By JOHN CASTELLAW
Stars and Stripes
Published: July 5, 2012
It was once an article of faith that on matters of national security, all politicians were expected to â€œlisten to the commanders on the ground.â€ This maxim was repeated time and again as the reason to oppose efforts to wind down wars in Iraq and Afghanistan, and the political world was suddenly â€” and appropriately â€” enraged with condemnation when a group referred to Gen. David Petraeus as â€œGeneral Betray-usâ€ for his advocacy of the 2006 â€œsurgeâ€ in Iraq.
Apparently, however, this bedrock of faith in the credibility of the military is now little more than a rhetorical device to be discarded when the strong views of the military conflict with the ideological agenda of certain think tanks and well-heeled pressure groups. I watched intently as our nationâ€™s top military officers â€” â€œ24 starsâ€ represented â€” appeared before the Senate Foreign Relations Committee to urge ratification of the Law of the Sea Convention. These are the senior military leaders, most of whom I know and a couple with whom I have served, charged with leading operations in some of the most volatile corners of the world. They are not only commanding maritime forces, but are also becoming increasingly engaged at the negotiating table â€” and they were unequivocal in testifying that the Law of the Sea is a critical supplementary tool to avoid conflict and avert the gunboat diplomacy that puts young Americans in harmâ€™s way.
Their testimony should not have been a surprise; indeed, it was in part at the behest of the U.S. Navy that President Richard Nixon initiated the process of negotiating the treaty, and the military has consistently supported the treaty. What was surprising to see at the hearing was the vociferousness with which some senators who once urged policymakers to â€œlisten to the commandersâ€ accosted those same military leaders for their long-held views, questioning their veracity and credibility. Those who once said we must â€œlisten to the militaryâ€ now angrily libel that very military.
Enough is enough. I spent 36 years wearing the uniform of a Marine. I know from my own experience that the Law of the Sea Treaty is about national security, not politics â€” and it was deeply disappointing to see our militaryâ€™s integrity questioned.It was disappointing to see a senator belittle the commanders in such a manner, suggesting that they would change their minds after they retire, thus implying that these men merely regurgitated talking points to serve the interests of the Obama administration or were cowed into their position under pressure from â€œthe chain of command.â€
The facts in this case are as follows: First, our military leaders are not kowtowing to any administrationâ€™s line by embracing the Law of the Sea. Their voices join every chairman of the Joint Chiefs of Staff since 1994 â€” 18 years! â€” and nearly two decades of military leaders who concluded that ratification is in our best interests. Current Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey put the militaryâ€™s view succinctly: â€œThis support has been so consistent because of what the convention does for our armed forces and for our national security. Joining the convention would strengthen our ability to apply sea power. It codifies the navigational rights and freedoms necessary to project and sustain our military force.â€
Second, when the military comes to Capitol Hill, they do so in order to express their professional view. Nobody twists their arm to testify. Contrary to what some may think, our military leaders pledge their fidelity not to the president or Congress, but to â€œsupport and defend the Constitution.â€ To suggest otherwise and to imply that these men were advancing a political agenda impugns their integrity and the institutions they represent.
There is a reason these military professionals support the Law of the Sea, and it is not attributable to partisanship or ideology. Think of the young lieutenants commanding patrol boats, Marines standing by to rescue hostages, or the Coast Guardsmen making law enforcement boardings to keep drugs off our streets and terrorists away from our shores. The military advocates this treaty on their behalf â€” because these brave men and women deserve the clarity and continuity that the Law of the Sea provides.
