Evidence: Recently Added
The specific argument that the convention would pre- vent the U.S. from using its submarines to collect intelligence is fallacious. Several sources, including the minority views in the Senate Committee on Foreign Relations, note that Article 20 of the convention requires submarines and other underwater vehicles to navigate on the surface and show their flags when engaged in innocent passage. This is correct, so far as it goes. But the minority report then concludes that this would not especially during the Cold War—in gathering intelligence close to foreign shorelines.
What the minority report and other critics fail to men- tion is that the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States has long been party, contains exactly the same restriction.15 Moreover, the collection of intelligence in any guise within the territorial sea does not fall within the ambit of innocent passage. The United States would never accept foreign submarines or foreign warships engaging in intelligence-gathering operations in the ter- ritorial sea off of San Diego or Norfolk. Indeed, when President Reagan signed a proclamation extending the U.S. territorial sea to 12 nautical miles on December 27, 1988, consistent with the convention, one of the first things that the Coast Guard did was to advise a Soviet military vessel gathering intelligence just a few miles off of Pearl Harbor to leave the area immediately.16
The U.S. military and intelligence communities are well aware that the convention would have a positive impact on our national security. Moreover, as Senator Richard Lugar, at the time of this writing, ranking minority member of the Foreign Relations Committee, has argued, it would be unprecedented for the Senate to deny to our nation’s military and national security leadership a tool that they have unanimously claimed that they need, especially during a time of war.17
The convention promotes the freedom of navigation and overflight by which international shipping and transportation fuel and supply the global economy. Some 90 percent of global trade tonnage, totaling over $6 trillion in value, including oil, iron ore, coal, grain, and other commodities, building materials, and manufactured goods, travels on and over the world’s oceans and seas each year.12 By guaranteeing merchant vessels and aircraft the right to navigate on, over, and through international straights, archipelagic waters, and coastal zones, the provisions of UNCLOS promote dynamic international trade.
At the same time, UNCLOS encourages international cooperation to enhance the safety and security of all ocean-going ships. Whether it involves lumber and winter wheat shipped from the Pacific Northwest to Japan; high-quality, low-cost goods from Singapore to Long Beach; or oil from the Persian Gulf to Europe; free, safe, and secure commercial navigation and flights provide great economic and security benefits to all of us. That is the key reason the U.S. Chamber of Commerce, shipping industry, aviation industry, and other international trade groups have called for immediate accession to the convention.
The United States could use the provisions of UNCLOS effectively to combat excessive maritime claims, which can interfere with narcotics interdiction and other law enforcement efforts. Several critical coastal states continue to claim territorial seas of 200 nautical miles, in violation of the convention’s 12-nm limit. These countries see our law enforcement operations in their claimed territorial seas as violations of their sovereignty and are either reluctant or refuse to cooperate with proposed actions against vessels engaged in drug-smuggling that are interdicted in these disputed areas.
Since we are not yet party to UNCLOS, it is very difficult for us to credibly argue that they must give up these excessive claims. The result is that counter-drug bilateral agreements with these nations are difficult, interdiction efforts in their claimed territorial seas are hampered, and our negotiating ability to change the situation is compromised.
UNCLOS also guarantees the right to operate and conduct exercises in international waters beyond the territorial sea. Prior to the convention, many coastal states were insisting on the right to exercise complete sovereignty out to as far as 200 miles or more from their land territory. While the convention’s provisions establish the right of coastal states to claim a 200-nm exclusive economic zone (EEZ), they may only exercise sovereign rights over economic activities, such as fishing, the exploration for and production of oil and gas from under the seabed, and the construction of artificial islands. Under the convention, coastal states may not restrict freedom of navigation within the EEZ, including military training exercises, law enforcement activities, and overflight.
These provisions are of great benefit to our national security and global mobility interests. In addition to the global reach of the U.S. Navy and Air Force, Coast Guard units patrol the Persian Gulf, the Caribbean Sea, the eastern Pacific Ocean, and other vital maritime areas. There is a disturbing movement among some coastal states to attempt to transform their EEZs into the equivalent of a territorial sea, in which they may limit critical navigational freedoms. For example, the U.S. Navy is concerned about apparent government attempts in China and Iran to assert excessive control over foreign operations within the exclusive economic zone. The United States must not sit on the sidelines while the international community is working out the nuances of how UNCLOS is to be interpreted and applied.
A number of States, in ratifying the Convention, have chosen to declare that they do not accept procedures for disputes concerning military activities. As of October 16, 2001, those States include Cape Verde, Chile, France, It- aly, Portugal, the Russian Federation, Ukraine, and Tunisia."258 Others, such as India, Pakistan and The United Kingdom, have reserved judgment, per- haps waiting to make a declaration if and when the issue presents itself.259
Given the language of Article 298, and the concomitant proclivity on the part of maritime nations---especially the United States, which is not yet even a party to the Convention-to treat their naval vessels as sovereign entities ex- empt from the normal obligations of commercial vessels plying the seas, it is highly probable that these maritime nations would invoke Article 298 in every case.260 Thus, when disputes arise regarding the military activities of a flag State in the EEZ of a coastal State, it is extraordinarily unlikely that the flag state would submit to the dispute resolution mechanisms of the Convention.
