Evidence: Recently Added
Myth: U.S. adherence to the convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy). Wrong--it is not true that our navigational freedoms are not threatened. There are more than 100 illegal, excessive claims around the globe that adversely affect vital navigational and over-flight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist excessive maritime claims by other countries that interfere with U.S. navigational rights as reflected in the convention. On occasion, these operations have entailed a certain amount of risk (e.g., the Black Sea bumping incident with the former Soviet Union in 1988). Being a party to the convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert its rights, thus affording additional methods of resolving conflict and aligning expectations of behavior at sea.
Myth: Freedom of navigation is only challenged from "[t]he Russian navy [that] is rusting in port [and] China has yet to develop a blue water capability...." (14)Sink the Law of the Sea Treaty — Bandow, Doug. — Cato Institute — Mar 15, 2004 [ More ]
The implication here is that the principal challenge to navigational freedom emanates from a major power and that we do not have any particular national concerns about freedom of navigation. But the 1982 convention deals with the law of peace, not war or self-defense. Thus, this argument misses altogether the serious and insidious challenge, which, again, is what the convention is designed to deal with; these repeated efforts by coastal nations to control navigation, including those from U.S. allies and trading partners, have through time added up to death by a thousand pin-pricks. This is the so-called problem of "creeping jurisdiction" which remains the central struggle in preserving navigational freedom for a global maritime power. After years of effort, we have won in the convention a legal regime that supports our efforts to control this "creeping jurisdiction." To unilaterally disarm the United States from asserting what was won against illegal claimants is folly and undermines our national security.
Myth: The convention would interfere with the operations of our intelligence community. Having either chaired or participated in the 18-agency National Security Council interagency process that drafted the United States' negotiating instructions for the convention, we found this charge so bizarre that we recently checked with the intelligence community to see if we had missed something. The answer that came back was that they, too, were puzzled by this charge, as there was absolutely no truth to it. We are confident that there is no provision in the convention which will, if approved by the Senate, constrain the operations of our intelligence community. In this regard, the United States is already bound by the 1958 convention, and since 1983, pursuant to President Reagan's order, we have operated under the provisions of the 1982 convention, with the exception of deep seabed mining issues associated with Part XI.
Myth: The convention is harmful to the Proliferation Security Initiative (PSI). Again, this is false. The PSI has already been negotiated explicitly in conformance with the convention, and not surprisingly so, since the nations with which we coordinate in that initiative are parties to the convention. This charge apparently rests on the false belief that if the United States does not adhere to the convention, it will be free from any constraints in relation to oceans law. Again, this is a false assumption; we are today a party to the 1958 Geneva Convention that is much more restrictive than the 1982 convention now before the Senate. This charge is also misguided as it fails to understand the critically important interest we have in protecting navigational freedoms on, in and above the world's oceans. The convention allows our vessels to get on station, a capability that is essential before any issue even arises about boarding. Moreover, we emphatically do not want a legal regime that would permit any nation to seize U.S. commercial vessels in the world's seas. That would be a massive loss of U.S. sovereignty! The PSI was carefully constructed with parties to the 1982 convention, using the flag state, port state and other jurisdictional provisions of the 1982 convention precisely to avoid this problem. Nor is this charge at all realistic in failing to note that nothing in the Law of the Sea Convention could or does trump our inherent rights to individual and collective self-defense. Most recently, we note, Under-Secretary of State John Bolton, a principal architect of the PSI, testified to the Senate that adhering to the convention will not harm the PSI.
Myth: The convention gives the United Nations its first opportunity to levy taxes.
False--the convention does not provide for or authorize taxation of individuals or corporations. It does include modest revenue sharing provisions for oil and gas activities on the continental shelf beyond 200 miles after the first five years of production and certain fees for deep seabed mining operations. The oil and gas fees are less than the royalties paid to foreign countries for drilling off their coasts and none of the revenues go to the United Nations. These de minimus revenues, which average between two and four percent over the projected life of a well, were a small price to pay for enlarging the U.S. continental shelf by 15 percent, an area larger than the state of California. This is one of the reasons the U.S. oil and gas industry so strongly supports the convention. With respect to deep seabed mining, U.S. companies that apply for deep seabed mining licenses would pay their fees directly to the ISA; no implementing legislation would be necessary. United States consent-that is, its veto would be applicable-would be required for any transfer of such revenues. Yet because the United States is a non-party, U.S. companies currently lack the ability to engage in deep seabed mining under domestic authority alone. By ratifying the treaty, our firms will have this ability which will open up new revenue opportunities when deep seabed mining becomes economically viable. The alternative is no deep seabed mining for U.S. firms, except through other nations that are convention parties. When the Interior Department charges royalties to U.S. oil companies for the development of oil and gas from our continental shelf, it is not exercising a "taxing power," rather it is selling access to an asset. Similarly, royalties paid for these rights are not a "tax" on U.S. taxpayers any more than such royalties paid by U.S. miners to Chile or Indonesia to mine resources there are such a "tax." Perhaps most importantly, until the United States accedes to the convention, it will not be able to exercise its veto over distribution of revenues from every other nation in the world generated by these provisions. And when we do accede, we not only have veto rights over distribution of revenues from U.S. mines, but from all other seabed mines as well. As such, these provisions greatly expand U.S. influence over financial aid decisions.
