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As the nation with the world’s largest navy, an extensive coastline and a continental shelf with enormous oil and gas reserves, and substantial commercial shipping interests, the United States certainly has much more to gain than lose from joining the Law of the Sea Convention. In my view, it is most unfortunate that a small but vocal minority – armed with a series of flawed arguments – has imposed upon the United States a delay that is contrary to our interests. Nevertheless, I am convinced this will change and am confident that the United States Senate will approve the Convention in due course.
In the meantime, the United States will continue to abide by the Convention and work within its framework. Even as we remain outside the Convention, the Legal Adviser’s Office confronts law of the sea issues on a daily basis. For example, we work at the International Maritime Organization and in regional fora to protect the marine environment by elaborating rules for reducing vessel source pollution, ocean dumping, and other sources of marine pollution. We recently achieved U.S. ratification of a treaty – “MARPOL Annex VI” – aimed at limiting air pollution from ships and a protocol limiting land-based sources of marine pollution in the Caribbean Region. A global treaty on ocean dumping – the “London Protocol” -- awaits action by the full Senate. At home, we coordinate with the Department of Justice to ensure that prosecutions involving foreign flag vessels are consistent with the marine pollution chapter of the Convention, and we scrutinize legislative proposals from both the Executive Branch and the Congress to ensure that U.S. marine pollution jurisdiction is applied and enforced in accordance with law of the sea rules.
We also negotiate maritime boundary treaties with our neighbors in line with the provisions of the Convention. Most people think the United States has only two neighbors – Canada and Mexico – but by virtue of our island possessions, we actually have over thirty instances in which U.S. maritime claims overlap with those of another country. Less than half of them have been resolved. Some involve disagreements about how much effect to give to islands in determining a maritime boundary. In the case of the Beaufort Sea, Canada argues that the existing treaty establishing the land boundary between Alaska and Canada also determines the maritime boundary. Our office is also assisting a State Department-led Task Force to determine the outer limits of the U.S. continental shelf beyond 200 nautical miles. The U.S. Coast Guard icebreaker Healy has recently conducted several cruises in the Arctic Ocean, including one that mapped areas of the Chukchi Borderland where the U.S. shelf may extend more than 600 miles from shore.
U.S. and international efforts to combat terrorism and proliferation have also generated law-of-the-sea-related issues. Consistent with the Convention, we fashion shipboarding agreements to promote the maritime interdiction aspects of the Proliferation Security Initiative. And we bring law of the sea equities into the elaboration of treaties on suppression of criminal acts at sea. In fact, the U.S. Senate has just given its advice and consent to ratification of two protocols that supplement the convention that addresses suppression of unlawful acts at sea – the 2005 so-called “SUA Protocol” and the 2005 “Fixed Platforms” Protocol.
Over the past year or so, some of the most interesting law of the sea issues for us have come from the Arctic, where climate change is creating the prospect for increased shipping, oil and gas activity, tourism, and fishing. As a result, the law of the sea has become more relevant than ever. I want to conclude with a few observations and some ideas about ways forward regarding the melting Arctic.
My first observation is that while some have expressed concern that the Arctic is a “lawless” region, this could not be further from the truth. For one, the law of the sea, as reflected in the Convention, provides an extensive legal framework for a host of issues relevant to the Arctic. It sets forth navigational rights and freedoms for commercial and military vessels and aircraft in various maritime areas. It addresses the sovereignty of the five Arctic coastal States – the U.S., Russia, Canada, Denmark, and Norway – by setting forth the limits of the territorial sea and the applicable rules. It addresses sovereign resource rights by setting forth the limits of the exclusive economic zone and the continental shelf and rules governing those areas. It provides the geological criteria relevant to establishing the outer limits of the continental shelf beyond 200 nautical miles – a topic of great interest these days as the Arctic coastal States seek to extend their respective shelves to the limits permissible under international law. For Parties to the Convention – that is, the four other coastal States – it sets forth a procedure for securing international recognition of those outer limits. International law also sets forth rules for resolving cases where the maritime claims of coastal nations overlap. And finally, the law of the sea provides rules regarding marine scientific research in the Arctic and sets out the respective rights and responsibilities among coastal States, flag States, and port States regarding protection of the marine environment.
