Ratifying the United Nations Convention on the Law of the Sea

New Resources on the Law of the Sea:

2009 Council on Foreign Relations Special Report (PDF)

Scott Borgeson, visiting Fellow at the Council on Foreign Relations has spent several months developing a report on the U.N. Convention on the Law of the Sea. It has finally been published in good timing with Senate activities. The report is a pragmatic look at the Law of the Sea from groups that are affected by U.S. non participation and that regularly use the sea. This report provides: Historical background on the Law of the Sea and its life in the U.S. Senate Foreign Relations Committee Arguments for and against the Law of the Sea Convention United States National Security, Economic, and Environmental Interests How remaining outside the Convention damages U.S. national interests And a final discussion of critical concerns about the Convention

Questions & Answers About the Law of the Sea:

Q: Would the U.S. have to change its laws if we ratified the treaty?

Answer

A: In 1983, Ronald Reagan directed U.S. agencies to comply with all of the provisions in LOS except for Part XI, which concerns deep-sea mining. With U.S. leadership, Part XI was reworked and the Convention was officially modified in 1994, addressing all U.S. concerns. Since 1983, the U.S. has been in voluntary compliance with the entire Convention and thus accession would not result in any changes to current U.S. domestic or foreign policy.

Q: What are the benefits of the Law of the Sea Treaty?

Answer

A: UNCLOS Benefits Business, the Military, and the Environment:

1. Joining UNCLOS will benefit American businesses. UNCLOS would protect the claims of U.S. firms to mineral resources and give us an opportunity to provide better management for the sensitive Arctic environment adjacent to U.S. boundaries. Each country has exclusive rights to manage the resources in areas near its coast. Under the terms of UNCLOS, which maps out the boundaries of these areas, the American zone is larger than that of any country in the world. The size of this zone is 3.65 million square miles -larger than the lower 48 states combined. In addition, under UNCLOS, coastal states can exercise sovereign rights over natural resources within the extended continental shelf area beyond this territory. Under UNCLOS, the five Arctic states - Norway, Denmark, Russia, Canada and the U.S. - can claim mineral and oil extraction rights in the Arctic seabed in areas that extend beyond their respective exclusive economic zones and stand to gain tremendously by this. In addition, joining UNCLOS, would give U.S. companies an opportunity to apply for licenses with the International Seabed Authority, which manages claims to resources in the deep seabed, an area over which no country has sovereign rights.
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2. Joining UNCLOS will help us protect our military's ability to freely navigate the oceans. In addition, the U.S. military, which relies heavily on its ability to navigate on and fly freely over the sea, has been a strong advocate of UNCLOS. In the absence of treaty law, the U.S. is forced to rely on customary law that can change as States' practices change. Also, under this customary law, countries often make unreasonable and irresponsible claims on marine territory to stop the U.S. military from defending U.S. interests. The U.S. has tried to talk around these claims, but without a legal framework to support us we risk compromising our intelligence and military operations at sea.
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3. Joining UNCLOS would enable the U.S. to work to promote higher environmental standards in countries throughout the world. In the U.S., we have laws to keep marine resources available for future generations. The convention also contains special measures to save endangered whales, salmon, and other marine mammals. It helps the fisheries of coastal states by allowing them to set limits within their EEZ. It also protects valuable migratory fish stocks such as tuna and billfish on the high seas, beyond the 200-mile limit. UNCLOS sets a global standard so that all countries are legally bound to protect the marine environment, protect fish stocks, and prevent pollution with as much care as the U.S. does.

Q: What could the U.S. do as a Member of the treaty that it can't do as an outsider?

Answer

A: One benefit of membership is a permanent position on the International Seabed Authority, an organization of countries set up to regulate deep sea mining. With the world's most powerful economy, the U.S. would have by far the most powerful vote on the council - or none at all if we choose to reject UNCLOS.

Moreover, as of November 2004, members of UNCLOS have the right to modify the treaty. As a member, the U.S. can use the treaty to seize new opportunities and protect our interests. By contrast, if we choose not to join, we put in jeopardy all of the provisions that U.S. negotiators worked tirelessly to negotiate into the treaty. Without the U.S. at the table, countries will be free to make changes without U.S. input. Beyond modifying the Convention itself, such changes could change the basis of customary international law on which the US has relied to protect our interest at sea in absence of being party to the Convention. In contrast, by joining the Convention, we will lock in our rights as currently contained in the Convention unless and until any amendments are approved by the Senate and ratified by the U.S.