Myth: The convention "is designed to place fishing rights, deep-sea mining, global pollution and more under the control of a new global bureaucracy ..." (13) This is so erroneous that it would he humorous were it not so insistently advanced by critics. The executive branch, which led U.S. negotiations on the convention and supports the Senate's advice and consent, would never have supported such nonsense. The ISA deals solely with mineral resources beyond national jurisdiction, not with fishing, global pollution or navigation, nor with activities in the water column. If U.S. mining firms are ever to mine the deep seabed, particularly sites under no nation's ownership, it is necessary to create enforceable rights to this end. The United States is already party to hundreds of specialized international organizations. The ISA would be an unremarkable addition, one that after 11 years of operation currently has a staff of 28.
Militarily, the Convention provides the United States with a key strategic advantage that its armed services rely upon. That advantage is “the ability to navigate freely on, over, and under the world’s oceans.”158 In an urgent situation, the United States would be free to enter the territorial sea of any party to the Convention, including China, without losing momentum by halting to obtain permission, enter into negotiations, or weigh the benefits of violating international law.159 This is increasingly important given the recent skirmish between China and the United States on the seas. In March of 2009, U.S. ships were collecting information in what China claimed was an illegal manner in its exclusive economic zone.160 Chinese and U.S. naval ships had a brief standoff that was peacefully resolved. Because “such incidents can be expected in the future,” U.S. ratification of the Convention is essential.161 If the United States were a party to the Convention, it could argue that it was freely navigating—an activity that is permissible in China’s exclusive economic zones under the Convention.
Finally, the Convention also offers the United States a diplomatic and political solution should a dispute with China arise.167 Although the United States traditionally resists dispute resolution mechanisms, it would be in its interest to embrace them here. As a non-party to the Convention, a potential dispute between China and the United States could escalate into an explosive situation. By ratifying the Convention, the U.S. will have the support of the international community to exert pressure on China—either for peaceful dispute resolution or to adhere to the provisions of the Convention that it too has ratified.168
If appropriately resourced by the combatant commanders, the Freedom of Navigation program is effective, but it is not a panacea. The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational FON program may present diplomatic costs and pose risks inherent in physical challenges,148 as was displayed by the Black Sea bumping incident in February 1988. In 1996, the National Intelligence Council concluded that in some cases the costs, disadvantages, or risks of physically challenging excessive claims might be greater than the benefits.149 Of course, coastal states understand this calculus and will try to manipulate it to their advantage since they have an incentive to compel the inter- national community to acquiesce in their excessive maritime claims.
One effective component of the struggle for law at sea and the preservation of freedom of the seas is the U.S. Freedom of Navigation (FON) program. The FON program began, more than twenty-five years ago to tangibly exhibit the U.S. determination not to acquiesce to coastal states’ excessive maritime claims. When the program began in 1979, U.S. military ships and aircraft were exercising their rights against excessive claims of about thirty-five countries at the rate of about thirty to forty challenges annually.140 As late as 1998, the United States was conducting more than twenty- five operational assertions each year.141 But by 1999 the decline in operational challenges led the Department of the Navy and the Department of Commerce (within which the National Oceanic and Atmospheric Administration resides) to recommend an expansion of the program to “exercise openly the traditional freedoms of navigation and overflight in areas of unacceptable claims.” In 2000, the United States conducted challenges against just fifteen states.143 The cumulative report for the years 2000 to 2003 and the 2004 report show further decline.144 By 2005, the Department of Defense reported conducting operational challenges against only six nations: Cambodia, Ecuador, Philippines, Indone- sia, Iran, and Oman. That level of operational assertions remained steady in 2006, with challenges reported against the excessive maritime claims of the Philippines, Indonesia, Iran, Oman, and Taiwan.146 The steady decline in freedom of navigation challenges over the last ten years is attributable to two factors: (1) a reduction in the number of excessive claims due to the constructive influence of the Convention and (2) Department of Defense resource constraints imposed by a declining naval force structure coupled with competing tasking in support of the War on Terror.