Evidence: Recently Added
Notwithstanding the fact that the navigational freedoms and transit rights we currently enjoy are embodied in customary international law, as a party to the Convention, the United States would, however, be in a stronger leadership position to assert its rights to use the oceans for navigation and overflight. For example, in making excessive claims, some coastal states contend that the navigational and overflight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it. By becoming a party to the Convention we can deprive those states of this argument. This is not to suggest that countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention. Coastal states make excessive claims for a variety of reasons— because they believe such claims to be in their national interest; because they feed domestics politics; and, because they believe they can enforce those claims or that other nations will, for lack of resources and capability, acquiesce in those claims. The Administration believes, however, that with the United States as a party, fewer states are likely to view such claims as sustainable. As a party, our diplomatic and operational challenges to excessive claims will carry greater weight.
Military operations since September 11—from Operation Enduring Freedom to Operation Iraqi Freedom to the Global War on Terrorism —have dramatically increased our global military requirements. U.S. Forces are continuously forward deployed worldwide to deter threats to our national security and are in position to respond rapidly to protect U.S. interests, either as part of a coalition or, if necessary, acting independently. U.S. military strategy envisions rapid deployment and mobility of forces overseas anytime, anywhere. A leaner, more agile force with a smaller overseas footprint places a premium on mobility and independent operational maneuver. Our mobility requirements have never been greater.
Future threats will likely emerge in places and in ways that are not yet fully clear. For these and other undefined future operational challenges, U.S. naval and air forces must take maximum advantage of the customary, established navigational rights that the Law of the Sea Convention codifies. Sustaining our overseas presence, responding to complex emergencies, prosecuting the global war on terrorism, and conducting operations far from our shores are only possible if military forces and military and civilian logistic supply ships and aircraft are able to make unencumbered use of the sea and air lines of communication. This is an enduring principle that has been in place since the founding of our country.
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. Being a party to the Convention is even more important because the trend among some coastal states is toward limiting historical navigational and overflight freedoms. Would-be adversaries, or nations that do not support the particular missions or activities we undertake, will be less likely to dispute our lawful use of the sea and air lanes if we are parties to the Convention. We support the Convention because it protects military mobility by codifying favorable transit rights in key international straits, archipelagic waters, and waters adjacent to coastal states where our forces must be able to operate freely.
In fact, many of the nations making claims that the U.S. considered excessive were asserting that the Convention was a legal contract, the rights and benefits of which were not necessarily available to non-parties—such as the United States. The Continual counter-assertion that these rights and benefits were already embodied in customary international law was appearing more and more difficult to sustain. In testimony before the Senate Foreign Relations Committee in the summer of 1994, the chairman of the Department of Defense Task Force on the Law of the Sea Convention, John McNeill, pointed to the likelihood of “increasingly egregious excessive claims” by many coastal states as a critically important reason to seek U.S. accession to the Convention.57 The danger of continuing to rely on the FON program was summed up by Rear Admiral William Schachte: “The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order.”58 Conversely, accession to the Convention, by the United States would, it was hoped, convince states making excessive claims to retract them and, perhaps more importantly, keep in check their natural desire to extend sovereignty to offshore areas, when it would be inimical to navigation and overflight rights.”
More rapid development of the oil and gas resources of the United States continental shelf beyond 200 nautical miles. The United States oil and gas industry is poised in its technology to begin development of the huge continental shelf of the United States beyond 200 miles (approximately 15% of our total shelf). But uncertainties resulting from U.S. non-adherence to the Convention will delay the substantial investment necessary for development in these areas. Moreover, U.S. non-adherence is causing the United States to lag behind other nations, including Russia, in delimiting our continental shelf. Delimitation of the shelf is an urgent oceans interest of the United States;13
The Convention provides a reasonable compromise between the vast majority of nations whose continental margins are less than 200 miles and those few, including the U.S., whose continental shelf extends beyond 200 miles, with a modest obligation to share revenues from successful minerals development seaward of 200 miles. Payment begins in year six of production at the rate of one percent and is structured to increase at the rate of one percent per year to a maximum of seven percent. Our understanding is that this royalty should not result in any additional cost to industry. Considering the significant resource potential of the broad U.S. continental shelf, as well as U.S. companies’ participation in exploration on the continental shelves of other countries, on balance the package contained in the Convention, including the modest revenue sharing provision, clearly serves U.S. interests.
