Evidence: Recently Added
Finally, there is technology transfer, one of the most odious redistributionist clauses of the original convention. The mandatory requirement has been discarded, replaced by a duty of sponsoring states to facilitate the acquisition of mining technology "if the Enterprise or developing States are unable to obtain" equipment commercially.29 Yet the Enterprise and developing states would find themselves unable to purchase machinery only if they were unwilling to pay the market price or were perceived as being unable to preserve trade secrets. The clause might be interpreted to mean that industrialized states, and private miners, whose "cooperation" is to be "ensured" by their respective govern- ments, are then responsible for subsidizing the Enterprise's acquisition of technology.30 Presumably, the United States and its allies could block such a proposal in the Council, but again, it is hard to predict future legislative dynamics and potential logrolling in an obscure UN body.
Opponents seem to think that if the U.S. declines to ratify the Law of the Sea, it will evaporate into the ocean mists. They seem to think that multi-lateral responsibilities in this case can be avoided if we stay out of the Convention. Unlike some treaties, such as the Kyoto Agreement and the Comprehensive Test Ban Treaty, where U.S. non-participation renders the treaty irrelevant or inoperable, the Law of the Sea will continue to form the basis of maritime law regardless of whether the U.S. is a party. International decisions related to national claims on continental shelves beyond 200 miles from our shore, resource exploitation in the open ocean, navigation rights, and other matters will be made in the context of the treaty whether we join or not.
Consequently, the United States cannot insulate itself from the Convention merely by declining to ratify. There are 145 parties to the Convention, including every major industrialized country. The Convention is the accepted standard in international maritime law. Americans who use the ocean and interact with other nations on the ocean, including the Navy, shipping interests, and fisherman, have told me that they already have to contend with provisions of the Law of the Sea on a daily basis. They want the United States to participate in the structures of Law of the Sea to defend their interests and to make sure that other nations respect our rights and claims.
The debate on the Convention would be just an interesting political science case study if it were not for the fact that there are serious consequences to not ratifying it. The Convention comes open for amendment for the first time in November of this year. If the United States is not party to the Convention at that time, we will not have a seat at the table to protect against proposed amendments that would roll back Convention rights we fought hard to achieve.
Some nations may press for restrictions on the movement of naval or commercial vessels near their coastline. Others may pursue the right to exclude nuclear-powered vessels from their territorial waters. (Under the Convention, a ship's propulsion system cannot be used as an argument to restrict its movements.) As a party, we will be in a very strong position to prevent harmful amendments.
In addition, the Convention's Commission on the Limits of the Continental Shelf will soon begin making decisions on claims to continental shelf areas that could impact the United States' own claims to the area and resources of our broad continental margin. Russia is already making excessive claims in the Arctic. Unless we are party to the Convention, we will not be able to protect our national interest in these discussions.
We also should remember that the United States already has been abiding by the Law of the Sea Convention since President Reagan's 1983 Statement of Oceans Policy. In addition, the United States is a party to the 1958 Convention on the Territorial Sea and Contiguous Zone, a predecessor to the Law of the Sea Convention. Many of the provisions of the 1958 Convention are less advantageous to the United States than comparable provisions in the Law of the Sea Convention.
Given that the United States has been abiding by all but one provision of the Treaty for the last 21 years and that we are already a party to a less advantageous international agreement on ocean law, dire predictions about the hazards to our sovereignty of joining the Law of the Sea Convention ring particularly hollow.
The Law of the Sea Convention establishes a legal framework that has direct impact on the American shipowning community and all Americans. In 1914, the maritime world was a comparatively simple one; ships flying a particular flag were manned by nationals from that nation, were insured there and classed by the national class society. They were most likely built there and had equipment manufactured there. The traditional law of the sea was also simple to apply. Today, the situation is more complex. Ships owned by one company can fly the flags of several different nations, employ crew from various nations with mixed crews being more prevalent than single-national ships, be classed by any one of a number of societies, be insured in any number of venues and have a multiple of other international mixes involving equipment and building. This situation has evolved in response to the needs of the industry to increase efficiency. As we have increased our efficiency, we have provided a lower and lower cost service to our customers. Our customers are the shippers of the world and their customers are the consumers. Over ninety-five percent of the goods shipped into and out of the United States go by sea. On average, four hundred ships a day, from literally all flag nations of the world, arrive in U.S. ports. The people of the United States have benefited from the actions of the maritime industry and we in the industry have benefited from a uniform legal framework. One consistent comment we make to the Congress, and the various legislative bodies around the world is that we need to have a uniform set of rules to follow. If each nation develops their own rules or interprets existing regulations in a manner substantially different from others, chaos exists for the maritime community. The United States has consistently responded to creative interpretations and has taken the lead in developing rules that meet U.S. needs and the needs of other nations. The world looks to our leadership in these matters and we have responded vigorously and positively to that expectation. The credibility of the U.S. in international fora where these agreements are made depends on it.
