Evidence: Recently Added
Critics of ratification argue that U.S. military flexibility under the Convention is compromised because it will need to bend to the will of Convention guidelines.162 As discussed above, however, Convention provisions enhance flexibility by allowing access to a vast array of territorial seas.163 Additionally, the U.S. military enthusiastically supports the Convention, giving it perhaps the strongest endorsement in the interest of national security.164 Admiral Vern Clark, Chief of Naval Operations, in 2004 stated"Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ], “I fully support the Convention because it preserves our navigational freedoms, provides the operational maneuver space for combat and other operations for our warships and aircraft, and enhances our own maritime interests.”165"Statement of Admiral Vern Clark: On the Law of the Sea Convention (April 8, 2004) ." Testimony before the Senate Armed Service Committee, April 8, 2004. [ More (2 quotes) ] Furthermore, the Vienna Convention, which governs international treaties, provides that where a state’s national security is threatened (or circumstances fundamentally change) it may suspend its obligations under a treaty.166 In the unlikely event that the Convention inhibits the United States from ensuring national security, the U.S. would be no worse off since it would not be bound by the Convention in those instances.
Criticism of the Rome Statute stems from concerns that the United States would compromise sovereignty by allowing others to prosecute its citizens without its consent, and potentially denying them basic constitutional rights and other domestic law protections.81 Proponents of the ICC contend that U.S. arguments against ratification of the Rome Statute fail in the face of facts.82 These arguments can be extrapolated and applied to the far less controversial dispute resolution provisions of the Convention. Among the most compelling arguments against a cooperative dispute resolution mechanism are assertions that a foreign body would have jurisdiction over U.S. citizens. Under the widely accepted principles of universal jurisdiction and territoriality, the United States already relinquishes a great deal of power over the fate of its citizens on trial.83 Concerns of bias among the deciding party are also ill-founded. With respect to the International Criminal Court, there are a number of safeguards in place to guard against such fears.84 The dispute resolution provisions in the Convention do not provide for prosecutions of U.S. citizens, but largely govern disputes over economic matters.85 While there are costs as- sociated with agreeing to a dispute resolution mechanism that is not an American court, those costs are neither new nor absolute.86 Furthermore, the underlying concern with the ICC, fear of prosecution of servicemen and women,87 is not relevant in this context. In fact, the U.S. Navy and other military members support ratifi- cation of the Convention.88 Finally, as discussed earlier, the dispute resolution provisions of the Convention contain an explicit carve-out for issues that infringe upon national sovereignty, among others.89 Under those circumstances, parties to the Convention are not required to utilize any of the mechanisms enumerated, and can instead rely upon a non-binding option, thus softening the delegation aspect associated with dispute resolution.90
Third, some allege that in joining, our military would be subject to the jurisdiction of international courts – and that this represents a surrendering of U.S. sovereignty. But once again, this is not the case. The Convention provides that a party may declare it does not accept any dispute resolution procedures for disputes concerning military activities. This election has been made by 20 other nations that have joined the Convention, and the United States would do the same. The bottom line is that neither U.S. military activities nor a U.S. decision as to what constitutes a U.S. military activity would be subject to review by any international court or tribunal.
Let me give you five important reasons as to why joining this Convention would provide enhanced national security.
First, as the world’s pre-eminent maritime power, and the country with one of the longest coastlines and largest extended continental shelf, we have more to gain from accession to the Convention than any other country. If we are not at the table, then who will defend our interests? Who will lead the discussion to influence the further development and interpretation of the Law of the Sea? It is only by being there to protect our rights that we would ensure that our sovereignty is not whittled away by the excessive claims and erroneous interpretations of others. It would give us the power and credibility to support and promote the peaceful resolution of disputes within a rules-based order.
Second, by joining the Convention, we can secure our navigational freedoms and global access for military and commercial ships, aircraft, and undersea fiber optic cables. As it currently stands, we are forced to assert our rights to freedom of navigation through customary international law, which can change to our detriment. Treaty law remains the firmest legal foundation upon which to base our global presence, on, above, and below the seas. By joining the Convention, we would help lock in rules favorable to freedom of navigation and our global mobility.