In Working with Other Nations, a U.S. Navy strategy white-paper, Navy strategists suggest that multi-lateral, combined naval operations with friendly nations is the preferable way to further political, economic, and se- curity objectives in an economically and politically interdependent world.261 United States national security continues to require forward naval presence to ensure that information, capital, raw material, and manufactured goods flow freely across borders and oceans.262 One way to secure forward naval presence in foreign EEZs without contention and confrontation is by "establishing relations with security partners in peacetime before the onset of a crisis."263 A useful legal tool in support of this strategy is to create consensus on the law through multi-lateral cooperation and agreement.264
To the extent the United States continues to have a need for unrestricted, legal access for its naval forces up to the territorial waters of all the countries of the world, we believe it should continue to use vehicles such as the Freedom of Navigation Program to assert these rights, but should also supplement this with other arrangements and understandings with foreign security partners. A sufficiently dense network of such arrangements and understandings, followed by consistent practice, will ensure the vitality of customary norms. In the end, it is our view that this is an approach that will ensure the best balance among an ongoing network of lawful naval and military activities, stable international law, freedom of navigation for ocean-going commerce, and is an approach that will protect interests common to all in an internationally interdependent world.
It is difficult to overstate the extent to which this Convention has become more than a Treaty and has become, instead, an international state of mind. It created new international law, codifying much of what had become customary law of the sea, and established new norms in the negotiation of multilateral, international treaty agreements. For many emerging nations, it was the first major international treaty negotiation that they had ever participated in. According to former United Nations Secretary-General Javier Perez de Cuellar, the 1982 United Nations Convention on the Law of the Sea embodies the will of an overwhelming majority of nations from all parts of the world, at different levels of development, and having diverse geographical characteristics.8
Security. As the world’s foremost maritime power, our security interests are intrinsically linked to freedom of navigation. We have more to gain from legal certainty and public order in the world’s oceans than any other country. Our forces are deployed throughout the world, and we are engaged in combat operations in Central and Southwest Asia. The U.S. Armed Forces rely on the navigational rights and freedoms reflected in the Convention for worldwide access to get to the fight, sustain our forces during the fight, and return home safely, without permission from other countries.
In this regard, the Convention secures the rights we need for U.S. military ships and the commercial ships that support our forces to meet national security requirements in four ways:
- by limiting coastal States’ territorial seas -- within which they exercise the most sovereignty -- to 12 nautical miles;
- by affording our military and commercial vessels and aircraft necessary passage rights through other countries’ territorial seas and archipelagoes, as well as through straits used for international navigation (such as the critical right of submarines to transit submerged through such straits);
- by setting forth maximum navigational rights and freedoms for our vessels and aircraft in the exclusive economic zones of other countries and in the high seas; and
- by affirming the authority of U.S. warships and government ships to board stateless vessels on the high seas, which is a critically important element of maritime security operations, counter-narcotic operations, and anti-proliferation efforts, including the Proliferation Security Initiative.
Myth: The Convention gives the UN its first opportunity to levy taxes.
Reality: Although the Convention was negotiated under UN auspices, it is separate from the UN and its institutions are not UN bodies. Further, there are no taxes of any kind on individuals or corporations or others. Concerning oil/gas production within 200 nautical miles of shore, the United States gets exclusive sovereign rights to seabed resources within the largest such area in the world. There are no finance-related requirements in the EEZ. Concerning oil/gas production beyond 200 nautical miles of shore, the United States is one of a group of countries potentially entitled to extensive continental shelf beyond its EEZ. Countries that benefit from an Extended Continental Shelf have no requirements for the first five years of production at a site; in the sixth year of production, they are to make payments equal to 1% of production, increasing by 1% a year until capped at 7% in the twelfth year of production. If the United States were to pay royalties, it would be because U.S. oil and gas companies are engaged in successful production
16 beyond 200 nautical miles. But if the United States does not become a party, U.S. companies will likely not be willing or able to engage in oil/gas activities in such areas, as I explained earlier.
Concerning mineral activities in the deep seabed, which is beyond U.S. jurisdiction, an interested company would pay an application fee for the administrative expenses of processing the application. Any amount that did not get used for processing the application would be returned to the applicant. The Convention does not set forth any royalty requirements for production; the United States would need to agree to establish any such requirements.
In no event would any payments go to the UN, but rather would be distributed to countries in accordance with a formula to which the United States would have to agree.