For example, since UNCLOS codifies traditional law of the sea that is applied to commercial ship movements, it is crucial that the U.S. be present for debates over amendments to the treaty. UNCLOS guides the rules that apply to the movements of commercial ships that carry over ninety-five percent of U.S. foreign commerce. And UNCLOS establishes the basis for discussions on environmental protections in the international maritime world. Several countries have noted that UNCLOS still does not adequately address environmental issues and are publicly saying that it should be amended to accommodate the new awareness of coastal needs regarding ships in innocent passage as well as those bearing for specific ports. It is very important for the U.S. to be at the table as these discussions begin. While there is not a specific request yet for UNCLOS review, it is clearly on the horizon and the U.S. would be well served to be in a position of major influence on the debate. The U.S. is a nation that values responsibility and cooperation. Joining UNCLOS tells the 156 countries that have already joined UNCLOS, including all of our allies, that we are committed partners in protecting the planet and its people.

Q: What do U.S. officials say about the Law of the Sea?

Answer

A:

Former George W. Bush Administration Officials

• Former President George W. Bush: "I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress. Joining 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. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted."
• Former Secretary of State Condoleezza Rice: “The administration supports early Senate action on the Convention.”
• 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.” (2004)
• Admiral Vern Clark, former Chief of Naval Operations: “The Convention supports U.S. efforts in the war on terrorism…while leaving unaffected intelligence collection activities. Further threats will likely emerge in places and ways that are not yet known. For these and other as yet unknown operational challenges, we must be able to take maximum advantage of the established navigational rights codified in the Law of the Sea Convention to get us to the fight rapidly.”
• Ambassador John Bolton, former U.S. Ambassador to the United Nations: “The administration has submitted the Law of the Sea Treaty as one of its priorities, and I support that.” (2004)

Current officials

• Governor Sarah Palin, Alaska: "I want to put my administration on record in support of the convention as the predicate for asserting sovereign rights that will be of benefit to Alaska and the nation." (2007)
• Senator Richard Lugar, Senate Foreign Relations Committee (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. I have urged President Bush and my colleagues in the Senate to act soon before election year politics or a crowded Senate schedule once again scuttles the chances for this vital international agreement, which has for years been stalled in unnecessary controversy....However, ideological posturing and flat-out misrepresentations by a handful of amateur admirals have sought to cast a shadow over the treaty by suggesting that we are turning over our sovereignty to the United Nations. Their criticisms simply don't hold water." (2007)
  • "Opponents seem to think that if the U.S. declines to ratify the Law of the Sea, it will evaporate into the ocean mists...Unlike some treaties...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 or not the U.S. is a party...My message...is that it is irresponsible for us to wait to ratify the Law of the Sea until we feel the negative consequences of our absence from the Convention. The Senate should ratify the Law of the Sea Convention now in the interest of U.S. national security, the U.S. economy and the American people." (2005)
• Admiral Thad Allen, Commandant of the Coast Guard: "The convention greatly enhances our ability to protect the American public as well as our efforts to protect and manage fishery resources and to protect the marine environment. From the Coast Guard's perspective, we can best maintain a public order of the oceans through a universally accepted law of the sea treaty that preserves and promotes critical U.S. national interests."

Q: Are there other supporters of the Law of the Sea treaty?

Answer

A: Supporters of the Law of the Sea:

Business:

• American Chemistry Council
• American Geological Institute
• American Geophysical Institute
• American Geophysical Union
• American Petroleum Institute
• American Sportfishing Association
• AT&T
• Boat US
• Chamber of Shipping of America
• International Association of Drilling Contractors
• National Fisheries Institute
• National Marine Manufacturers Association
• National Oceans Industries Association
• U.S. Tuna Foundation
• Western Pacific Regional Fishery Management Council

Military:

• Gen. Richard Myers, Chairman, Joint Chiefs of Staff
• Vice Admiral Vern Clark, Chief of Naval Operations
• Navy League of the United States
• Naval Reserve Association

Environmental and Public Interest:

• Better World Campaign
• Center for International Environmental Law
• Defenders of Wildlife
• Environmental Defense
• Friends Committee on National Legislation
• Garden Club of America
• Humane Society of the United States
• IUCN/World Conservation Union
• League of Conservation Voters
• National Environmental Trust
• Natural Resources Defense Council
• The Nature Conservancy
• Ocean Conservancy
• Oceana
• Physicians for Social Responsibility
• Scenic America
• U.S. Public Interest Research Group
• World Wildlife Fund
• United Nations Association of the United States of America

Former Administration:

• President George W. Bush
• President Bill Clinton
• Secretary of State Condoleezza Rice
• Secretary of State Colin Powell
• All living State Department Legal Advisors

Legal and Research:

• American Bar Association
• Council on Ocean Law
• Joint Oceans Commission Initiative
• Maritime Law Association of the United States
• Transportation Institute
• U.S. Arctic Research Commission
• U.S. Commission on Ocean Policy

Additional Resources on the Law of the Sea:

2007 Law of the Sea Briefing book (PDF)

This 124 page document includes: Talking Points and Background Info What U.S. Officials are Saying Organizational and Business Support Law of the Sea in the Media Links to More Information (treaty text, etc.)