There are other benefits. Joining the treaty is another peaceful tool to help the U.S. bring the full weight of its influence to bear upon resolving disputes. Adm. Sam Locklear, commander of U.S. Pacific Command, speaks to the real-world security environment in the South China Sea, arguing that â€œthe Convention is an important component of [a] rules-based approach and encourages the peaceful resolution of maritime disputes. Here again though, the effectiveness of the U.S. message is somewhat less credible than it might otherwise be, due to the fact that we are not a party to the Convention.â€
Adm. James Winnefeld, vice chairman of the Joint Chiefs of Staff, agrees, suggesting that â€œjoining will â€¦ give us stronger standing to advance treaty arguments in support of partners who are being intimidated over disputes that should be resolved peacefully and voluntarily under the Convention.â€
Some senators seem to think the U.S. can just rely on customary international law to safeguard essential navigational rights and high seas freedoms. But our military leaders know better. Gen. William Fraser, commander of the U.S. Transportation Command, is responsible for making sure we can deploy, sustain and get our warfighters home without the permission of other countries. When asked why we cannot rely on customary international law, he gave a straight answer: â€œAs emerging powers around the world grow and modernize, states may seek to redefine or reinterpret customary international law in ways that directly conflict with our interests. This Convention represents the best guarantee against erosion of essential navigation and over flight freedoms that we take for granted.â€
Our military leaders have enough on their plate these days without having their integrity impugned. Contrived and baseless attacks distract from the core issue at hand: Is America going to lead or be left behind in securing its interests on the high seas? Will the lives of young Americans in uniform be put ahead of politics?
For all these reasons and more, it is critically important that policymakers in Washington begin doing what they once professed so deeply to believe: Where the Law of the Sea Treaty is concerned, it is time to listen to the commanders.
Retired Lt. Gen. John Castellaw served in the U.S. Marine Corps for 36 years. He is president of the Crockett Policy Institute and a board member of the American Security Project.
The Law of the Sea
Tampa Bay Online, June 11, 2012
Opponents warn the United Nations' Convention on the Law of the Sea would undermine the United States' sovereignty and force the nation to financially support an international bureaucracy.
Given the United Nations' track record for waste and its inclination to be more tolerant of oppressive socialists than unfettered capitalism, such skepticism may seem justified.
But much of what is being said about the law, which would establish rights for international waters, is wildly exaggerated.
A recent article in The Wall Street Journal by Henry Kissinger, George Shultz, James Baker III, Colin Powell and Condoleezza Rice, all former secretaries of state for Republican presidents, makes a compelling argument the law would enhance the nation's security and economic interests.
The law, which is being considered for approval by the U.S. Senate, would codify the nation's existing maritime rights and strengthen its access to oil and mineral deposits in international waters, particularly the Arctic, where the authors point out the country "currently has no input into international deliberations over rights."
Russia is trying to stake a claim to those rich deposits, but "as a nonparty to the treaty, the U.S. has limited options for disputing such claims and is stymied from taking full advantage of resources that could be under U.S. jurisdiction. Lack of participation in the convention also jeopardizes economic opportunities associated with commercial deep-sea mining operations in international waters beyond exclusive economic zones â€” opportunities now pursued by Canadian, Austrian and German firms."
The would affirm an "exclusive economic zone" that extends 200 miles nautical miles from a nation's shore, where that nation would have exclusive rights to excavate or manage resources as it wishes.
The United States would have a larger exclusive zone than any other nation. In many places, the U.S. zone would extend far beyond 200 miles, such as in parts of Alaska, where the continental shelf can reach 600 miles.
The law actually would shore up U.S. rights to its natural resources.
The U.S. Chamber of Commerce supports the agreement, recognizing it could be a boon to American enterprises.
Years ago, the proposed agreement included a provision forcing the transfer of deep-seabed mining technology to all parties, something President Ronald Reagan rightly opposed.
But the proposed mandate was eliminated in 1994.
America's military supports the proposal because it would replace vague international law with clear borders.
Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, recently told Congress that sticking with customary law "plays into the hands of foreign states that, over time, want to bend customary law to restrict movement on the oceans.
"And, it puts our warships and aircraft 'on point' to constantly challenge claims."
In addition, the Law of the Sea would bring much-needed oversight to overfishing in international waters.
Presidents Bill Clinton and Barack Obama support the agreement, but so do Presidents George H.W. Bush and George W. Bush.
Any international agreement requires close scrutiny and careful monitoring. But establishing clear legal rights and protections for American interests in the world's seas is a worthwhile objective.
The United States has two core objectives related to international law governing the use and protection of the seas. First is the protection of its substantive interests (military and civilian navigation and communication rights, recognition of domestic authority over offshore fisheries, jurisdiction over the continental shelf and rights of businesses to operate in areas beyond national jurisdiction). The second is the assurance that the international law protecting these interests will be stable and enduring. Presently, the US has secured only the first of these core objectives and is waiting on action by the Senate and the President to secure the second.
