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What is Law of the Sea?
The Convention on the Law of the Sea is an international treaty that sets environmental and commercial terms for use of the world’s oceans. It protects the ocean from environmental degradation, establishes guidelines for businesses that depend on the sea for resources, defines maritime zones, and preserves freedom of navigation. 155 nations have signed and ratified this treaty. The United States is virtually alone among industrialized nations in not having done so, though the U.S. has voluntarily abided by the terms of the treaty since 1983.
Why should the United States ratify this Treaty now?
We’re Stuck on the Sidelines
With 155 nations on board, the treaty is being implemented and decisions are being made that affect American interests even as the U.S. absents itself. The U.S. should ratify this treaty and secure itself a seat at the table to help promote the responsible use of the world’s oceans and set the oceanic rules of the road. The United States can not now participate in ongoing treaty revisions or key commissions -- including one that decides commercial claims in the extensive U.S. outer continental shelf.
The World’s Oceans are in Crisis.
Action is needed now to bolster protections for vulnerable coral reefs and marine animals, including dolphins, whales, sea turtles, skates and rays. Action is also needed to mitigate against oil pollution and the encroachment of invasive species, overexploitation of marine resources, and destruction of marine habitats.
Other Countries are Rushing to Take Advantage
Recent data on the melting of the Arctic ice cap has businesses and other governments rushing to claim rights to virgin oceanic territory and natural resources. In August 2007, Russia planted its national flag on the seabed beneath the North Pole. The Canadians and Danes are staking claims in the Arctic as well. Only nations who are party to the Convention can make such claims – or challenge the claims of others. Joining the convention would give the U.S. a seat at the table in negotiating how these resources will be preserved and used.
We’re Impotent to Challenge Other Countries’ Claims
While the U.S. is voluntarily abiding by the terms of the treaty, it is now impotent to take action when other nations do not. Joining the treaty would give the U.S. the right to call on other nations to live up to their responsibilities – including requiring coastal states to preserve marine life in their territorial waters.
We Should Work with Other Countries
Ratification would be a good way to show that the U.S. is willing to work with other countries in solving global problems. It would show a commitment to international partnerships which are not only crucial to U.S. efforts to meet its security challenges, but also to rehabilitating the U.S. international image. Right now, the U.S. is in the same league as Libya, Iran, Syria, and North Korea in having signed but not ratified this treaty.
Ratification Would Vastly Expand U.S. Territory
Ratification would bring 4.1 million square miles of ocean under U.S. jurisdiction – an area larger than the continental United States.
Ratification would Promote Energy Independence
The U.S. obtains 28 percent of its natural gas and almost as much of its oil production from the ocean’s outer continental shelf – an area that would be vastly expanded by ratification of this treaty.
Ratification would advance U.S. Military Objectives
Accession to the Convention would be a boon to the United States military, especially in the context of the war on terror. Ratification would ensure rights to navigate on and fly freely over the sea; thus, the U.S. Navy is among the strongest advocates of endorsing the Law of the Sea Treaty.
The U.S. Should Lead in Creating a Stable International Regime for the Oceans
As the world’s strongest maritime power and leader of global maritime commerce, the United States has a compelling national interest in maintaining a stable international regime for the oceans. Accession would powerfully and publicly reiterate the United States’ commitment to the rule of law as the basis of policy and action on the high seas.
Who Supports Ratifying the Law of the Sea Treaty?
Virtually all major environmental groups, including the World Wildlife Fund, Nature Conservancy, Natural Resources Defense Council, and the Scripps and Woods Hole oceanographic institutes.
All major U.S. ocean industry groups, including the American Sport fishing Association; the National Fisheries Institute; the oil and offshore drilling industries, including Chevron and Marathon Oil; undersea cable providers, including AT&T; and the World Shipping Council.
All major players in the U.S. government, including the Chairmen and Ranking Members of the Senate Foreign Relations and Armed Services Committees, and President Bush and his Secretary of the Navy. It is supported by all United States military branches and 16 former Cabinet Secretaries from both political parties.
