Former State Department Legal Adviser Edwin Williamson responded to a recent article in the Wall Street Journal by John Bolton and Dan Blumenthal that opposed US accession to the Law of the Sea Convention. The letter below may be accessed as the Wall Street journal directly by clicking here: Williamson Letter
Wall Street Journal, October 5, 2011
My friend John Bolton and his co-author Dan Blumenthal are "lost" in arguing for reliance on customary international law (CIL) in "Time to Kill the Law of the Sea Treaty—Again" (op-ed, Sept. 29). They say that CIL is essential but then assert that China, supported by Russia, Iran, Brazil and India, does not respect the tenets they say CIL establishes. Where is the general pattern of state practice essential to CIL? The problem with relying on CIL in the law of the sea arena is that its history reflects a steady deterioration of the freedom of the seas to the detriment of the essential rights of maritime nations, such as the U.S.
The Law of the Sea Treaty (LOST) strikes a balance between the rights of maritime nations and coastal nations. The U.S. has the most at stake in each category, possessing the world's premier Navy and the world's longest coast line. LOST codifies very important economic rights of coastal states, while also freezing in place navigational rights essential to maritime states. Both areas are too important for reliance on CIL, which neither the authors nor I would rely on for a second in other areas where the sovereignty of the U.S. is at stake.
LOST is not the answer to maritime conflicts, but it is an important tool to have. It should not be blindly ratified, but if combined with reform of our domestic energy policy, ratification would strengthen important navigational and economic rights for the U.S.
Edwin D. Williamson
Washington
Mr. Williamson served as State Department Legal Adviser from 1990 to 1993.
To Rule the Arctic’s Waves, U.S. Can’t Waive the Rules: View
October 05, 2011, 8:24 PM EDT
By the Editors
Oct. 6 (Bloomberg) -- The melting of Arctic ice as a result of global warming has set off a race to capitalize on the polar region’s suddenly accessible resources and expanding navigable waterways. Yet even as Canada, Russia and others stake their claims to this potential bounty of economic and trade opportunities, the U.S. is choosing to sit on the sidelines.
Why? Because it won’t sign on to the rules of the game: the United Nations Convention on the Law of the Sea. The opponents justify their obduracy by citing a nonexistent threat to national sovereignty. The greater threat to the U.S. lies in its continued failure to ensure it will have a central role on this new frontier.
The area covered by Arctic ice today is about two-thirds its average size between 1979 and 2000. The Arctic is thought to hold 22 percent of the world’s undiscovered, recoverable reserves of fossil fuels, plus stores of minerals such as lead, nickel and zinc. Less polar ice means that more of these riches are accessible for longer periods of the year.
Plus, it is becoming increasingly feasible to ship goods out of and through the Arctic. The breakup of polar ice creates the prospect of shipping shortcuts across the top of the globe. The Northern Sea Route, parallel to Russia’s coast, would cut sailing time between Europe and Asia by as much as 40 percent, by eliminating the trip through the Suez Canal. This passage could trim as much as 20 percent off the cost of a ship’s voyage.
Oil and Gas
Countries are lining up to get a piece of this potential bonanza. Russia has used a submersible to sink its flag on the seabed of the North Pole. China, though it doesn’t border the Arctic, operates an icebreaker to get in on the action. Canada and a handful of other countries are drafting claims for the right to drill for oil and gas in Arctic waters far off their shores. The global economic downturn has slowed the action somewhat, but it is sure to accelerate again with recovery.
It is the Law of the Sea Convention that will determine who has the right to benefit from the Arctic’s riches. The treaty -- which has the approval of 160 countries, including all those bordering the Arctic Ocean except the U.S. -- establishes that a coastal state exercises sovereignty 12 miles out to sea; controls customs and immigration 24 miles out; owns economic, research and preservation rights 200 miles out in an Exclusive Economic Zone; and has the sole right to natural resources on its continental shelf. A provision exists for resolving overlapping claims.
Defining Ownership
The U.S. continental shelf off Alaska extends more than 600 miles into the Arctic Ocean. American companies have been reluctant to invest in exploiting this underwater terrain, which contains vast untapped reserves of oil and natural gas. That’s because the U.S., as a nonparticipant in the sea convention, has no standing to defend its ownership of any treasures that are found there.
Submitted to the Senate both by Presidents Bill Clinton and George W. Bush, and recommended for Senate approval twice by the Foreign Relations Committee, the treaty has yet to come to the Senate floor for a vote. It has repeatedly died because of a small but vocal opposition that, arguing it undermines American sovereignty, has made the treaty politically radioactive. President Barack Obama has put little effort into supporting the measure.
