:
- provides for access by U.S. industry to deep seabed minerals on the basis
- of non-discriminatory and reasonable terms and conditions;
- overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires supermajorities that will enable us to protect our interests by putting together small blocking minorities;
- restructures the regime to comport with free-market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.
The 1982 Convention on the Law of the Sea may seem an obscure agreement to nonexperts. That is not the case. The convention is a carefully negotiated international agreement numbering several hundred pages that covers a host of measurable national security, economic, and environmental issues of vital strategic importance to the United States. By remaining a nonparty to the convention, the United States not only forfeits these concrete interests but also undermines something more intangible: the legitimacy of U.S. leadership and its international repu- tation. For example, American pleas for other nations to follow pollution and fishing agreements ring empty when the United States visibly rejects the Law of the Sea Convention. Remaining outside the convention also hurts its diplomatic hand in other international forums, as well as the perceptions of other states about U.S. commitments to multilateral solutions. As former Supreme Court justice Sandra Day O’Connor has noted, “The decision not to sign on to legal frameworks the rest of the world supports is central to the decline of American influence around the world.”27
Military Operations. U.S. military forces are already legally bound to follow the provisions of convention by virtue of President Reagan’s 1983 Statement on Ocean Policy; therefore, joining the convention will impose no additional restrictions on U.S. military operations. Since the completion of the 1994 agreement, there has been unanimous support for joining the convention by uniformed and civilian national security leaders, including the chairman and Joint Chiefs of Staff, the combatant commanders, and the comman- dant of the Coast Guard. The public record documenting historical and current support by national security leaders is overwhelming.32 The most recent testimony of Deputy Secretary of Defense Gordon England succinctly captures this support:
“President Bush, Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, the Combatant Commanders, the Commandant of the Coast Guard and I urge the Committee to give its approval for U.S. accession to the Law of the Sea Convention and ratification of the 1994 Agreement. The United States needs to join the Law of the Sea Convention, and join it now, to take full advantage of the many benefits it offers, to mitigate the increasing costs of being on the outside, and to support the global mobility of our armed forces and the sus- tainment of our combat forces overseas.”33
American energy and deep-seabed companies are at a disad- vantage in making investments in the OCS due to the legal uncertainty over the outer limit of the U.S. continental shelf, nor can they obtain international recognition (and, as a result, financing) for mine sites or title to recovered minerals on the deep seabed beyond national jurisdiction. Even if U.S. firms were to unilaterally set out on their own, because the United States has negligible mineral-processing technology, they would have difficulty finding international partners to buy unprocessed minerals because they would have been obtained outside of the agreed regime.
The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sovereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic. This is especially urgent this year, as the commission will review an influx of claims expected in May 2009, the deadline for twenty- six states to make their submissions based on the procedural clock that began ticking when they ratified the convention. (The United States would have ten years to make its claim if it were to join the convention.)