RATIFY THE LAW OF THE SEA TREATY

Dear Colleague:

Recently, 36 Members of Congress wrote to the Senate to oppose U.S. accession to the United Nations Convention on the Law of the Sea. While I respect the position of my colleagues, such opposition should be based on accurate representations of the treaty and its implications for U.S. national and economic security. This is an urgent matter and, as a former Vice Admiral in the U.S. Navy, I can attest that this is a national security issue. Senate failure to accede to the Convention this year will adversely impact our economy, security and the environment:

• The Convention will greatly enhance U.S. national security. The Joint Chiefs have urged accession now in order to codify “navigation and over-flight rights and high seas freedoms that are essential for the global mobility of our armed forces.” The Coast Guard needs accession in order to “interdict illicit drug traffickers and illegal immigrants far beyond our own waters.” And the framework of rules provided by the Convention will strengthen our coalition efforts to fight nuclear proliferation through the Proliferation Security Initiative and regional maritime security arrangements.
• Norway and Russia have already submitted claims to extend recognition of their continental shelves in the Arctic – which only State Parties to the Law of the Sea Convention may do. The United States stands to gain recognition of continental shelf extensions as far as 600 miles offshore. But without a seat at the table, we cannot present data to substantiate our claims or to challenge Canada’s forthcoming claim, which will likely conflict with one of our own. Given the extensive resource wealth in the Arctic seabed, nothing less than the energy security of our country is at stake.
• The convention safeguards imperiled marine habitats by strengthening the ability of nations to enforce environmental regulations within their national jurisdiction and empower them to stop harmful pollution and ocean dumping caused by previously unregulated ships. The convention also contains special measures to save endangered whales, salmon, and other marine mammals. It allows U.S fisheries and those of other coastal states to set limits within their 200 miles economic zone while protecting dwindling migratory fish stocks such as tuna and billfish on the high seas.

Please consider the following information when considering your position regarding this important treaty that could benefit U.S. national security, our economy, and the environment:

• If the U.S. were to join the Convention:
  • the United States could extend its exclusive sovereignty over living and non-living resources of the continental shelf up to 600 miles offshore.
  • the United States will have an effective veto over all critical decisions of the International Seabed Authority (ISA), which recognizes claims to resources in the seabed beyond the limits of national jurisdiction. This includes the budget, rules and regulations, and distribution of royalty payments. U.S. oil and gas and deep-sea mining industries are in favor of the royalties regime set up under the Convention, which does not provide for taxation of American citizens.
  • The 1994 Implementing Agreement to the Convention, which satisfied all of the Reagan Administration’s reservations, explicitly states that the mandatory technology transfer language in the Convention “does not apply.”
• Military activities are not subject to dispute resolution under the treaty. The United States has already agreed to provisions limiting military activities in the territorial waters of other states in the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States has been a State Party for over half a century. In fact, National Security Advisor Hadley has informed the Senate that joining is “essential to the formulation and implementation of the President’s National Security Strategy as well as the National Strategy for Maritime Security.”
• Negotiations on the Law of the Sea Convention were initiated by the U.S. and, as President Reagan said, are consistent with our balance of interests. Moreover, President Reagan clearly articulated U.S. objections to the original Convention, all of which were addressed in the 1994 Agreement. The diary entry quoted by my colleagues’ letter refers to the option of ratifying the treaty piecemeal, without the seabed mining provisions. President Reagan’s Secretaries of State, National Security Advisor, and numerous other officials in his administration agree that the Convention in its current form achieves all of U.S. goals in negotiations.

Again, as a former Vice-Admiral in the U.S. Navy, I can attest to the great benefits that accession would offer to our men and women in uniform – and the unnecessary peril to them and to U.S. interests that our absence from the Convention is creating. As the only nation that is truly globally deployed, the U.S. has a unique stake in the stability and reliability of international ocean law. We cannot continue to rely on customary international law, which drifts over time and whose application can be unpredictable, to guarantee our rights at sea.

I do not make these assertions merely on my own behalf. The views espoused in this letter are shared by all living State Department Legal Advisors, all living Chiefs of Naval Operations, as well as President Bush, his National Security Advisor and Council on Environmental Quality, and his Secretaries of State, Defense, Interior, Commerce, and Homeland Security. In addition, ratification is supported by a diverse coalition of business groups, environmental organizations, scientific and research institutes, and military reserve organizations.

I urge you to carefully consider the question of advice and consent to the United Nations Convention on the Law of the Sea Convention and support United States accession.

Sincerely,

JOE SESTAK
Member of Congress

While the declaration recognizes the responsibilities on the five states that result from the legal regime, it also recognizes that other states will participate in development and protection under the provisions of international law and through the international Maritime Organization, the Arctic Council and other relevant international fora.

View the Ilulissat Declaration of the five Arctic States, May 28, 2008. What the declaration does, however, is make clear that there will be no negotiation of an alternative regime for the Arctic Ocean that would be contrary to the provisions of the LOS Convention.