Treaty opponents maintain that it would compromise U.S. intelligence-gathering efforts by air and sea because another country could argue it has the right to bar such activities within 200 miles of its coast.
Sovereignty Limits
This is a nonsensical claim because a state could make that argument with or without the convention. In fact, the treaty makes such claims more spurious because it spells out that sovereignty ends 12 miles from shore. This is one reason the U.S. military leadership supports U.S. accession to the convention.
Critics of the treaty say it would subject U.S. military operations to a mandatory procedure for resolving disputes with other signatories, such as China’s efforts to keep the U.S. military out of its Exclusive Economic Zone. Actually, the convention allows states to opt out of that process when it comes to military matters.
The visceral rejection of the UN convention by American opponents such as Republican Senator James Inhofe of Oklahoma is rooted in the belief that the U.S., as the world’s only superpower, should pursue its interests without the encumbrance of multilateral institutions. Yet in this case, the U.S. cannot effectively defend its interests by standing alone.
Submitting Claims
In the meantime, the other Arctic coastal states are already preparing their claims for submission to the Commission on the Limits of the Continental Shelf, which was created by the treaty. Russia apparently plans to argue its underwater footprint entitles it to exploit half the Arctic Ocean. The U.S. can’t stake its share or even comment on the claims of others unless it gains a seat at the table by joining the convention.
Signing on to the treaty would also position the U.S. to help manage the challenges posed by the Arctic’s exploitation. Even without new claims, existing territorial disputes between Arctic neighbors could eventually flare into trouble with more ships plying the waters, companies extracting resources and militaries inevitably following and flexing their might.
The Arctic Council -- which joins the Arctic Ocean states (the U.S., Canada, Russia, Norway and Denmark, of which Greenland is a part) with Finland, Iceland and Sweden, and includes representatives of the region’s indigenous people -- addresses safety and environmental issues. But it doesn’t deal with security matters. On these issues, the U.S. has a vital function, to use its power and diplomatic resources to resolve conflicts quietly and, if possible, before they become hot.
Senate Approval
The legitimacy necessary to play that role can only be obtained through membership in the sea treaty. One could argue that winning Senate approval now, with a presidential campaign season under way, is a lost cause, that hearings would only bait opponents who would calculate that UN bashing would mobilize their voters.
But there’s another way to look at this. The president could use this opportunity to demonstrate his leadership, and congressional Republicans could use it to demonstrate they can be reasonable. Given the number of Senate Democrats plus the Republicans who’ve voiced support for the treaty, it’s likely the convention would win the two-thirds majority necessary for approval. This is a good moment to remind Americans that it is still possible for bipartisan cooperation to overcome small minorities that are vocal, obstructive and wrong.
While doing some on-line research I can across a recent article addressing US accession to the Law of the Sea Convention. Before graduation from Washington University Law School, the author, Elizabeth M. Hudzik, was managing editor of the Washington University Global Studies Law Review, in which she published her assessment of the criticism of the LOS Convention, refuted it and recommended the US proceed with accession to the Convention.
Hudzik addresses four opposition arguments against the Convention:
UNCLOS as a threat to Sovereignty
UNCLOS as a threat to U.S. Commercial Interests
UNCLOS as an Environmental Agenda
UNCLOS as a threat to National Security
Her responses combine rejoinders to specific criticism with references to military and industry supporters as verifiers of the Convention's value and the weakness of opposition arguments.
She also addresses issues related to the warming of the arctic and its increasing accessibility by highlighting the value of having access to the Commission on the limits of the Continental Shelf, the value of oil and gas of the extended shelf and the reconsideration of the convention by both the Bush and Obama Administrations.
Hudzik's conclusion is as follows:
In light of a global climate crisis and the escalating battle over the valuable resources below the North Pole, Congress should make ratification of UNCLOS one of its top priorities. Until the United States is a treaty member, it cannot enjoy voting privileges on the influential ISA (on which it would be granted a permanent seat) nor submit claims to the CLCS to gain legal rights to the resources in the North Pole's seabed. The concerns that influenced President Reagan not to sign the treaty in 1982 have largely disappeared, and the remaining concerns are easily refuted. U.S. ratification of UNCLOS makes sense not just for economic, national security, and environmental reasons, but also to enhance the diplomatic standing of the United States. Accession to UNCLOS now would be a powerful and meaningful gesture on behalf of the United States, symbolizing a recommitment to global cooperation.