Third, accession would bring legal certainty to a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad extended continental shelf beyond that zone.
Fourth, accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest. We already see countries testing new shipping routes and exploring for natural resources as Arctic ice cover recedes. Joining the Convention would maximize international recognition and acceptance of our substantial extended continental shelf claims in the Arctic. As we are the only Arctic nation that is not a party to the Convention, we are at a serious disadvantage in this respect. Accession would also secure our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.
Fifth, and finally, our new defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia. Becoming a party to the Convention would strengthen our position in this key area. For example, numerous countries sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea. The United States has long declared our interests and respect for international law, freedom of navigation, and peaceful resolution of disputes. We have demonstrated our commitment to those interests through our consistent presence and engagement in these critical maritime regions. By not acceding to the Convention, we give up the strongest legal footing for our actions. We undercut our credibility in a number of Asia-focused multilateral venues – just as we're pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes in the South China Sea and elsewhere. How can we argue that other nations must abide by international rules when we haven’t joined the treaty that codifies those rules?
Other Benefits. We should also join the Convention now to steer its implementation. The Convention’s institutions are up and running, and we – the country with the most to gain or lose on law of the sea issues – are sitting on the sidelines. As I mentioned, the Commission on the Limits of the Continental Shelf has received submissions from over 40 countries without the participation of a U.S. commissioner. Recommendations made in that body could create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect and advance our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Only as a party can we exert the level of influence that reflects our status as the world’s foremost maritime power.
The case for U.S. ratification of the Law of the Sea treaty is straightforward:
The treaty protects our national security. By improving access and transit rights for our ships, aircraft and submarines, the Law of the Sea treaty facilitates timely movement of U.S. forces throughout the world. Adm. Clark and all living former chiefs of naval operations have endorsed the treaty. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, wrote last month the treaty "remains a top national security priority."
The treaty protects our commercial interests. Provisions on coastal state control of the continental shelf, for example, help provide the certainty crucial to capital-intensive deepwater projects. The American Petroleum Institute, the International Association of Drilling Contractors and the National Ocean Industries Association have all called for treaty approval.
The treaty protects the ocean environment. Provisions addressing marine pollution and fisheries help promote conservation of scarce marine resources. The World Wildlife Fund, National Environmental Trust and Oceans Conservancy, among others, support the agreement.
These factors have led the Bush administration not only to support the Law of the Sea treaty, but to identify it as one of only five treaties for which Senate approval is "urgent." Officials from the Navy, Coast Guard, Office of the Secretary of Defense, State Department and Commerce Department have all testified in support of ratification.
However, the United States is likely already bound by the “common heritage of mankind” doctrine under principles of customary law.61 Customary law is generally thought of as widespread systematic practice that is backed by opinio juris, or the belief that one is acting in accordance with legal obligation.62 Because these are not objectively measureable qualities, customary law is not always easy to identify. The Convention, including its provisions regarding the “common heritage of mankind” principle, is considered to represent the customary law of the seas, supported in part by its widespread ratification.63 Under general principles of international law, customary law is binding on all states, including the United States.64 The United States, thus, is bound by those provisions of the Convention that are deemed customary law, which likely include the “common heritage of mankind” principle.
Ultimately, the Convention settled on an outer limit for the continental shelf of 200 miles,38 which satisfied many geographically disadvantaged states (those that do have a naturally wide shelf), but also allowed special considerations for states with naturally broad shelves by granting them a potentially deeper shelf of up to 350 miles instead of the standard 200.39 With the exception of the special considerations, Convention provisions limiting the continental shelf echoed those in the 1964 Convention on the Continental Shelf which set the limit as 200 miles and gave coastal states exclusive rights over its continental shelf.40 The United States is a party to the 1964 Convention on the Continental Shelf and thus bound by these limits.41 However, if the United States qualifies for the special considerations provided for in the Convention for states with naturally broader shelves, it has the potential to increase its continental shelf.42