The United States led the world in the negotiations leading to the Convention on the Law of the Sea. Under President Nixon a unique National Security Council office was created which coordinated eighteen federal agencies and a 100 member private sector advisory committee representing the full spectrum of affected American industry and oceans interests. Rarely has federal policy so fully represented all affected American interests or so fully utilized the extraordinary resources of the entire United States Government in an international negotiation.
The result was one of the most stunning successes in multilateral negotiations in American history. Crucial security issues such as submerged transit of straits for the nation's SSBN submarines were fully achieved. Navigational freedom, so essential for trade and naval mobility, was maintained. The final Convention, as intended, has served as a bulwark against illegal coastal state claims which had seriously jeopardized American oceans interests. In these negotiations the United States also achieved the largest economic zone and continental shelf in the world. These areas extended national sovereign rights over resources into the oceans in an area larger than the continental United States and Alaska -- an expansion far greater than the Louisiana Purchase and the acquisition of Alaska combined. Preliminary work in delimiting our extended continental shelf suggests that our shelf off Alaska will likely extend more than 500 nautical miles into the Arctic. The resulting expansion of United States fishery resources and access to promising deposits of oil and gas are of enormous importance economically.
The negotiations to protect United States assured access to deep seabed mineral resources in areas beyond national jurisdiction, necessary to provide needed property rights for seabed sites the size of the State of Rhode Island, proved more difficult. It was not until 1994, after the demise of the "new international economic order" sought by developing countries and the collapse of the former Soviet Union, that a renegotiation of Part XI of the Convention was possible which fully met all of the conditions which had been set by President Reagan a decade earlier. The United States, with the leading technology in the world in deep seabed mining had four huge mine sites guaranteed, more than any other nation in the world and in an extraordinary departure in international protocol was given the only permanent seat (with veto) on the Council of the new International Seabed Authority set up to facilitate deep seabed mining.
Subsequent to the successful changes on seabed mining the Convention has achieved overwhelming international support. At present it is in force for 161 countries plus the European Union. This includes all of the permanent members of the Security Council but the United States and, with the exception of Turkey which has a special delimitation issue with Greece, all members of NATO but the United States.
President Clinton presented the revised Convention to the Senate in 1994 and it has subsequently been favorably reported out from the Senate Foreign Relations Committee in 2004 and 2007. Seventeen years after meeting all of President Reagan's conditions every American President of both parties has supported the Convention. The Joint Chiefs of Staff, the Coast Guard, and the Secretary of Homeland Security have been strongly supportive, as have every affected oceans group including the oil and gas industry. Indeed, the extensive list of supporters includes all living Chiefs of Naval Operations, all living Secretaries of State of the United States, the United States Chamber of Commerce, the Financial Roundtable, the National Ocean Industries Association, the United States Oceans Policy Commission (a bi-partisan group appointed by Congress and the President to examine US Oceans Policy), and the National Governor's Association, including then-Governor Palin.
Yet tragically the Convention has never been allowed a Senate vote. Since 1994 it has been blocked by widespread circulation of distortions about the Convention. As Secretary Michael Chertoff, the head of Homeland Security under the George W. Bush Administration, put it in a letter of September 26, 2007, to the Chairman of the Senate Foreign Relations committee ". . . there is a small group of strident opponents who have raised a number of badly flawed arguments against the Convention." These arguments, apparently ideologically driven, assert that the Convention takes away American sovereignty, when to the contrary the Convention achieves an unprecedented expansion of national sovereignty over the resources of the ocean off our coast. They assert, in direct contradiction to the clear and consistent statements of the Navy and the Coast Guard, that the Convention would harm American security. Thus, as Secretary Chertoff went on to say in his letter strongly supporting the Convention: "The entire civilian and military leadership responsible for our Nation's security, from the President and his National Security Advisor on down, unanimously support the Convention without reservation." The opponents assert that the Convention would not be supported by President Reagan when to the contrary the Reagan review supported the Convention with the exception of the needed changes in Part XI which were subsequently met in full in the 1994 changes.
