Evidence: Recently Added
To these I might add that other coastal states that have yet to become party to the Convention and its implementing agreements are more likely to follow suit once we are party to all of them. Canada ratified the Convention within weeks after the Bush Administration testified in support of the Convention last fall. Several weeks after that, the European Union and its 15 member states became party to the 1995 Agreement on the Implementation of the Provisions of the Law of the Sea Convention regarding Straddling Fish Stocks and Highly Migratory Fish Stocks, to which the United States is already party but which is not as widely ratified as the Convention. With both Europe and North America firmly aligned on the essential elements of the superstructure of the modern law of the sea, it is more likely that others can be encouraged to come along soon.
The “Preeminent Global Power.” The tenth, and final, factor bearing upon the Clinton administration’s decision to sign the Agreement and recommend accession to the Convention was its desire for the nation to retain leadership in maritime affairs generally. Rear Admiral Sehachte went so far as to say that “as the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role in achieving a widely accepted international order to regulate and safeguard the many and diverse activities and interests regarding the world’s oceans."60
The Clinton administration realized that US. refusal to accede to a Convention widely regarded as one of the most important international agreements ever negotiated would raise fundamen tal questions regarding not only the future legal regime applicable to the world's oceans but also the overall role of the United States. By actively promoting “leadership for peace” in the politically and economically important matter of rationalizing maritime laws and regulations, the United States hoped to be able to ensure itself a major role in shaping a posthegemonic global order.61 Conversely, the White House recognized that if the United States remained outside the Convention, it would not be in a position to influence the treaty’s further development and interpretation, transition, and refinement.62 More broadly, continued mute opposition seemed likely not only to jeopardize important national interests in the law of the sea but also to be seen as an implicit rejection ofthe very goal ofworld order through international law. In even less charitable eyes, it might be construed as a belief that unilateralism is a viable policy when backed by military force.63 It appeared that full participation in the Convention offered an opportunity to exercise world leadership in a context far broader than had been possible during the Cold War.
A handful of opponents continue to voice their concerns about the impact of acces- sion on U.S. sovereignty and security. Doug Bandow, a special assistant to President Reagan in the 1980s who served on the U.S. Law of the Sea delegation, continues to call for the scuttling of the Treaty.93 Bandow cautions against what he refers to as a “redistributionist bent” embodied in Part XI in the form of a portion of deep seabed royalties being distributed to mining and nonmining nations alike. He also notes that the United States ought to stand against the creation of “new oceans bureacracy.”94 At the same time he derides the advocates’ call for Treaty accession as a means of manifesting U.S. leadership. Leadership, suggests Bandow, can be illustrated just as easily by saying no as by saying yes.
Bandow’s arguments fail to carry the same weight today as they did ten years ago. The oceans bureaucracy, as he calls it, is not a prospect that might be stemmed. The Law of the Sea Tribunal is up and running. Judges have been appointed and are hearing and adjudicating cases. The Commission on the Limits of the Continental Shelf is estab- lished and employing Convention principles as required by the Convention.95 As noted above, the United States is currently engaged in mapping its own continental shelf em- ploying Convention principles.96
This is just a sampling of excessive maritime claims and their sequels, but it represents the financial and diplomatic costs, as well of the risks, associated with the FON program. The case became compelling that such costs and risks would be substantially less under a specific, binding treaty.55 Two noted experts on the law of the sea, 1. Ashley Roach and Robert W. Smith, presented the position of the State Department in 1994: “Unilateral U.S. demonstrations of resolve—especially operational assertions—are sometimes viewed as antagonistic. They risk the possibility of military confrontation and of political costs that may be deemed unacceptable, with prejudice to other US. interests, including worldwide leadership in ocean affairs and support for use of cooperative, international solutions to mutual problems?“
“Egregious Excessive Claims.” A ninth reason that led the United States toward accession to the Convention was the growing political and military cost of the Freedom of Navigation (FON) Program. This effort, initiated by the Carter administration in 1979 and continued under presidents Reagan, Bush, and Clinton, combined diplomatic and operational (not solely naval) means to discourage claims violating the navigational freedoms asserted by the 1982 Convention—freedoms that the US. supported even though, for other reasons, it had not signed the treaty.49 The FON program involved (and at this writing still does) naval exercises and consultations, bilateral and multilateral, with other governments to promote maritime stability, conformance with international law, and adherence by all nations to the customary rules and international law reflected in the Convention.
With respect to the underlying objective of promoting stability in the law of the sea, four main advantages of widespread, including U.S., ratification have been identified:
- Treaties are perceived as binding. Legislators, administrators, and judges are more likely to feel bound to respect treaty obligations. … Even nonparties are more likely to be cautious about acting a manner contrary to a widely ratified Convention; if they do, they are more likely to be isolated when their claims are challenged.
- Treaty rules are written. Treaty rules are easier to identify and are often more determinate than customary law rules. Even if one argues that a customary law rule is identical to a treaty rule, that argument in and of itself is elusive and hard to prove. Even a nonlawyer reading the text of a binding treaty knows he or she is reading a binding legal rule, and can often form some appreciation of what the rule may require.
