Evidence: Most Popular
The navigation principles contained in UNCLOS would allow United States and allied forces to use the world's oceans to meet challenging national security requirements, including those necessary to fight the Global War on Terrorism and to project military power overseas. Stephen J. Hadley, President Bush's National Security Advisor, wrote the Senate in February 2007 to request that it take positive action on UNCLOS as soon as possible, arguing, among other things, that "the Convention protects navigational rights critical to military operations and essential to the formulation and implementation of the President's National Security Strategy, as well as the National Strategy for Maritime Security."'17 The Convention provides the most effective means to exercise U.S. leadership in the management and development of the law of the sea. UNCLOS facilitates combined operations with our coalition partners-all the rest of whom are parties to the Convention-through a commitment to a common set of rules, such as those governing the Proliferation Security Initiative (PSI).18"Statement of John D. Negroponte: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (13 quotes) ]
The renegotiated International Seabed Authority, established under the treaty, provides property rights for U.S. firms to develop deep-sea mining sites that require security of tenure before they can justify the large investments required. Further, the treaty grants the U.S. the only permanent veto as to how the modest royalties, collected in return for secure property rights, are to be distributed to state parties.
Most troubling, when asked by the chairman how he would provide security of tenure sought by U.S. firms, Mr. Rumsfeld suggested that they should operate through joint ventures with other nations. His answer, implicitly understanding that U.S. nonadherence can in no way alter the international regime now in force for 161 countries, and that our firms would still operate under the treaty regime, needlessly throws away U.S. jobs, Treasury tax receipts, and critical U.S. access to strategic minerals. It would also mean no U.S. veto over any distribution of revenues, amendments to Part XI, or rules and regulations for mining.
The treaty provides property rights for miners in an area of the ocean not under the sovereignty of any nation. Absent U.S. adherence, U.S. firms cannot mine the deep seabed—as they will not have the security of tenure necessary to expend the $2 billion to $3 billion for a deep-seabed mining operation. These operations are of utmost importance for the U.S.—at stake is U.S. access to strategic minerals of copper, nickel, cobalt, manganese and rare earths worth about $1 trillion.
And ratifying the treaty saves the United States boatloads of cash. Approving it would allow us to reduce our military expenditures yet maintain naval strength at a time when our nation’s debt keeps climbing. One example is over piracy. The total economic costs of Somali piracy in 2011 were approximately $7 billion by some estimates. Signing the treaty would allow the U.S. to better coordinate anti-piracy and anti-terrorism efforts alongside the international community. Instead of policing the world’s waters by ourselves, we could share the burden. Signing the treaty, then, reduces costs and danger for our already overextended navy. What’s more, approving the treaty is similar to the best kind of business decision: it reduces expenses and puts money in our pocket. It provides for Exclusive Economic Zones, or exclusive privileges to manage the natural resources near our coast. No country stands to benefit more from these zones than the United States. As Citizens for Global Solutions points out: “The American zone is larger than that of any country in the world. The size of [America’s] zone is…bigger than the lower 48 states combined.” With increased access to the ocean’s resources – including mineral-rich waters near our shores – we can boost the economy, increase domestic energy production and bring back more jobs.
Finally, the LOST may encourage the UN to venture into unexplored territory. The UN’s Division for Ocean Affairs and the Law of the Sea boldly announced that the LOST “is not . . . a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”69 If international jurists exhibit the same creativity as shown by some judges domes- tically, the LOST might prove to be dangerously dynamic.
In 2001 Douglas Stevenson, representing the Seamen’s Church Institute, an advocacy group for mariners, complained about “trends that erode traditional seafarers’ rights,” such as that to medical care, as well as to protection from abandonment by insolvent and irresponsible ship owners. Stevenson explained, “When mariners’ health, safety or welfare is in jeopardy, we look to the United Nations Convention on the Law of the Sea to protect them.”70 There are obviously real and tragic abuses of seamen, but what the “international community” should do as part of the LOST about such issues is not obvious. Washington might find itself facing unexpected obligations if it signs on.
Critics of the U.S. refusal to sign in 1982 predicted ocean chaos, but as noted earlier, not once has an American ship been denied passage. No country has had either the incentive or the ability to interfere with U.S. ship- ping, and, if one or more had, the LOST would have been of little help. In 1998 treaty supporters agitated for immediate ratification because several special exemptions for the United States were set to expire. Washington did not ratify and no one seemed to notice.
Ironically, problems cited by U.S. shippers -- creation of a “particularly sensitive sea area” off of Europe, for instance—have involved alleged misinterpretations of the treaty, not America’s lack of membership.67 And foreign shippers have attempted to use the LOST to escape application of U.S. environmental controls.68 Joining the treaty would provide no panacea.
Convention advocates further contend that even if the LOST is flawed, only participation in the treaty regime can prevent future damaging interpretations, amendments, and tribunal decisions. Bernard Oxman, a University of Miami Law School professor who also serves as a judge ad hoc on the International Tribunal for the Law of the Sea, contends that “what we gain by becoming party is increased influence over” the interpretation of the convention’s rules.63 Senator Lugar worries that failing to ratify the treaty means the United States could “forfeit our seat at the table of institutions that will make decisions about the use of the oceans.”64 David Sandalow of the Brookings Institution warns that if the United States stays out of the LOST, it risks losing some of its existing navigation freedoms through “backsliding by nations that have put aside excessive maritime claims from years past.”65
However, America’s friends and allies, in both Asia and Europe, have an incentive, with or without the LOST, to protect navigational freedom. So long as Washington maintains good relations with them—admittedly a more difficult undertaking because of strains of the war in Iraq—it should be able to defend U.S. interests indirectly through surrogates. If the nations that benefit from navigational freedom are unwilling to aid the United States while Washington is outside the LOST, they are unlikely to prove any more steadfast with Washington inside it. Assistant Secretary Turner admitted as much when he told the Senate Foreign Relations Committee in October 2003 that the United States had “had considerable success” in asserting “its oceans interests as a non-party to the Convention.”66
Even if the LOST offered a definite and positive interpretation of navigation provi- sions, the legal protections for free transit would provide little practical gain. Benjamin and Daniel Friedman contend: “By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.”52 How the Law of the Sea Convention Benefits the United States . Bipartisan Security Group: Washington, D.C., November 2004 (7p). [ More (4 quotes) ] Administration representatives make the same argument: “The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms,” testified Adm. Michael G. Mullen, then vice chief of naval operations for the Joint Chiefs of Staff.53"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ]
That’s true, but it doesn’t go very far. The now-retired Admiral Schacte acknowledged in Senate testimony: “The Convention alone is not enough, even [with the United States] as a party. Our operational forces must continue to exercise our rights under the Convention.”54 That is, to protect American navigation rights from foreign encroachments, the U.S. Navy must regularly conduct military operations on the basis of the international transit freedoms claimed by Washington, regardless of whether or not the United States ratifies the LOST. Meanwhile, the LOST is unlikely to influence countries that have either the incentive or the ability to interfere with U.S. shipping. In practice, few do: nations usually have far more to gain economically from allowing unrestricted passage.