Offshore petroleum production is a major technological triumph. We now have world record complex development projects located in 5,000-6,000 feet of water in the Gulf of Mexico which were thought unimaginable a generation ago. Even more eye- opening, a number of exploration wells have been drilled in the past three years in over 8,000 feet of water and a world record well has been drilled in over 9,000 feet of water. New technologies are taking oil explorers out more than 200 miles offshore for the first time, thus creating a more pressing need for certainty and stability in delineation of the outer shelf boundary. Before the LOS Convention there were no clear, objective means of determining the outer limit of the shelf, leaving a good deal of uncertainty and creating significant potential for conflict. Under the Convention, the continental shelf extends seaward to the outer edge of the continental margin or to the 200-mile limit of the EEZ, whichever is greater, to a maximum of 350 miles. The U.S. understands that such features as the Chukchi Plateau and its component elevations, situated to the north of Alaska, are not subject to the 350-mile limitation. U.S. companies are interested in setting international precedents by being the first to operate in areas beyond 200 miles and to continue demonstrating environmentally sound drilling development and production technologies.
Myth: The United States could and should renegotiate a new law of the sea agreement, confined to the provisions on navigational freedoms.
Reality: Assuming, for the sake of argument, that this were a desirable outcome, other countries would have no reason or incentive to enter into such a negotiation. The Convention is widely accepted, having been joined by over 150 parties including all other major maritime powers and most other industrialized nations. Those parties are generally satisfied with the entirety of the treaty and would be unwilling to sacrifice other provisions of the Convention, such as benefits associated with exclusive economic zones and sovereign rights over the resources they contain, as well as continental shelves out to 200 nautical miles and in some cases far beyond. And parties that would like to impose 20 new constraints on our navigational freedoms certainly would not accept the 1982 version of those freedoms.
Joining is a win/win proposition. We will not have to change U.S. laws or practices, or give up rights, and we will benefit in a variety of ways. The United States already acts in accordance with the Convention for a number of reasons:
- First, as noted, we are party to a group of 1958 treaties that contain many of the same provisions as the Convention.
- Second, the United States heavily influenced the content of the 1982 Convention, based on U.S. law, policy, and practice.
- Finally, the treaty has been the cornerstone of U.S. oceans policy since 1983, when President Reagan instructed the Executive Branch to act in accordance with the Convention’s provisions with the exception of deep seabed mining.
Thus, we are in the advantageous position in the case of this treaty that U.S. adherence to its terms is already time-tested and works well.
Fifth and finally, it does seem that UNCLOS reflects a larger sea-change in how the international community, and legitimate international governing bodies, can create frameworks for cooperative action, or at least limit the damage of non-cooperative action. As such, by including dispute-resolution mechanisms in future framework agreements, IGOs like the United Nations can productively expand into new or emerging areas of global governance. Accordingly, it does appear that the Arctic Scramble, and maritime disputes elsewhere, need not recall the imperial division of Africa. Rather, there appears to be widespread recognition and acceptance of UNCLOS as the legitimate framework for establishing, defining, deciding, and resolving disputes on maritime territorial issues. Merely by existing and coming into legal standing with ratification, UNCLOS delegitimizes the traditional power-politics methods of settling the disputes. Instead, UNCLOS is overtly designed to handle these events. By defining the rules of the road, and by defining where the road begins and ends, UNCLOS is the discursive legisla- tor, judge and policeman on the maritime highway. And no one, as yet, is seriously challenging that role, at least in the Arctic.