The critics seem naively to believe that America can simply shoot its way around the oceans, apparently including shooting our NATO allies, such as Canada, with whom we disagree about Arctic straits. Most shamefully, the critics repeat, despite all correction, that the Convention would turn the oceans over to the United Nations. But to the contrary, in its 200 nautical mile economic zones and extended coastal state continental shelves the Convention embodies one of the greatest expansions of national jurisdiction in history and absolutely nothing is turned over to the United Nations. Moreover, the closely cabined International Seabed Authority (ISA), necessary to create bankable property rights for seabed mining, only has jurisdiction over mineral resources of the seafloor in areas beyond national jurisdiction. Far from a menacing international agency poised to take over the world, after a quarter-century of operation the ISA has a staff of 39, considerably smaller than the staff of at least one of the domestic organizations most visibly opposing the Convention. The ISA is simply a small garden variety specialized international agency similar to many in which the United States participates, for example the Great Lakes Fisheries Commission. Even were the critics correct, United States non-adherence to the Convention would not in the slightest end the ISA or change the Convention which is one of the most widely adhered to in the world.
If adherence to the Convention made no difference perhaps this would simply be another lesson that strident political debate can sometimes harm the nation, as with the isolationist rhetoric of the America First Movement before World War II. But sadly the over quarter-century of United States non-adherence is severely harming the Nation. On a daily basis adversaries such as Iran use American non-adherence to assert that our Navy does not enjoy the protections of the Convention. China uses our non-party status to challenge our naval presence in the South China Sea and the Yellow Sea. We are unable to participate fully in the most important institutions for engaging on oceans law today, such as the annual meeting of States Parties to the Convention and the Commission on the Limits of the Continental Shelf. By not taking our seat on the Council of the ISA we lose our veto over any distributions. By not adhering we also lose our ability to block potentially damaging amendments to the Convention.
Our economy is hurt when delimitation of our extended continental shelf is delayed and when legal uncertainties from non-membership prevent our oil and gas industry from exploiting the rich continental margin, especially in the Arctic. Development of resources in the Chukchi and Beaufort Seas off Alaska's coast would create approximately 54,700 jobs per year nationwide with a $145 billion payroll and would generate $193 billion in federal, state and local revenue according to a study done by the University of Alaska's Institute of Social and Economic Research.
The delay in ratifying this treaty has already cost the loss of one of our four seabed mine sites, the richest in the world, and if we do not soon adhere the United States risks losing the remaining three, with billions in the strategic minerals manganese, copper, cobalt and nickel at stake. A single seabed mining operation would spur the economy with total capital purchases of close to one and a half billion dollars and would stimulate robust job creation. Further, for our nation to lose this new industry would cost millions in consumer losses and foregone tax revenues and billions in our balance of trade as the United States was forced to import rather than produce these strategic minerals.
Undersea cables carry more than 95% of international Internet and telephonic transmissions. These crucial cables also transmit financial data and transactions worth trillions every day. The Convention establishes the legal underpinning for protecting and managing these cables. At a National Press Club event a spokesman for AT&T warned that not being a party places America's crucial communication links at risk
By the continual erosion of our nation's oceans leadership, badly needed American jobs are lost. The consequences are also serious as to how we are viewed by other nations. When the United States achieves everything it requires in a Convention, including a tough revision meeting all of its objectives, not to adhere makes it more difficult for America to negotiate other agreements. Our friends are simply astounded that the nation which achieved more than any other through the Convention has still not joined. They conclude from the flimsy arguments they hear against the Convention that America has simply gone isolationist. As such, our non-adherence continues to harm United States credibility and leadership in oceans matters and, more broadly, in our foreign policy. It is past time for Senate Advice and Consent.
John Norton Moore, director of the Center for Oceans Law & Policy at the University of Virginia, was U.S. Ambassador for the Law of the Sea Convention under Presidents Richard Nixon and Gerald Ford and was a Reagan appointee to the National Advisory Commission on Oceans and Atmosphere.
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