After the rapid erosion of the three century old legal order in the years following World War II and the rise of a post-colonial world that refused to be bound by a faltering legal order originally established to advance 17th century mercantile interests, it was necessary to secure a new global consensus governing international use of the oceans.
A set of conventions completed in 1958 attempted to resuscitate the old legal order for the seas with only limited modifications, but failed to resolve conflicts between coastal and maritime interests. In 1960, a second attempt to establish limits on the extent of coastal state authority failed. By mid-decade the US decided on a new approach based on a global effort to address the essential security interests of all states and accommodate their most essential economic and environmental interests a comprehensive agreement that would establish a new order for the oceans. From its early discussions of a new effort, the United States sought an international convention that was comprehensive in scope and universal in membership. Comprehensive so as to address the interests of all states and universal so that there would be no competing regime to undermine the new agreement once it came into force. The ambition of the United States was great: it sought to establish, peacefully and in a span of a few years, a modern legal order for the seas that would protect US interests for generations to come while gaining the support of allies and opponents alike.
This third effort was successful in addressing the first US objective related to substantive interests in the ocean. The 1982 U.N. Convention on the Law of the Sea, packaged with the 1994 Agreement on the Implementation of Part XI of the Convention, meets all U.S. substantive interests in security, economics and environment and has been endorsed by all three republican and democratic presidents serving since the completion of the 1994 Agreement achieved all of President Ronald Reagan's criteria for a satisfactory convention. For this reason, it has been endorsed by the US Navy and Coast Guard, American businesses and major industries, environmental organizations and professional societies.
Although the US achieved its first objective of a convention that fully met US interests, it has failed, like a marathon runner faltering before crossing the finish line, to secure the second objective of stability through universal commitment to the new ocean legal regime. The fault falls solely on the United States because it is the only significant power that has failed to join the Convention. As a result, the goal of every US administration from Richard Nixon to George W. Bush is at risk. This is not a matter of small importance. The rise of regional maritime power in states such as China, India and Brazil make it likely that the balance between freedom of the seas and coastal control of the oceans will be continue to be challenged and that US interests reflected in the Convention will be eroded by customary practice and legal revision unless the US accepts the victory it achieved and buttresses the Convention by becoming the final major ocean power to join it and commit to its support.
Perhaps the greatest threat to the durability of the LOS Convention arises because by staying outside the Law of the Sea Convention the United States holds open the door for other states, dissatisfied with some aspect of the Convention, to leave the Convention in order to exercise the same right claimed by the US to pick and choose among its provisions. As an example, imagine that the Commission on the Limits of the Continental Shelf were to deny a significant portion of Russia's claim to an Arctic continental shelf while at the same time the United States were to make a unilateral claim to a vast area of the Arctic seafloor or that China were to leave the Convention and reject the application of the convention's provisions in determining claims to the seabed surrounding rocks and islets in the South China Sea. Such actions would be universally condemned if the Convention were the sole accepted source of applicable law, but by staying outside the Convention and reserving to ourself how to interpret the law of the sea, the United States provides other states the same right to leave the Convention and to make their own unilateral claims. The loss of one or more major powers in addition to the United States would likely return the world to a period of extending coastal state claims of authority over ocean activities and conflict between claims of coastal state jurisdiction, freedom of navigation, environmental protection and management of the international commons.
It is short sighted and irresponsible to assume that the United States can remain a free rider on a legal regime whose endurance depends on the commitment of other states whose interests differ from those of the United States. Without global recognition of the principles and practices of the Convention, US ocean interests will be condemned to conflict, erosion and diminishment.
The absence of the United States from the Convention is the greatest threat to the stability of global ocean regime that currently favors US interests. The durability of the legal order for the oceans is a critical US national interest that cannot be secured as long as we fail to commit ourselves to its application and support. It is now time for the Senate and the President, with the support and assistance of the military, industry, environmental organizations and experts in law and the sciences, to protect our interests, for ourselves and for our children, by joining the Law of the Sea Convention.