A final focus of opponents’ criticisms is the Convention’s dispute settlement provisions. While reasonable people can differ over whether third- party dispute settlement is, on balance, a “pro” or a “con,” I believe that these particular provisions are useful, well-tailored, and in no event a reason to jettison the Convention. The United States affirmatively sought dispute settlement procedures in the Convention to encourage compliance and to promote the resolution of disputes by peaceful means. We sought and achieved procedures that are flexible in terms of forum. For example, the Convention allows a Party to choose arbitral tribunals and does not require any disputes to go to the International Court of Justice. Its procedures are also flexible, allowing a Party to choose to exclude certain types of disputes, such as those concerning military activities. In this regard, some have questioned whether it is up to the United States – or a tribunal – to determine what constitutes a U.S. “military activity” under the Convention. We propose to include a declaration in the Senate’s resolution of advice and consent making clear that each Party has the exclusive right to determine what constitutes its “military activity.” And I can assure you that there is no legal scenario under which we would be bound by a tribunal decision at odds with a U.S. determination of military activities.
Opponents also contend that accession is basically unnecessary for the United States to enjoy the benefits of the Convention. On this view, we get the benefit of the rest of the world treating the Convention’s provisions as customary international law without having to sign up ourselves. And, the argument goes, if there are any deficiencies in our legal rights, the U.S. Navy can make it up through force or the threat of force. So why join the Convention and subject ourselves to, for example, third-party dispute settlement?
This argument misses some key points:
First, asserting customary international law does not secure all the benefits of the Convention for us. For example, as a non-party, we do not have access to the Continental Shelf Commission and cannot nominate nationals to sit on it.
Second, relying on customary law does not guarantee that even the benefits we do currently enjoy are secure over the long term. Customary law is not the most solid basis upon which to protect and assert U.S. national security and economic rights. It is not universally accepted and changes over time based on State practice. We therefore cannot assume that customary law will always continue to mirror the Convention, and we need to lock in the Convention’s rights as a matter of treaty law. As Admiral Mullen testified when he was Vice Chief of Naval Operations, “[it is too risky to continue relying upon unwritten customary international law as the primary legal basis to support U.S. military operations.” One irony of this debate is that some of the opponents of the Convention are the same people who most question the viability of customary international law.
Third, to obtain financing and insurance and avoid litigation risk, U.S. companies want the legal certainty that would be secured through the Convention’s procedures in order to engage in oil, gas, and mineral extraction on our extended continental shelf. So, while it may be true that the Navy will continue to exercise navigational rights with or without the Convention, U.S. companies are reluctant to begin costly exploration and extraction activities without the benefit of the Convention.
Fourth, military force is too blunt an instrument to protect our asserted customary international law rights, especially our economic rights. It is simply unrealistic and potentially dangerous to rely solely on the Navy to ultimately secure the benefits of the Convention. The Navy itself has made clear that treaty- based rights are one of the tools it needs in its arsenal.
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.
Although international maritime law has not established an international tribunal to prosecute acts of piracy, some experts believe that creating such a tribunal would provide a long-term solution to combating piracy.217 Employing an international tribunal with respect to acts of cyberaggression would ensure that offenses are not treated differently across jurisdictional lines. At the very least, the existence of an international tribunal with universal jurisdiction over acts of cyberaggression would deter such acts and provide a venue for prosecution where nations otherwise often refuse to prosecute such acts. As with piracy, it may be difficult to compel nations to prosecute acts of cyberaggression in the absence of an international tribunal, where the concept of universal jurisdiction confers a right but does not impose an obligation to prosecute such crimes.218 It has been suggested that "while every state should retain the right to redress piracy, the United Nations could create an ad hoc tribunal to have the obligationto redress piracy."219 As has been suggested for handling the prosecution of piracy under UNCLOS, an international agreement addressing acts of cyberaggression could allow nations to retain the right to redress cybercrime, while creating an international tribunal that has an obligation to prosecute cybercrime. This type of tribunal would help to preserve national autonomy, while providing nations and private actors with an international forum for redressing their grievances. Since cybercrime, like piracy, has a large impact on private actors who are often the victims of these types of crimes, allowing private actors to pursue justice via access to an international tribunal would encourage nations to bring domestic policies in line with international standards.220 The availability of an international cybercrime tribunal could also lessen nationalistic resistance to international standards by empowering private actors with the ability to seek international redress for economic injury inflicted by acts of cybercrime.
The recent cyberattacks on Estonia, Georgia, and Iran demonstrate the shortcomings of both international criminal law governing cybercrime and he absence of international law addressing cyberterrorism and cyberwarfare. In a world where internet commerce is increasingly important to the growth of the global economy, nations cannot afford to shape cybersecurity law unilaterally in furtherance of provincial interests at the expense of a concerted international effort to develop uniform cybersecurity law. As the economic futures of nations become ever more intertwined, international consensus on issues like cyberaggression is essential to global security and economic well-being.
