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.
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 Obama Administration has completed its review of pending treaties and conventions. On May 11th, Richard Verma, Assistant Secretary of State for Legislative Affairs, wrote to Senators Kerry and Lugar (Chairman and Ranking Minority Member of the Senate Foreign Relations Committee) to announce the Administration supports action on 17 treaties and conventions at this time. The 1982 UN Convention on the Law of the Sea, with the 1994 Agreement on Implementation, are on this short list for action.
The PDF of the transmittal letter and list of treaties and conventions before the Seante, identifying those on which the Administration is requesting action, may be viewed by clicking here.
The Law of the Sea Convention, along with the International maritime Organization and the Arctic Council, form the core of the regime that governs the Arctic. In this regime the five nations that border the Arctic Ocean have the primary responsibility to managing activities in the region, including both development and environmental protection.
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.
It has become popular among parties on both side of the LOS issue to tell others what Ronald Reagan felt about the LOS Convention. I think it is best to let President Reagan's own words, carefully considered and distributed around the world, speak for him.
The following statement was given by President Reagan after he and his national security council decided that the United States would not continue in the LOS process and would not sign the Convention that emerged from the final negotiating session earlier that year. It is a definitive and unbiased source - much more so than the statements of policy advisors overruled by Reagan in 19882 or a short, ambiguous comment in his nighttime diary. This statement is what Ronald Reagan told the world - his honor and reputation stood behind it.
The sections related to President Reagan's reasons for rejecting the convention is underlined in the text below. Otherwise this is the complete and unedited statement by the president.
Ronald Reagan, 40th President of the United States
Statement on United States Actions Concerning the Conference on the Law of the Sea
July 9th, 1982
The United States has long recognized how critical the world's oceans are to mankind and how important international agreements are to the use of those oceans. For over a decade, the United States has been working with more than 150 countries at the Third United Nations Conference on Law of the Sea to develop a comprehensive treaty.
On January 29 of this year, I reaffirmed the United States commitment to the multilateral process for reaching such a treaty and announced that we would return to the negotiations to seek to correct unacceptable elements in the deep seabed mining part of the draft convention. I also announced that my administration would support ratification of a convention meeting six basic objectives.
On April 30 the conference adopted a convention that does not satisfy the objectives sought by the United States. It was adopted by a vote of 130 in favor, with 4 against (including the United States) and 17 abstentions. Those voting "no" or abstaining appear small in number but represent countries which produce more than 60 percent of the world's gross national product and provide more than 60 percent of the contributions to the United Nations.
We have now completed a review of that convention and recognize that it contains many positive and very significant accomplishments. Those extensive parts dealing with navigation and overflight and most other provisions of the convention are consistent with United States interests and, in our view, serve well the interests of all nations. That is an important achievement and signifies the benefits of working together and effectively balancing numerous interests. The United States also appreciates the efforts of the many countries that have worked with us toward an acceptable agreement, including efforts by friends and allies at the session that concluded on April 30.
Our review recognizes, however, that the deep seabed mining part of the convention does not meet United States objectives. For this reason, I am announcing today that the United States will not sign the convention as adopted by the conference, and our participation in the remaining conference process will be at the technical level and will involve only those provisions that serve United States interests.
These decisions reflect the deep conviction that the United States cannot support a deep seabed mining regime with such major problems. In our view, those problems include:
Provisions that would actually deter future development of deep seabed mineral resources, when such development should serve the interest of all countries.
A decision-making process that would not give the United States or others a role that fairly reflects and protects their interests.
Provisions that would allow amendments to enter into force for the United States without its approval. This is clearly incompatible with the United States approach to such treaties.
Stipulations relating to mandatory transfer of private technology and the possibility of national liberation movements sharing in benefits.
The absence of assured access for future qualified deep seabed miners to promote the development of these resources.
We recognize that world demand and markets currently do not justify commercial development of deep seabed mineral resources, and it is not clear when such development will be justified. When such factors become favorable, however, the deep seabed represents a potentially important source of strategic and other minerals. The aim of the United States in this regard has been to establish with other nations an order that would allow exploration and development under reasonable terms and conditions.
It is generally anticipated that the Senate Foreign Relations Committee will hold two days of hearings on the subject of US accession to the LOS Convention, with the first day devoted to hearing from Government representatives and the second day to non-government witnesses. It is expected that the hearings will be held in late September and early October.
As of today (September 8, 2007) the dates of the hearings have not been announced nor have witness lists been confirmed. We will post this information as soon as it is confirmed by the Committee.
<img align="right" alt="Chukchi Plateau north of Alaska" border="0" height="367" width="338" vspace="5" hspace="5"src="http://www.oceanlaw.org/downloads/chukchi_plateau.jpg" />
The Russian research expedition to survey the Arctic seabed, highlighted by the placing of the Russian flag on the floor of the ocean at the North Pole, has gained much attention - more because it was billed as Russia laying claim to the north pole than for the extraordinary nature of the extended marine science operations under the ice cap.
Actually, this expedition is part of the Russian effort to obtain international recognition of their claim to portions of the Arctic ocean floor in the only way possible: by conducting research that may prove that part of the ocean floor is a submerged extension of the Asian continent and submitting it to the Commission on the Limits of the Continental Shelf, an international commission of experts in marine geology established by the UN Convention on the Law of the Sea. If the Commission agrees with the Russian claim, then it will be binding on all 155 parties to the UN Convention on the Law of the Sea. And even though the US has yet to ratify the Convention, the recognition of the claim by every industrialized country other than the US and by most of the developing world will make the resources of the claimed portion under the sovereign authority of Russia. If the Commission does not agree that the data supports the claim, then Russia will have to try again to obtain the Commission's approval, either with better data or a different claim.