Time to Join The Law of the Sea Treaty
by Henry A. Kissinger; George P. Shultz (Thomas W. and Susan B. Ford Distinguished Fellow; Chair, Energy Policy Task Force; and member of the Working Group on Economic Policy); Condoleezza Rice (Thomas and Barbara Stephenson Senior Fellow and member of the Task Force on Energy Policy); James Baker III; and Colin Powell
The Convention of the Law of the Sea is again under consideration by the U.S. Senate. If the U.S. finally becomes party to this treaty, it will be a boon for our national security and economic interests. U.S. accession will codify our maritime rights and give us new tools to advance national interests.
The convention's primary functions are to define maritime zones, preserve freedom of navigation, allocate resource rights, establish the certainty necessary for various businesses that depend on the sea, and protect the marine environment. Flaws in the treaty regarding deep-seabed mining, which prevented President Ronald Reagan from supporting it, were fixed in 1994. Presidents Bill Clinton and George W. Bush have supported ratification, as do Presidents George H.W. Bush and Barack Obama, because it is in the best interest of our nation. Yet the U.S. remains one of the few major countries not party to the convention.
The treaty provides substantial economic benefits to the U.S. It accords coastal states the right to declare an "Exclusive Economic Zone" where they have exclusive rights to explore and exploit, and the responsibility to conserve and manage, living and nonliving resources extending 200 nautical miles seaward from their shoreline. Our nation's exclusive zone would be larger than that of any country in the worldâ€”covering an area greater than the landmass of the lower 48 states. In addition, the zone can be extended beyond 200 nautical miles if certain geological criteria are met; this has significant potential benefits where the U.S.'s continental shelves may be as broad as 600 miles, such as off Alaska, where vast natural resources lie.
As the world's pre-eminent maritime power with one of the longest coastlines, the U.S. has more than any other country to gainâ€”and to loseâ€”based on how the convention's terms are interpreted and applied. By becoming party to the treaty, we would strengthen our capacity to influence deliberations and negotiations involving other nations' attempts to extend their continental boundaries.
The U.S. currently has no input into international deliberations over rights to the Arctic, where rich energy and mineral resources are found more than 200 nautical miles from any country's shoreline. Russia has placed its flag on the North Pole's ocean floor. This is a largely symbolic act, but the part of the Arctic Ocean claimed by Russia could hold oil and gas deposits equal to about 20% of the world's current oil and gas reserves.
As a nonparty to the treaty, the U.S. has limited options for disputing such claims and is stymied from taking full advantage of resources that could be under U.S. jurisdiction. Lack of participation in the convention also jeopardizes economic opportunities associated with commercial deep-sea mining operations in international waters beyond exclusive economic zonesâ€”opportunities now pursued by Canadian, Australian and German firms.
Some say it's good enough to protect our navigational interests through customary international law, and if that approach fails then we can use force or threaten to do so. But customary law is vague and doesn't provide a strong foundation for critical national security rights. What's more, the use of force can be risky and costly. Joining the convention would put our vital rights on a firmer legal basis, gaining legal certainty and legitimacy as we operate in the world's largest international zone.
The continuing delay of U.S. accession to the convention compromises our nation's authority to exercise our sovereign interest, jeopardizes our national and economic security, and limits our leadership role in international ocean policy.
Our planet's environment is changing, and there is an increasing need to access resources responsibly. We can expect significant change and resulting economic benefit as the Arctic opens and delivers potentially extraordinary economic benefit to our country. Our coastline, one of the longest in the world, will increase.
These changes and the resulting economic effects are the substance of serious international deliberations of which we are not a part. Time moves on and we are not at the table. This is a serious problem and a significant cost for future generations of Americans.
Maritime claims not only in the Arctic but throughout the world are becoming more contentious. As aggressive maritime behavior increases, the U.S. military has become more, not less, emphatic on the need to become party to this treaty. Current and past military leaders are firmly behind accession, because while nothing in the convention restricts or prohibits our military activity, it is the best process for resolving disputes.
We have been on the sidelines long enough. Now is the time to get on the field and lead.
The authors all have served as secretary of State in Republican administrations.