Analogizing cyberthreats to the concerns that spawned cooperation in developing international maritime law is a useful starting point for analyzing and developing an international response that is necessary to meaningfully address global cybersecurity. Without an international agreement that defines the spectrum of cyberaggression, provides for some form of universal jurisdiction over perpetrators, and establishes an international organization focused on cybersecurity policy, the threat to international security posed by cyberaggression will continue to grow. To that end, the mere existence of an international cybercrime tribunal would go a long way toward encouraging cooperation on the development of international norms relating to cybercrime, while allowing nations to retain some level of autonomy in the development and enforcement of domestic cybersecurity policy.
If members of the international community were able to develop a convention structured after UNCLOS, mandating international cooperation on cybersecurity and applying universal jurisdiction to acts of cyberaggression, the benefits would be palpable. One such benefit would be an opportunity to create a U.N. agency comparable to the International Maritime Organization (IMO) 210 whose purpose would be to ensure the safety and security of the Internet.
The IMO was created pursuant to the adoption of the Convention on the International Maritime Organization,211 which entered into force in 1958. The purpose of the IMO as stated in Article 1(a) of the Convention is to facilitate cooperation among governments in order to ensure that the "highest practicable standards in matters concerning maritime safety" are in place. The IMO also maintains detailed records of all incidents of piracy,213 which supports the IMO's policy recommendations and efforts to develop new law when the need arises.214 One such legal instrument is Resolution A.738(18), which was intended to facilitate States' duties to cooperate in the repression of piracy under Article 100 of UNCLOS.215 Generally, Resolution A.738(18) encouraged intergovernmental cooperation in all aspects of piracy prevention and solidified the IMO's antipiracy strategy. The IMO's "strategy consist[s] of compilation and distribution of periodical statistical reports, piracy seminars and field assessment missions to regions affected by piracy and the preparation of a code of practice for the investigation and prosecution of the crime of piracy."216
An agency similar in function to the IMO dedicated to tracking incidents of cyberaggression and fostering cooperation between member nations would help to consolidate the international effort to monitor and deter cyberaggression. Moreover, such an agency would help to legitimize the international legal regime that created it, and would provide sound policy rooted in empirical evidence.
The Internet poses legal challenges similar to those encountered in maintaining order in the use of the world's oceans. UNCLOS, which imposes law and order in the seas, entered into force based on "the notion that all problems of ocean space are closely related and needed to be addressed as a whole."" Similarly, the Internet is shared globally and the consequences of actions taken by an Internet user in one jurisdiction can be borne globally. As a result, the legal challenges posed by cyberaggression are similar in many respects to the problems posed by piracy and other criminal activity on the high seas. UNCLOS specifically addresses piracy by defining conduct that constitutes piracy178 and describing the duties of all nations with respect to combating piracy.179 For example, UNCLOS balances the territorial jurisdiction of nations with the concept of universal jurisdiction. Article 105 provides that "[o]n the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft" and that "[t]he courts of the State which carried out the seizure may decide upon the penalties to be imposed."180 Moreover, if a vessel engaged in piracy is captured in international waters by a nation that does not have criminal law that applies beyond their territorial borders, other nations that do have such criminal law may prosecute the pirates based on universal jurisdiction.181
MOORE: First, this is one of the few treaties that we've negotiated in which we specifically put in an exemption for all military activities with respect to submission to dispute settlement. You and I indeed are on record together as sending a letter to the Senate Foreign Relations Committee basically indicating that all military activities have been withdrawn from dispute settlement. And if that were not enough, the Senate resolution of advice and consent that's proposed basically indicates that any determination of whether that is true or not is in fact left to the United States to determine. Let me also suggest that we're never, in the real world, going always to be able to control every arbitrator. There are going to be bad arbitrations. Unfortunately, all the judges are not Judge Steve Schwable (ph). And there are others that don't understand international law. But in the aggregate, I believe it is strongly in the interest of the United States to continue to support compulsory dispute settlement. There's nothing un-American about this. Indeed, George Washington indicated that the single most important achievement of his administration was the arbitration provisions contained in the Jay Treaty. In addition to that, the United States, at present, is a party to some 85 treaties with arbitration provisions, some of which are extremely important, and some 16 multilateral conventions that submit to a variety of different kinds of tribunals. So this is certainly nothing new. I think the simple answer is, one, for the tribunals that we're involved in, we will have the ability to select some of those judges, of course, in the way they're selected -- two out of the five in the general arbitration -- so we don't know what those other parties may have accepted. The arbitration only binding on them, not on other parties. So we're the ones that participate when we enter into arbitration in selecting the judges. A military exclusion would be applicable, so that's not an issue whatsoever in the case. And finally, if they clearly did something that is ultra vires, as I would regard this as ultra vires, it clearly is simply not binding on the United States under normal rules of international law. That decisions that go beyond the jurisdiction of the tribunal are simply void.