- President George Bush: "Joining (the Law of the Sea Convention) will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain…promote U.S. interests in the environmental health of the oceans,” and “give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted."
- Senate Foreign Relations Committee Chairman, Joseph Biden (D-DE) : “Do we join a treaty that establishes a framework to advance the rule of law on the oceans, that is clearly in our military, economic, and environmental interests, and that has broad acceptance among the major maritime powers? Or do we remain on the outside, to the detriment of our national interests? I strongly believe that we should become a party to the Convention, and that any risks it poses are far outweighed by the benefits.”
- Senate Foreign Relations Committee Ranking Member, Richard Lugar (R-IN): "The Senate this year has an opportunity to plug a large hole in our national security structure by approving the Law of the Sea Treaty.”
- General Richard Myers, former Chairman of the Joint Chiefs of Staff: “The Convention remains a top national security priority…It supports efforts in the War on Terrorism by providing much-needed stability and operational maneuver space, codifying essential navigational and overflight freedoms.”
- The Environmental Community: The Natural Resources Defense Council, The World Wildlife Fund, The Nature Conservancy, Oceana, The Wildlife Conservation Society, The National Environmental Trust, Defenders of Wildlife, The Ocean Conservancy, Deep Search International, Deep Ocean Exploration and Research Inc., IUCN – US and the Marine Conservation Biology Institute together represent more than a million members, supporters and activists concerned with the conservation of marine resources both here in the United States and on the high seas. We believe prompt U.S. accession to the Convention is essential to the ability of the United States to exercise leadership in key upcoming debates and decisions on international fisheries policy, biodiversity conservation, and appropriate management of rapidly expanding human activity on the high seas.”
Recent Developments
The Senate Foreign Relations Committee endorsed ratification of the Law of the Sea Convention by a vote of 17-4 on October 31st, 2007. It is now up to the Senate leadership to take up this Treaty for Ratification.
Myths and Realities of the Convention on the Law of the Sea
Taken from the written testimony of John D. Negroponte, Deputy Secretary of State, before the Senate Foreign Relations Committee, 9/27/2007
Certain arguments against U.S. accession are simply inaccurate. And other arguments are outdated, in the sense that they may have been true before the deep seabed mining provisions were fixed and thus are no longer true. I would like to address some of these "myths" surrounding the Convention:
Myth: Joining the Convention would surrender U.S. sovereignty.
Reality: On the contrary. Some have called the Convention a "U.S. land grab." It expands U.S. sovereignty and sovereign rights over extensive maritime territory and natural resources off its coast, as described earlier in my testimony. It is rare that a treaty actually increases the area over which a country exercises sovereign rights, but this treaty does. The Convention does not harm U.S. sovereignty in any respect. As sought by the United States, the dispute resolution mechanisms provide appropriate flexibility in terms of both the forum and the exclusion of sensitive subject matter. The deep seabed mining provisions do not apply to any areas in which the United States has sovereignty or sovereign rights; further, these rules will facilitate mining activities by U.S. companies. And the navigational provisions affirm the freedoms that are important to the worldwide mobility of U.S. military and commercial vessels.
Myth: The Convention is a "UN" treaty and therefore does not serve our interests.
Reality: The Convention is not the United Nations – it was merely negotiated there, as are many agreements, and negotiated by States, not by UN bureaucrats. Further, just because a treaty was drawn up at the UN does not mean it does not serve our interests. For example, the United States benefits from UN treaties such as the Convention Against Corruption and the Convention for the Suppression of Terrorist Bombings. The Law of the Sea Convention is another such treaty that serves U.S. interests.
Myth: The International Seabed Authority (ISA) has the power to regulate seven-tenths of the Earth's surface.