Still, treaty supporters point out, the LOST, having gained more than the necessary 60 ratifications from UN member nations, will go into effect in November 1994 irrespective of Washington's ratification decision. However, nations cannot be held to surrender their rights because other states have ratified a treaty. Put bluntly, it matters little whether or not Djibouti, Fiji, or Zambia approves of American mining consortia operating in the Pacific. An ISA without any industrialized states as members would be about as effective as the "international regime" that is supposed to be established under the UN Moon Treaty, which--I am not making this up, to quote humorist Dave Barry--formally took effect 10 years ago in July.13
A decentralized and relatively informal system, perhaps with a small international office, that provided for mutual recognition of mine sites and arbitration of conflicts would offer adequate security of tenure for mining companies. In fact, the United States and the Europeans implemented that type of strategy when they rejected the LOST.14 Other nations, particularly those like China, India, and South Korea, which have indicated an interest in seabed mining, could be invited to join such a system as well. That approach would operate with minimal bureaucracy and cost and would be confined to essentials--most important, developing a stable investment regime.
Some advocates of the LOST have argued that a universal accord would promote seabed mining. A truly market-oriented accord might do so; not, however, a system that includes the ISA, the Enterprise, the Council, revenue sharing, international royalties, Western subsidies for the Enterprise, a Council veto for land-based minerals producers, and the like. Yet all of those anti-development provisions remain in the revised text.
That the treaty would favor political over productive activity should come as no surprise. The LOST was created in a different era. It was intended to inaugurate large and sustained wealth transfers from the industrialized states. The structure was therefore crafted to advance ideological, not economic, goals. Since then, however, most developing states have moved away from collectivism, and the promise of undersea mining has largely evaporated. Yet the original collectivist framework remains. Even the State Department acknowledges that the new "agreement retains the institutional outlines of Part XI," which contains the seabed mining provisions.10 The treaty has become a solution in search of a problem.
In conclusion, from an energy perspective we see potential future pressures building in terms of both marine boundary and continental shelf delineations and in marine transportation. We believe the LOS Convention offers the U.S. the chance to exercise needed leadership in addressing these pressures and protecting the many vital U.S. ocean interests. Notwithstanding the United States' view of customary international law, the U.S. petroleum industry is concerned that failure by the United States to become a party to the Convention could adversely affect U.S. companies' operations offshore other countries. In November 1998, the U.S. lost its provisional right of participation in the International Seabed Authority by not being a party to the Convention. At present there is no U.S. participation, even as an observer, in the Continental Shelf Commission--the body that decides claims of OCS areas beyond 200 miles--during its important developmental phase. The U.S. lost an opportunity to elect a U.S. commissioner in 2002, and we will not have another opportunity to elect a Commissioner until 2007.
The United States should also be in a position to exercise leadership and influence on how the International Seabed Authority will implement its role in being the conduit for revenue sharing from broad margin States such as the U.S., yet the U.S. cannot secure membership on key subsidiary bodies of the Seabed Authority until it accedes to the Convention. Clearly United States views would undoubtedly carry much greater weight as a party to the Convention than they do as an outsider. With 143 countries and the European Union having ratified the Convention, the Convention will be implemented with or without our participation and will be sure to affect our interests.
It is for these reasons that the U.S. oil and natural gas industry supports Senate ratification of the Convention at the earliest date possible.
Given the price of gasoline today, surely there is broad agreement that the United States needs to get on with the task of developing the oil and gas of our continental margins beyond 200 miles. Without adherence to the Convention that is unlikely to happen for years to come. The large investments that must be made to drill in deep water simply will not be made without legal certainty and security of tenure. Further, the United States has a crucial interest in protecting navigational freedom for the oil and gas brought to the United States that is so crucial for our economy. About 44 % of U.S. maritime commerce concerns petroleum and its products. To put this in further perspective, offshore oil and gas is now the world=s largest marine industry, with oil production alone in the range of $300 billion per year. For these and other reasons of relevance to our security interest in oil and gas, and the interests of our oil and gas industry, Mr. Paul L. Kelly, speaking on behalf of the American Petroleum Institute, the International Association of Drilling Contractors, and the National Ocean Industries Association, testified before the Senate Foreign Relations Committee"Statement of Paul L. Kelly: On the United Nations Convention on the Law of the Sea ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (6 quotes) ] and the Senate Environment and Public Works Committee that "the U.S. oil and natural gas industry supports Senate ratification of the Convention at the earliest date possible;"3"Statement of Paul L. Kelly: On the United Nations Convention on the Law of the Sea ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (6 quotes) ]
Myth: There has been inadequate consideration of the Law of the Sea Treaty and we need more time to study it.
Nonsense! Those who espouse this view fail to note that this is the second round of Senate hearings on the Convention. The first round was held in 1994 when the Convention was initially submitted to the Senate. The Senate, and the Country, has had a decade to study the Convention, and for several decades, since 1983, we have lived under the legal regime of everything but Part XI. I have an especially hard time in finding any sympathy for this position urging delay when it comes from spokesmen who were not heard calling for more consideration of the Convention for the full decade while the treaty languished before the Senate Foreign Relations Committee. Rarely has any Convention come before the Senate that is more fully understood in its impact and stakes for our Nation, and that has been more fully studied and debated – and, in real effect, lived under; and