Edwin Williamson: “Edwin Williamson, Sullivan and Cromwell, You’re here in the bowels of one of the most outspoken critics of the Law of the Sea Convention, Heritage web site claims, for example, that the ratification of this treaty will undermine our military and intelligence operations – shouldn’t you take this opportunity to comment on the nature and quality of this criticism and the importance of ratification of this treaty?”

Admiral Mullen: “I think it’s very important that we ratify this treaty, I am in the military and I don’t subscribe to those views, and in fact, I think that ratification of this treaty offers an opportunity to participate, and part of this for me is the world that we’re living in now versus the world when that treaty came online initially back in the early 80s I think and there were some challenges with that and those have been repaired, those have been changed, not the least of which was the issue tied I think to mineral rights… I’m someone that grew up around the world and engaging… and I’m very sensitive quite frankly, to the sea aspect of this and the constraints that certain countries could have on the freedom of being able to navigate around the world in a world that’s getting smaller not physically but certainly from the global perspective… so I think those rights that are tied to what’s on that treaty are very important, not just now, but in the future. We are one of the very few outliers in terms of ratification of that treaty, and my view is I think it’s more important to be at the table than to be outside trying to make your case out there and it’s an important one to us in the military.”

On January 29, 1982, President Reagan announced that his administration had completed its review of the draft convention on the law of the sea and was returning to the negotiations to negotiate an acceptable convention. He identify six areas, all in the deep seabed mining provisions, that needed to be addressed and sated that if acceptable solutions were obtained to these issues then his administration would support ratification of the resulting convention.

Recently, opponents of the Convention have tried to cast Reagan's opposition in broader terms, but this statement, which was intended for foreign as well as domestic audiences, makes clear the limited nature of his opposition:

Our review has concluded that while most provisions of the draft convention are acceptible and consistent with U.S. interests, some major elements of the deep seabed mining regime are not acceptable.

I am announcing today that the United States will return to those negotiations and will work with other countries to achieve an acceptable treaty. In the deep seabed mining area, we will seek changes necessary to correct those unacceptable elements and to achieve the goal of a treaty that will:

• Not deter development of any deep seabed mineral resources to meet national and world demand;
• Assure national access to these resources by current and future qualified entities to enhance U.S. security of supply, to avoid monopolization by the operating arm of the international authority, and to promote the economic development of the resources;
• Provide a decisionmaking role in the deep seabed regime that fairly reflects and effectively protects the political and economic interests and financial contributions of participating states;
• Not allow for amendments to come into force without approval of the participating states, including, in our case, advice and consent of the Senate;
• Not set other undesirable precedents for internatiional organizations; and
• Be likely to receive the advice and consent of the Senate. In this regard, the convention should not contain provisions for mandatory transfer of private technology and participation by and funding for national liberation movements.

The United States remains committee to the multilateral treaty process for reaching agreement on law of the sea. If working together at the conference we can find ways to fulfill these key objectives, my Administration will support ratification.

President Ronald Reagan

Statement on United States Oceans Policy

March 10, 1983

The United States has long been a leader in developing customary and conventional law of the sea. Our objectives have consistently been to provide a legal order that will, among other things, facilitate peaceful, international uses of the oceans and provide for equitable and effective management and conservation of marine resources. The United States also recognizes that all nations have an interest in these issues.

Last July, I announced that the United States will not sign the United Nations Law of the Sea Convention that was opened for signature on December 10. We have taken this step because several major problems in the Convention's deep seabed mining provisions are contrary to the interests and principles of industrialized nations and would not help attain the aspirations of developing countries.

The United States does not stand alone in those concerns. Some important allies and friends have not signed the convention. Even some signatory states have raised concerns about these problems.

However, the convention also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.

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.

Within this Zone all nations will continue to enjoy the high seas rights and freedoms that are not resource related, including the freedoms of navigation and overflight. My proclamation does not change existing United States policies concerning the continental shelf, marine mammals, and fisheries, including highly migratory species of tuna which are not subject to United States jurisdiction. The United States will continue efforts to achieve international agreements for the effective management of these species. The proclamation also reinforces this government's policy of promoting the United States fishing industry.

While international law provides for a right of jurisdiction over marine scientific research within such a zone, the proclamation does not assert this right. I have elected not to do so because of the United States interest in encouraging marine scientific research and avoiding any unneccessary burdens. The United States will nevertheless recognize the right of other coastal states to exercise jurisdiction over marine scientific research within 200 nautical miles of their coasts, if that jurisdiction is exercised reasonably in a manner consistent with international law.

The Exclusive Economic Zone established today will also enable the United States to take limited additional steps to protect the marine environment. In this connection, the United States will continue to work through the International Maritime Organization and other appropriate international organizations to develop uniform international measures for the protection of the marine environment while imposing no unreasonable burdens on commercial shipping.

The policy decisions I am announcing today will not affect the application of existing United States law concerning the high seas or existing authorities of any United States Government agency.

In addition to the above policy steps, the United States will continue to work with other countries to develop a regime, free of unnecessary political and economic restraints, for mining deep seabed minerals beyond national jurisdiction. Deep seabed mining remains a lawful exercise of the freedom of the high seas open to all nations. The United States will continue to allow its firms to explore for and, when the market permits, exploit these resources.