In confirmation hearings at the Senate Armed Services Committee for his nomination to become Commander of Pacific Command, Admiral Samuel J. Locklear was asked by Chairman Levin whether he supports US accession to the UN Convention on the Law of the Sea.
Here is the dialog:
Thank you, Admiral.
Can you tell us whether you support the United States joining the United Nations Treaty on the Law of the Sea?
Mr. Chairman, I do support the United States joining the United Nations Convention on Law of the Sea.
And why is that?
It has been my observation as a -- as a naval officer for many years that as this subject has been debated that having this tool or be a member of this important -- important United Nations initiative will provide us a better framework globally for us -- as there are competing interests globally, particularly as economic zones are discussed, as we start looking at resources that are on the seabed.
It allows us a better mechanism to be able to have a legal discussion that prevents us from having miscalculated events. It overall provides us a better framework for better future security.
From Adm. Locklear's responses to written questions:
Do you support U.S. accession to the United Nations Convention on the Law of the
Sea? If so, why?
I support U.S. accession to the Law of the Sea Convention. It is in the enduring interests of the United States to be at the forefront of promoting the rule of law, including in the worldâ€™s oceans. U.S. accession to the Convention would send an additional, clear signal to the world that we remain committed to advancing the rule of law at sea. Additionally, under the Convention, the United States would have the firmest possible legal foundation for the rights, freedoms, and uses of the sea needed to project power, reassure allies
and partners, deter adversaries, respond to crises, sustain deployed combat forces, and secure sea and air lines of communication that underpin international trade and our own economic prosperity.
Would U.S. accession to the United Nations Law of the Sea Convention benefit the
U.S. militaryâ€™s mission in the Asia-Pacific region? If so, how?
U.S. accession to the Law of the Sea Convention would benefit the U.S. militaryâ€™s mission in the Asia-Pacific region by enabling the United States to reinforce and assert the Convention's rights, freedoms, and uses of the sea, including the right of innocent passage of U.S. warships through the territorial seas of other nations, the right of transit passage of U.S. warships and aircraft in strategic straits, and the freedom of U.S. forces to conduct a wide range of military activities beyond the territorial seas of any coastal state. In addition, becoming a Party to the Convention would support combined operations with regional partners and demonstrate our commitment to conduct Proliferation Security Initiative activities consistent with international law; establish undisputed title to our extended continental shelf areas; strengthen our position in bilateral discussions with the Peopleâ€™s Republic of China; and bolster our leadership in future developments in the law of the sea. Accession would also improve the United Statesâ€™ position and add to our credibility in a large number of Asia-focused multilateral venues where Law of the Sea matters are discussed.
It is important to note that the United States was one of the leaders of the Conventionsâ€™ negotiations and our national interests â€“ as both a coastal nation and maritime nation â€“ are reflected in its provisions. Consequently, accession by the United States would send a powerful and affirmative message to the international community that the U.S. believes the legal regime reflected in the Convention is worth supporting and upholding against any nation that might seek to manipulate the ordinary and intended meaning of certain provisions in its self-interest. In short, ratification would enhance stability for international maritime rules and the freedom of access for U.S. forces in the USPACOM AOR to execute assigned missions.
Adm. Locklear is currently serving as Commander, US Naval Forces Europe and Commander, Allied Joint Forces Command Naples.
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 Treatyâ€”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
Mr. Williamson served as State Department Legal Adviser from 1990 to 1993.
The editorial below appeared on the Businessweek.com website
on Thursday, October 6, 2011.
To Rule the Arcticâ€™s Waves, U.S. Canâ€™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 regionâ€™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 wonâ€™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 worldâ€™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 Russiaâ€™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 shipâ€™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 doesnâ€™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 Arcticâ€™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.
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. Thatâ€™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.
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 Chinaâ€™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 worldâ€™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.
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. canâ€™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 Arcticâ€™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 regionâ€™s indigenous people -- addresses safety and environmental issues. But it doesnâ€™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.
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 thereâ€™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 whoâ€™ve voiced support for the treaty, itâ€™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.
--Editors: Lisa Beyer, Max Berley
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.
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:
Antrim-Galdorisi Article in USNI Procedings
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