Source: Elizabeth M. Hudzik, "A Treaty on Ice: Debunking the Arguments Against U.S. Ratification of the U.N. Convention on the Law of the Sea," Washington University Global Studies Law Review, vol. 9 (2010), pp. 353-370.
The South China Sea, with its overlapping claims to the EEZ and Continental shelf, with differing interpretations of navigation rights in the EEZ, and concerns of both coastal and distant water states over avoiding conflict in the world's second largest waterway, has become a case study of the role of the 1982 UN Convention on the Law of the Sea. Even the United States, whose naval power is unquestioned around the world, cannot seek to have its way through power alone. The Convention provides the strength of principle to balance the threat inherent in naval power.
The Law of the Sea Convention provides both structure and agreed limits on the actions of all parties at sea. These limits play an essential role in containing and limiting conflict to primarily, though not exclusively, to diplomatic channels. Occasional demonstrations of national commitment via incidents at sea remain a constant threat, and will continue to do so until there is regional agreement on authority and rights in the maritime space of the South China Sea. Until then, it is essential to support the LOS Convention as a basis for US policy. Of course, it would be more helpful if the United States were to actually become party to the Convention rather than seemingly apply it to all other countries while excusing itself from the agreement.
These points and more are addressed in the April 2011 issue of the US Naval Institute Proceedings in an article by Caitlyn Antrim and George Galdorisi. A copy of the article may be downloaded from the link below:
The new Quadrennial Defense Review, published on February 1, 2010, provides the first official Department of Defense endorsement of the Law of the Sea Convention during the Obama Administration. The QDR uses US interests in a changing Arctic to illustrate the reasons for its endorsement of US accession to the Convention.
The effect of changing climate on the Department's operating environment is evident in the maritime commons of the Arctic. The opening of the Arctic waters in the decades ahead which will permit seasonal commerce and transit presents a unique opportunity to work collaboratively in multilateral forums to promote a balanced approach to improving human and environmental security in the region. In that effort, DoD must work with the Coast Guard and the Department of Homeland Security to address gaps in Arctic communications, domain awareness, search and rescue, and environmental observation and forecasting capabilities to support both current and future planning and operations. To support cooperative engagement in the Arctic, DoD strongly supports accession to the United Nations Convention on the Law of the Sea. (emphasis added)
Quadrennial Defense Review report, February 2010, page number 86 (page 108 of the PDF file) Available on-line at: http://www.nationaljournal.com/congressdaily/issues/graphics/Defense-Review-2010.PDF
Published today on the Council on Foreign Relations website:
Climate Right for U.S. Joining Law of Sea Convention
Authors:
Scott G. Borgerson, Visiting Fellow for Ocean Governance
Thomas R. Pickering, Vice Chairman, Hills & Company
December 23, 2009
Delegates unable to strike a grand compromise at the UN Climate Conference in Copenhagen last week should look to the UN Law of the Sea Conference for inspiration on how to successfully negotiate a complicated global accord. Settling on an agreed set of rules for the world's oceans was also a massive undertaking, requiring decades of patience, hard work, and deft diplomacy to iron out an agreement that would be acceptable to a diverse community of nations. Facilitated by principled leadership by the United States, ultimately 157 countries have now signed and ratified the Law of the Sea Convention, which provides the overarching framework for managing the world's oceans and what lies above and beneath them. This year marks the fifteenth anniversary since the treaty has come into force.
Yet despite its central role shaping the convention and securing significant amendments to address outstanding concerns, the United States has failed to join. The United States remains among only a handful of countries with a coastline, including Syria, North Korea, and Iran, to not yet accede to the treaty. While remaining non-party to the convention might seem a point of diplomatic inconsequence, emerging issues like the melting Arctic make joining increasingly urgent. The polar ice cap is melting at an unprecedented clip, and the Arctic Ocean is on pace to be seasonally ice-free within a decade. In the next few years, do not be surprised if the sea ice covering the North Pole disappears for the first time in recorded history. As the Copenhagen process drove home, this fastest-warming region on earth is an imperative for action to reduce green house gas emissions, yet it is also relevant for a host of traditional geostrategic maritime issues covered under the Law of the Sea.