Reality: The Convention addresses seven-tenths of the earth's surface; the ISA does not. First, the ISA does not address activities in the water column, such as navigation. Second, the ISA has nothing to do with the ocean floor that is subject to the sovereignty or sovereign rights of any country, including that of the United States. Third, the ISA only addresses deep seabed mining. Thus, its role is limited to mining activities in areas of the ocean floor beyond national jurisdiction. It has no other role and no general authority over the uses of the oceans, including freedom of navigation and overflight.
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 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.
Myth: The Convention would permit an international tribunal to second-guess the U.S. Navy.
Reality: No international tribunal would have jurisdiction over the U.S. Navy. U.S. military activities, including those of the U.S. Navy, would not be subject to any form of dispute resolution. The Convention expressly permits a party to exclude from dispute settlement those disputes that concern "military activities." The United States will have the exclusive right to determine what constitutes a military activity.
Myth: The International Tribunal for the Law of the Sea could order the release of a vessel apprehended by the U.S. military.
Reality: The Tribunal has no jurisdiction to order release in such a case. Its authority to address the prompt release of vessels applies only to two types of cases: fishing and protection of the marine environment. Further, even if its mandate did extend further – which it does not – the United States will be taking advantage of the optional exclusion of military activities from dispute settlement. As such, in no event would the Tribunal have any authority to direct the release of a vessel apprehended by the U.S. military.
Myth: The Convention was drafted before – and without regard to – the war on terror and what the United States must do to wage it successfully.
Reality: The Convention enhances, rather than undermines, our ability to wage the war on terror. Maximum maritime naval and air mobility is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for our forces, weapons, and materiel to get to the fight without hindrance. It is essential that key sea and air lanes remain open as a matter of international legal right and not be contingent upon approval from nations along those routes. The senior U.S. military leadership – the Joint Chiefs of Staff – has recently confirmed the continuing importance of U.S. accession to the Convention in a letter to the Committee.
Myth: The Convention would prohibit or impair U.S. intelligence and submarine activities.
Reality: The Convention does not prohibit or impair intelligence or submarine activities. Joining the Convention would not affect the conduct of intelligence activities in any way. This issue was the subject of extensive hearings in 2004 before the Senate Select Committee on Intelligence. Witnesses from Defense, CIA, and State all confirmed that U.S. intelligence and submarine activities are not adversely affected by the Convention. We follow the navigational provisions of the Convention today and are not adversely affected; similarly, we would not be adversely affected by joining.
Myth: The United States can rely on use or threat of force to protect its navigational interests fully.
Reality: The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights. But these operations entail a certain degree of risk, as well as resources. Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a stronger position to assert our rights.
Myth: Joining the Convention would hurt U.S. maritime interdiction efforts under the Proliferation Security Initiative (PSI).
Reality: Joining the Convention would not affect applicable maritime law or policy regarding the interdiction of weapons of mass destruction. PSI specifically requires participating countries to act consistent with international law, which includes the law reflected in the Convention. Almost all PSI partners are parties to the Convention. Further, joining the Convention is likely to strengthen PSI by attracting new cooperative partners.
Myth: President Reagan thought the treaty was irremediably defective.
Reality: As explained above, President Reagan identified only certain deep seabed mining provisions of the Convention as flawed. His 1983 Ocean Policy Statement demonstrates that he embraced the non-deep-seabed provisions and established them as official U.S. policy. The 1994 Agreement overcomes each of the objections to the deep seabed mining provisions identified by President Reagan. As President Reagan’s Secretary of State, George P. Shultz, noted in his recent letter to Senator Lugar, "It surprises me to learn that opponents of the treaty are invoking President Reagan’s name, arguing that he would have opposed ratification despite having succeeded on the deep sea-bed issue. During his administration, with full clearance and support from President Reagan, we made it very clear that we would support ratification if our position on the sea-bed issue were accepted."
Myth: The Convention provides for mandatory technology transfer.
Reality: Mandatory technology transfer was eliminated by the 1994 Agreement that modified the original Convention.
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 new constraints on our navigational freedoms certainly would not accept the 1982 version of those freedoms.
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