Open for More Resources

Testimony & Hearings:

• Senate Testimony by Citizens for Global Solutions CEO Don Kraus
• Senate Foreign Relations Committee Hearing on the Law of the Sea, Oct 2007
• Testimony of Secretary of State Condoleeza Rice on the Law of the Sea
• Senate Foreign Relations, October 21, 2003
• Senate Environment & Public Works, March 23, 2004.
• Armed Forces, April 8, 2004
• Foreign Relations Hearing, September 27, 2007 with Deputy Secretary of State Negroponte, Deputy Secretary of Defense England, and Admiral Patrick Walsh - opening statements, tesitmony, and video available
• Foreign Relations Hearing, October 4, 2007 with Admiral Vern Clark, USN (Ret.), Mr. Bernard Oxman, Mr. Frank Gaffney, Mr. Fred Smith, Mr. Paul Kelly, Mr. Joseph Cox, and Mr. Douglas Burnett - opening statements, tesitmony, and video available

Reports & Briefs:

• Citizens for Global Solutions Brief on Myths and Facts about the Law of the Sea, 2007 (PDF)
• Law of the Sea Convention: Should the U.S. Ratify? Brookings Institution, June 22, 2004 (PDF)
• Final Act of the Third United Nations Conference on the Law of the Sea
• Full Text of the United Nations Convention on the Law of the Sea

Letters Supporting Ratification:

• Citizens for Global Solutions sign-on letter, placed in Roll Call, May 12, 2004 (PDF)
• Navy League Presidential Message calling Law of the Sea essential for U.S. Naval Power
• National Security Advisor Steven Hadley to SFRC Chair Biden supporting Law of the Sea (PDF)
• 101 Prominent U.S. Leaders Urge the United States to Join the Law of the Sea Convention (PDF)
• House Oceans Caucus letters to Senator Frist and Senator Daschle urging ratification, June 24, 2004 (PDF's)
• Commission on Ocean Policy (PDF)
• Adm. Vern Clark, CNO (PDF)
• Petroleum industry (PDF)
• Chamber of Shipping of America (PDF)
• Western Pacific Regional Fishery Mgmt. Council (PDF)
• Environmental groups (PDF)
• Pew Oceans Commission (PDF)
• American Bar Association (PDF)
• Gen. Myers, Chairman of the Joint Chiefs of Staff (PDF)
• Former State Dept. Legal Advisors (PDF)
• Navy League of the U.S. (PDF)
• State Dept. Legal Advisor (PDF)
• 1998 AT&T letter (PDF)

Articles:

• "Why America Should Care about the Law of the Sea Treaty" - Spencer Boyer and Don Kraus
• Foreign Policy in Focus Commentary Time to Ratify the Law of the Sea - Don Kraus
• Interview with Senator Richard Lugar (R-IN) from Citizens for Global Solutions Spring 2004 Newsletter
• Chatanooga Times Editorial urging Sen. Frist to call for vote on ratification, 2007 (PDF)

Blogs:

          Citizens for Global Solutions -

                 Blogs on "Law of the Sea" on our website

Open Left -

http://www.openleft.com/showDiary.do?diaryId=2081

http://www.openleft.com/showDiary.do?diaryId=1910

Taylor Marsh -

http://www.taylormarsh.com/archives_view.php?id=26457

Down with Tyranny -

http://downwithtyranny.blogspot.com/2007/10/mitts-not-only-republican-flip-floppin.html

The Washington Note -

http://www.thewashingtonnote.com/archives/002402.php

http://www.thewashingtonnote.com/archives/002452.php

http://www.thewashingtonnote.com/archives/002440.php

http://www.thewashingtonnote.com/archives/002384.php

The UN Dispatch -

http://www.undispatch.com/archives/2007/10/gaffney_lost_on.php

http://www.undispatch.com/archives/2007/10/the_unclos_batt.php

 

 

Other Links & Resources:

• Official treaty website - Contains treaty text, status.
• Citizens for Global Solutions Law of the Sea Ad Running in Tennessee Newspapers, 2007
• Why should America care?
• American Society of International Law Resource Center
• Center for Oceans Law and Policy
• Senator Lugar's work on the Senate Foreign Relations Committee
• Rule of Law Committee for the Oceans
• Center for American Progress Progress Report
• Background on the LOS
• Support the LOS with the World Wildlife Fund!

For more information about this fact sheet and the Law of the Sea Convention contact Abigail Long, Programs Coordinator, along[at]globalsolutions.org, or (202) 546-3950 x 105 or Don Kraus,CEO, dkraus[at]globalsolutions.org or (202) 330-4105