Arctic Maritime Opportunities
For starters, the retreating ice is creating more effective shipping shortcuts like the Northeast Passage over Russia that opened to commercial navigation for the first time this past summer. This sea change is also yielding access to an estimated quarter of the world's remaining hydrocarbon reserves, which has set off a full court press among Arctic nations to extend the legal definition of their continental margins. Virgin fishing stocks are also becoming accessible, spurring the recent decision by Secretary of Commerce Gary Locke to secure exploitation of some of these resources in domestic waters and helping to inspire President Barack Obama to charter a White House Ocean Policy Task Force whose final recommendations are expected any day. Despite these opportunities and threats, by stubbornly remaining non-party to the Law of the Sea Convention, the United States remains hobbled on the Arctic's geopolitical sidelines.
The United States is unilaterally freezing itself out of important international policymaking bodies, literally forfeiting a seat at decision-making tables. One very important forum where the United States has no say is the commission vested with the authority to validate country's claims to extend their exclusive economic zones on the outer continental shelf (OCS), a process that is the last great partitioning of sovereign space on earth.
By being the last significant maritime nation in the world to formally join the treaty, the United States is forgoing an opportunity to extend its national jurisdiction over a vast amount of ocean area on its Arctic, Atlantic, and Gulf Coasts--equal to almost half the size of the Louisiana Purchase--while simultaneously abdicating an opportunity to have a say in deliberations over other nation's claims elsewhere. This was highlighted by Russia's stunt to plant a flag at the North Pole's sea floor. The United States also marginalizes itself in the International Seabed Authority, the UN body established by the convention to oversee deep seabed mining, an important emerging industry.
Debating the value of international agreements is a great U.S. pastime, but the truth here is that the convention actually allows for an expansion of U.S. sovereignty--extending American sea borders; guaranteeing the freedom of movement of ships and airplanes for the world's most powerful navy; and enhancing legal tools to combat scourges at sea such as piracy, drug trafficking, human smuggling, and proliferation of weapons of mass destruction. Potential participants in U.S.-organized flotillas in the Indian Ocean to protect vital shipping routes from piratical attacks and U.S.-led coalitions to prosecute North Korean contraband shipments under the Proliferation Security Initiative rightly question why they should assist the United States in enforcing the rule of law when it refuses to recognize the convention that guides the actions of virtually every other nation.
National Interests in other Waters
The Law of the Sea is also an important vehicle for the United States in coordinating action on a host of environmental crises, from collapsing fisheries and the ravages of climate change like ocean acidification and sea level rise, to the growing problem of marine pollution. The convention is also critical to U.S. economic security as it governs commercial activities on, in, and under the world's oceans. With one-third of the world's oil and gas already produced offshore, the future of hydrocarbon extraction is moving into ever-deeper waters. Deep-seabed mining is also an emerging industry, and the convention establishes the legal regime for extracting mineral resources from the ocean floor. Joining the central agreement governing maritime issues is directly germane to a maritime power where half of its (and the world's) population lives within fifty miles of a coast, 90 percent of all its trade is ferried by sea, and U.S. ocean-dependant industries contribute $138 billion to the nation's economy.
Why is it imperative for the United States to join the convention after all these years, and why now in the midst of investing so much energy into trying to draft a new climate agreement? First, the loss of a unique opportunity; the United States is experiencing a convergence of circumstances that includes the ascendance of a national security strategy founded on conflict prevention and partnership building, a community of nations eager for renewed American multilateralism, and a formidable list of ocean challenges demanding coordinated policy action.
Second, officially becoming party to the treaty would provide the legal foundation necessary to protect and enhance U.S. sovereign and security interests; assure unilateral rights and jurisdiction in offshore zones and the freedom of passage for U.S. military forces in strategic waterways; and ensure protection for U.S. maritime research interests. And lastly and equally significant on the heels of a climate conference that failed expectations, the United States would seize an opportunity to restore the mantle of international leadership over nearly three-quarters of the earth. This would also send the right message at the right time to the international community that the United States can be trusted to negotiate complicated treaties in good faith.
The United States joining the Law of the Sea Convention enjoys broad bipartisan support, including endorsement by both the two previous presidential administrations; is championed by the Joint Chiefs of Staff and leading senators of both parties on the Senate Foreign Relations Committee; and has been recommended by every major ocean constituency. This broad consortium needs President Obama's support early in 2010 to help guide the treaty through the Senate approval process before Washington can credibly help lead a new comprehensive climate regime. The political stars are aligned in the Senate for passage, and a formal endorsement of the convention by the president in the coming weeks would send the necessary signal to the Congress and the world that the United States is ready to join this widely accepted corpus of international law.
Scott G. Borgerson is the visiting fellow for ocean governance at the Council on Foreign Relations. Ambassador Thomas R. Pickering is a former Under Secretary of State for Political Affairs.