In all the hoopla about the Russian expedition, only a little attention has been paid to America's own potential claim to the Arctic Floor. In 1980, Ambassador Elliot Richardson spoke to the Conference on the Law of the Sea to declare that it was the understanding of the United States that the terms of the Convention would allow the United States to claim the sub-sea territory known as the Chukchi Plateau. This area is located more than 600 miles north of Alaska and may be rich in oil and gas resources (though that won't be known until exploration activities are undertaken in the area).
Richardson's statement still holds true - the United States can claim the Chukchi Plateau as well as other portions of the Alaskan continental shelf beyond the 200 nautical mile Exclusive Economic Zone and even the 350 NM limit to most claims over the continental shelf. But making a unilateral claim does not achieve what Russia is seeking - international recognition of sovereign authority over the seabed resources in the area of its claim.
The US is limited by its failure to join the Law of the Sea Convention: without being a party, its claim cannot be reviewed by the Commission on the Limits of the Continental Shelf, and without the Commission's approval, a US claim will not be recognized by others. One can ask, "does that matter?" In fact, it matters a great deal. The oil industry is a multinational one, with projects and investments around the world and the same is true for the international banks that help finance oil and gas development. Offshore development in deep, ice-frequented water requires huge investment and is fraught with technical risks. Businesses with operations in countries that recognize the LOS Convention (notably Russia) are not likely to be willing to bear the legal, economic and political risks the may result from the lack of international recognition of US authority over the resources of the Chukchi Plateau. They may be even less willing to risk their relationships with the host countries of their other operations and opportunities.
Some opposition to the Law of the Sea Convention has been based on second hand information that claims that an international organization would be created to control all aspects of ocean use in, under and above the high seas. Such claims are incorrect.
There is only one organization created by the Convention that has any role in managing the use of the seas - the International Seabed Authority. The role of the Authority is circumscribed by the following definitions:
Article 1, para 1(1) “Area” means the sea-bed and the ocean floor and sub-soil thereof, beyond the limits of national jurisdiction.
Article 1, para 1(3): “activities in the Area” means all activities of exploration for, and exploitation of, the resources of the Area.
Article 133 (a): “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules;
Article 133 (b): resources, when recovered from the Area, are referred to as “minerals.”
This limit is further clarified by article 135:
Neither this Part nor any rights granted or exercised pursuant thereto shall affect the legal status of the waters superjacent to the Area or that of the air space above those waters.
In short, the Authority has jurisdiction to manage (under the terms of Part XI of the Convention) the exploration and exploitation of the mineral resources on and under the seabed beyond both the 200 mile exclusive economic zone and the extended continental shelf (as recognized by the International Commission on the Limits of the Continental Shelf). In its function, the Authority is similar to national regulatory agencies such as the Minerals Management Service in the United States.
An overview of the Convention can be found from the American Society of International Law: Read <a href="http://asil.org/insights/2007/06/insights070611.html" target=_blank>ASIL Insights, by David Caron and Harry Scheiber
Who supports the LOS Convention? Read <a href="http://www.oceanlaw.org/downloads/unclos/frist-aug05.pdf" target=_blank>this letter signed by leaders in business, environment, academia and government.
Here is some helpful commentary on the LOS Convention
Read the views of the Deputy Secretaries of State and Defense in their <a href="http://washingtontimes.com/op-ed/20070612-085216-2972r.htm" target=_blank>Washington Times article
For a Conservative assessment, read the recommendation by Ken Adelman, long time critic of the 1982 Convention, who has assessed the changes made by the 1994 Convention and now recommends that the US join the Convention - from the <a href="http://online.wsj.com/article/SB118075323916122361.html?mod=googlenews_wsj" target=_blank>Wall Street Journal Subscription is required to read the full article, but the concluding sentence is: "This LOS treaty, a product of slow-motion yet effective diplomacy, was worth the wait. I'd never thought I'd say it, but -- here goes! -- the Senate should now ratify it."
A <a href="http://online.wsj.com/article/SB118196111259837508.html?mod=googlenews_wsj" target=_blank>letter to the editors of the Wall Street Journal by RAdm. Horace Robertson, USN (ret.) response to errors and misrepresentations in an earlier editorial.
Read a "Progressive" view on the Convention in <a href="http://www.fpif.org/fpiftxt/4286" target=_blank>Foreign Policy in Focus.
Here are some "Classics" from the archives of materials written about the LOS Convention:
From Foreign Affairs, spring, 1980, pp 902-919 is "Power, Mobility and the Law of the Sea" by Elliot L. Richardson. This is one of the most insightful articles written on US interests in the Convention and should be read by every student, scholar and statesmen involved with the LOS Convention. While sections that focus on the mobility interests of the Soviet Union are dated, the underlying issues and alternatives are still valid today.
Also by Elliot Richardson, "Prevention of Vessel-Source Pollution: An Attainable Goal," from Oceans, May/June, 1980. This article provides a description of the balance the Convention creates between the rights of the flag state, the port state and the coastal state in addressing vessel-source pollution and identifies particular benefits the Convention provides to all parties.