The administration looks forward to working with the Congress on legislation to implement these new policies.

From PROCLAMATION 5928 issued by President Reagan on Dec. 27, 1988:

In accordance with international law, as reflected in the applicable provisions of the 1982 United Nations Convention on the Law of the Sea, within the territorial sea of the United States, the ships of all countries enjoy the right of innocent passage and the ships and aircraft of all countries enjoy the right of transit passage through international straits.

William Clark and Edwin Meese doubtless have rich personal perceptions of President Reagan's attitudes ("Reagan and the Law of the Sea," editorial page, Oct. 8). But, as a man of his word, what counts for the rest of us is what he told the American people. Following a lengthy review of the draft convention on the law of the sea by his administration, on Jan. 29, 1982, President Reagan stated, "While most provisions of the draft convention are acceptable and consistent with U.S. interests, some major elements of the deep seabed mining regime are not acceptable." He then identified six objectives for the ensuing negotiations; all six related exclusively to the deep seabed mining regime. President Reagan unequivocally stated that if the negotiations could fulfill these "six key objectives," the "administration will support ratification" of the convention.

Although those six objectives were not fulfilled while Reagan was in office, his successor, George H.W. Bush, initiated new negotiations that eventually succeeded in doing just that. It is that package -- the agreement changing the deep seabed mining regime coupled with the text that Reagan deemed acceptable -- that his secretaries of state, Alexander Haig and George Shultz, as well as his chief of staff and secretary of the treasury, James Baker, urged the Senate to approve.

Bernard H. Oxman
Professor of Law
University of Miami
Miami

Name	Period as CNO	Endorsement
ADM Gary Roughead	2007 – Present	CNO Confirmation Hearings
ADM Michael Mullen	2005 – 2007	2007 CJCS Confirmation Hearings
ADM Vern Clark	2000 – 2005	2004 Testimony
ADM Jay L. Johnson	1996 – 2000	Letter in 2000
ADM Frank B. Kelso II	1990 – 1994	1998 Letter
ADM Carlisle A.H. Trost	1986 – 1990	1998 Letter
ADM James D. Watkins	1982 – 1986	1998 Letter
ADM Thomas B. Hayward	1978 – 1982	1998 Letter
ADM James L. Holloway III	1974 – 1978	1998 Letter
ADM Elmo R. Zumwalt	1970 – 1974	1998 Letter
ADM Thomas H. Moorer	1967 – 1970	1998 Letter

From a global business perspective, we need a unified Arctic plan based on an acceptable treaty. Being the most powerful nation on earth, it is expected that the U.S. will be supporting the Law of the Sea Treaty, which was favored by the Senate Foreign Relations Committee by a 17-4 vote last November. It is also critical that we favor the 1982 United Nations Convention on the Law of the Seas (UNCLOS). Many people and organizations are endorsing this treaty. Two former secretaries of state (James Baker and George Shultz), former admirals, various industry organizations, politicians and business leaders from the U.S. have supported the treaty. For the U.S., the contentious treaty issues continue to be national sovereignty and security, coastal state extension and the continental shelf beyond 200 miles, taxation, exploration and licensing rights, and problems of eminent domain.

March 13, 2008

Dear Senator Reid and Senator McConnell,

I am writing concerning the United Nations Convention on the Law of the Sea. The Convention was voted on favorably by the foreign Relations Committee and needs to be brought to the full Senate for a vote.

I have followed the Law of the Sea negotiations since the late 1970s and I support US ratification of the Convention. Timing is critical and recent events clearly illuminate the importance of the Law of the Sea Convention to our nation.

Last summer Russian politicians and scientists used submersibles to plant their flag at the North Pole. This event was carried out to enhance the Russian claim for an extended continental shelf in the Arctic. Flag planting does not constitute a claim. However the event does confirm the strategic value of obtaining the undisputed rights of the Arctic seafloor. The other circum-Arctic nations: Canada, Denmark (for Greenland)and Norway have ratified the convention and have or are preparing to submit their claims for extended continental shelves on other sections of the Arctic seafloor. Because we have not ratified the Convention, our nation is completely out of the game as these claims are evaluated. In addition our nation has no feasible avenue to introduce our own claim to the Arctic seafloor, where our national jurisdiction could extend 600 miles north of the Alaskan coast. The Arctic is not the only location off the US coast where we could claim an extended continental shelf.

Other nations among them: Australia, Brazil, France, Mexico and New Zealand have submitted extensive seafloor claims. Again, because we have not ratified the Convention we are excluded from commenting on their claims or participating in the evaluation process.

It is time for this situation to change and for the Senate to vote and ratify the Convention.

The Convention is the constitution for the seas. The continental shelf claims are currently in the limelight, but the other aspects of the Convention, national security, environmental protection and dispute settlement are no less important.

In closing, I recognize that the Convention is not perfect, no document negotiated over 75 weeks by 130 plus nations could be. Nevertheless, more than 154 nations have ratified the Convention. These nations are at work implementing the Convention and our nation needs to join them, not only for our own purposes by to insure legitimate governance of the world's resources.