The current issue of "Navy," the monthly publication of the Association of the United States Navy, includes an article analyzing the LOS Convention in terms of Navy and National interests and comes to the conclusion that the United States should join the Convention. The concluding paragraph of the article reads:
In short, the US stands only to gain by ratifying the LOS Treaty. The rapidly changing environment of the Arctic region makes it all the more urgent for the US to join. Receding ice due to global warming has opened up new waterways and led to an increase in development of the region’s vast oil and gas reserves, and countries are laying claims to these resources. By joining UNCLOS, we would be able to secure the rights over resources in the Arctic and play a prominent role in the governance of this region and beyond.
You may view a PDF of the full article by clicking the link below:
On March 10th, 1983, and after months of consideration of the implications of the adoption of the final act of the Law of the Sea Conference and the signature of the 1982 UN Convention on the Law of the Sea by 119 nations, President Ronald Reagan issued his statement of US Oceans policy.
After noting that the US would not join the 1982 Convention because of its provisions related to the resources of the deep seabed beyond national jurisdiction, he went on to say that the balance of the Convention was in the interest of the United States and would be observed by the US. He went on to declare the non-seabeds parts to be "fair and balanced results" and specified three areas for specific comment:
Today I am announcing three decisions to promote and protect the oceans interests of the United
States in a manner consistent with those fair and balanced results in the Convention and
international law.
First, the United States is prepared to accept and act in accordance with the balance of interests
relating to traditional uses of the oceans -- such as navigation and overflight. In this respect, the
United States will recognize the rights of other states in the waters off their coasts, as reflected in
the Convention, so long as the rights and freedoms of the United States and others under
international law are recognized by such coastal states.
Second, the United States will exercise and assert its navigation and overflight rights and
freedoms on a worldwide basis in a manner that is consistent with the balance of interests
reflected in the convention. The United States will not, however, acquiesce in unilateral acts of
other states designed to restrict the rights and freedoms of the international community in
navigation and overflight and other related high seas uses.
Third, I am proclaiming today an Exclusive Economic Zone in which the United States will
exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast.
This will provide United States jurisdiction for mineral resources out to 200 nautical miles that
are not on the continental shelf. Recently discovered deposits there could be an important future
source of strategic minerals.
In the rest of the statement, President Reagan went on to address related matters, such as the right of coastal states to manage marine scientific research in their EEZs and on their Continental Shelves, while noting that the US would not implement such a regime in spite of its legal right to do so.
At a time when the sportfishing organizations have questioned whether the LOS Convention would affect their rights at sea, it is well to note that 26 years ago President Reagan accepted the fisheries provisions of the Convention and they have been observed in US law and regulation ever since.
(click 'Read More" for full text of Reagan 1983 ocean Policy Statement)
An upgrade to the oceanlaw.org content management software now allows embedding of videos. This video dates back to the beginning of 2009 but is still timely in light of Secretary Clinton's recent letter to Senators Kerry and Lugar offering the State Department's assistance for hearings on the LOS Convention.
The following letter was sent to Sen. John F. Kerry, chair of the Senate Foreign Relations Committee A similar letter was sent to Sen. Richard Lugar, Ranking Minority member of the Committee.
October 16, 2009
The Honorable John F. Kerry, Chairman
Committee on Foreign Relations
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman,
Recognizing the Senate Foreign Relations Committee's intention to consider
the Convention on the Law of the Sea, I offer my strong support for U.S. accession to
the convention.
As you are aware, the convention protects and advances the national security,
economic, and environmental interests of the United States. In particular, the
convention codifies navigational rights and freedoms critical to U.S. military and
commercial vessels and secures U.S. economic rights to natural resources off-shore.
In addition, as a party, the United States would have access to procedures that would
maximize international recognition and legal certainty for U.S. sovereign rights over
offshore resources (including minerals) beyond 200 miles of our coastline.
The United States, as a major maritime power, the country with the largest
exclusive economic zone, and one of the largest continental shelves, stands to gain
more from this treaty in terms of economic and resource rights than any other
country. Having a seat at the table as a party would allow the United States to
participate more effectively in the interpretation and development of the convention
and the ability to participate formally in its institutions.
As the committee proceeds toward hearings on the convention, the Department
of State stands ready to facilitate the Senate's consideration of this treaty by
providing witnesses, testimony, and overall support.
I appreciate your leadership in our efforts to gain the necessary support for
advice and consent to accession of this vitally important treaty.