- Compulsory arbitration. Parties to the Law of the Sea Convention are bound to arbitrate or adjudicate most types of unresolved disputes regarding the interpretation or application of the Convention. This can help forestall questionable claims in the first place. Perhaps more importantly, it provides an option for responding to unilateral claims that may well be less costly than either acquiescence or confrontation. Because states are not bound to arbitrate or adjudicate disputes absent express agreement to do so, this benefit of the Convention … is dependent upon ratification.
- Long-term stability. Experience in [the twentieth] century has shown that the rules of the customary law of the sea are too easily undermined and changed by unilateral claims of coastal states. Treaty rules are hard to change unilaterally. At the same time, the Law of the Sea Convention establishes international mechanisms for ordered change that promote rather than threaten the long-term stability of the system as a whole.
I hope the Committee will also bear in mind that the Law of the Sea negotiations were a long-term bipartisan effort to further American interests that engaged high level attention in successive Administrations and distinguished members of both Houses of Congress. President Nixon had the vision to launch the negotiations and establish our basic long-term strategy and objectives. President Ford solidified important trends in the negotiations by endorsing fisheries legislation modeled on the emerging texts of the Convention. President Carter attempted to induce the developing countries to take a more realistic approach to deep seabed mining by endorsing unilateral legislation on the subject. President Reagan determined both to insist that our problems with the deep seabed mining regime be resolved and to embrace the provisions of the Convention regarding traditional uses of the oceans as the basis of U.S. policy. President George H.W. Bush seized the right moment to launch informal negotiations designed to resolve the problems identified by President Reagan. President Clinton’s Administration carried that effort through to a successful conclusion. And now the Administration of President George W. Bush has expressed its support for Senate approval of the Convention and the 1994 Implementing Agreement.
Naval Mobility. A seventh factor that underlay the new United States position on the Convention was the global security environment, specifically the increased importance of the oceans connecting the nation, its allies, and its major interests. Diminishing access to overseas bases, the many parts of the world that require naval presence because of continuing instability, and the growing maritime power of many developing nations with apparent regional ambitions pointed to the increasing importance for the United States of naval mobility. An essential element of such mobility is assurance that sea and air lanes of communication will remain open as a matter of international legal right—not at the sufferance of coastal and island nations along the route or in the area of operations.38
In the last two decades there had been a remarkable number of naval confron tations and boundary demarcation or fishing disputes: from 1974 to 1990, at least thirty-seven major demarcation disputes, fifteen noteworthy fishing disagreements, and thirty-one naval conflicts. Eighty-three percent of all US. military responses from 1946 to 1991 had involved naval forces, about half of them solely naval ones. Since the 1986 Goldwater-Nichols Act, with its emphasis on joint operations, fewer operations have been exclusively naval in character, but an even higher proportion—95 percent—have involved naval units. Additionally, the focus of these efforts has overwhelmingly been in littoral waters. In all 270 instances of the employment of naval forces in crisis response from 1946 to 1991, they were used not to counter other naval forces but rather to oppose threats on land. The naval forces therefore had to operate in coastal waters, not the high seas, to project power from the sea onto the land.”
Leadership in Environmental Concerns. A fourth reason for the change in the American attitude toward the Convention was a new global attitude toward management of the environment. Part XII of the Convention deals extensively with the protection and preservation of the marine environment, covering a wide array of issues, from general principles to global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liability.31 The inclusion of strong environmental protection measures in the Convention was an earlier and enduring goal of the United States. In the decade following its completion, the U.S., along with many other nations, became even more interested in preserving the environment, to the point that such concerns in many cases supplanted economic considerations.32 Given that Part XII creates an effective, if diffuse, international mechanism for controlling marine pollution and establishes a symbiotic relationship between the Convention and other issue-specific agreements, the Clinton administration decided that agreeing to the Convention would ensure a stable regime for environmental protection.33
Our Navy can better protect the United States and the American people if we join the Law of the Sea Convention.
The Law of the Sea Convention is the bedrock legal instrument for public order in the world’s oceans. It codifies, in a manner that only binding treaty law can, the navigation and overflight rights, and high seas freedoms that are essential for the global strategic mobility of our Armed Forces, including:
- The Right of Innocent Passage, which allows ships to transit through foreign territorial seas without providing the coastal State prior notification or gaining the coastal State’s prior permission.
- The Right of Transit Passage, which allows ships, aircraft, and submarines to transit through, over, and under straits used for international navigation and the approaches to those straits.
- The Right of Archipelagic Sealanes Passage, which, like transit passage, allows transit by ships and aircraft through, over, and under normal passage routes in archipelagic states, such as Indonesia.
- The right of high seas freedoms, including overflight and transit within the Exclusive Economic Zone.
Innocent Passage, Transit Passage, and Archipelagic Sealanes Passage are the crown jewels of navigation and overflight. These rights are vital not just to our Navy, but also to our Army, Air Force, Marine Corps, and Coast Guard. They make it possible to move vast quantities of war materiel through the Straits of Gibraltar, Singapore, Malacca, and Hormuz and into the Arabian Gulf to Soldiers, Sailors, Airmen, and Marines in Iraq. These rights permit us to move our submarine fleet through choke points to conduct all missions. They permit the United States Air Force to conduct global missions without requirement to overfly foreign national airspace. And they ensure the uninterrupted flow of commerce to and from our shores.