This Blog outlines the major arguments both for and against the United Nations Law of the Sea (LOS) Treaty. It contains viewpoints of the key advocates and organizations on both sides of the debate. The report then goes on to review critical questions such as the Treaty’s impact on America’s national security, economic growth, sovereignty, energy security and the role of the United Nations.
The Treaty has broad support in both the Republican and Democratic parties. In the 2008 campaign, Barack Obama and John McCain both endorsed LOST. Presidents George H.W. Bush, George W. Bush, Bill Clinton and Barack Obama are among its vigorous advocates, and it passed the Senate Foreign Relations Committee in October 2007 by a vote of 17 to 4. In the preceding Congress LOST had passed the Committee by a unanimous vote.
The Treaty also has the solid backing of the U.S. Navy, the Navy League, the Coast Guard, Defense Department, Commerce Department, and the U.S. Commission on Ocean Policy. The Chairman is Admiral James Watkins USN (Ret), the former Secretary of Energy and Chief of Naval Operations. Watkins has responded to Treaty critics by saying: “The claim is that we would lose our sovereignty. Bananas! That’s nonsense!”
It is difficult to think of any individual of stature in the national security community who opposes the LOS Treaty. This is understandable because freedom of navigation is essential for successful military operations, and this has been demonstrated by 200 years of American history. Freedom of the seas was a rallying cry in both the War of 1812 (which was also known as the second war of American independence), and in World War I. This cause was incorporated into both Woodrow’s Wilson’s 14 Points and World War II’s Atlantic Charter.
The LOS Treaty is essential because it provides global reach for American power projection. This point has been continually emphasized by the Joint Chiefs of Staff. The Treaty is the most effective platform initiated to date for achieving a globally recognized body of rules for using the sea. Given the post- 9/11 security environment and the war on terror, it is imperative that the U.S. military continue to expand its global reach and combat mobility. The LOS Treaty is the most effective and comprehensive tool to achieve that goal.
National security experts are supporting the LOS Treaty because America is the world’s paramount maritime power, and as such it receives significant benefits under the pact. America far exceeds every other nation as both an importer and exporter in world trade. The Treaty secures U.S. passage rights for what is presently $800 billion in annual trade. With the largest coast line, the LOS will benefit the United States by creating the largest exclusive economic zone in the world.
Case Studies: Libya, Iran, Indonesia
There are numerous national security examples of why an LOS Treaty is essential. Under the LOS terms, Libya would no longer be able to close the Gulf of Sidra, an important strategic passageway.
Colonel Gaddafi first made this claim in 1973, saying foreign military vessels entering the Gulf would be crossing “the line of death.” In 1981, two Libyan fighter jets were shot down by the U.S. Navy while conducting Freedom of Navigation exercises in the Gulf of Sidra. In March 1986, Libyan missile installations fired on U.S. aircraft flying over the Gulf. Libya, like all coastal nations, will be granted significant economic rights in the Gulf, but they will not able to exclude military or commercial vessels.
The Islamic Republic of Iran would no longer be able to claim a right to close the vital Straits of Hormuz. Over 13 million barrels of oil pass through this 34 mile long Strait every day, and it has been aptly labeled a jugular vein for the world economy. During the “oil shocks” and embargoes of the 1970’s, America was importing 35% of its energy needs. This has now been increased to 58%. The late Ayatollah Khomeini frequently threatened to close the Strait in response to America’s increased aid to Israel.
The government of Indonesia has in the past threatened to close the Strait of Malacca to U.S. Navy convoys. The Strait of Malacca is clearly within Indonesia’s territorial waters, and without LOST America lacks the globally legislative teeth to counter such a move. In his book, Beyond the Law of the Sea: New Directions for U.S. Oceans Policy, Captain George Galdorisi USN addressed the problem America would have confronted if Indonesia’s claim had been successful:
If prevented from transiting through the Indonesian archipelago and the Strait of Malacca, a U.S. Navy carrier battle group enroute from Yokosuka, Japan, to Bahrain would have to steam around Australia. Assuming a steady fifteen-knot pace, a six-ship, conventionally powered battle group would require an extra fifteen days and over ninety-four thousand gallons of fuel to transit the additional 5,800 nautical miles. The added fuel cost alone would amount to over $3 million.
Over 50,000 ships transit the Strait of Malacca between the Pacific and Indian Oceans every year, and this right of passage would be protected by the LOS Treaty.
Despite the many benefits, there is still an excellent chance the LOS Treaty will not be ratified by the United States. The original Treaty was completed in 1982, yet from an American viewpoint was a flawed document. Despite its deficiencies, The United States complied with all of the Treaty’s provisions except for Part XI on technology transfer and sea bed mining rights, which was highly controversial.
At the instigation of President George H.W. Bush, the LOS Treaty was fully renegotiated to meet all of America’s reservations. After four years of negotiations, the final version of LOS was drafted in 1994. The LOS Treaty does not levy taxes. The technology transfer provision in Annex IV was eliminated along with the excessive seabed mining fees. At the same time, a U.S. veto was assured should America ratify the Treaty.
LOS went into effect without U.S. ratification at the end of 1994. The Treaty has been pending before the U.S. Senate for the past decade, and many of the arguments being raised by its critics ignore the renegotiation of the Treaty.
The major argument posited by the LOS foes involves the issue of sovereignty. This is a serious concern, and ASCF asked a variety of flag officers to examine the claim. Each of them assessed the Treaty as having no encroachment on U.S. sovereignty. In fact, the LOS Treaty significantly expands American territory. The Treaty provides for the largest expansion of American sovereignty since the Louisiana Purchase and the acquisition of Alaska. The argument that LOS in any way erodes U.S. sovereignty is without merit.
The Treaty also allows nations to expand their jurisdiction over marine resources from the current 200 nautical mile limit to up to 350 nautical miles. This is equal to more than 400 standard miles. A nation can make this claim if it can prove that its continental shelf extends that far, an allowance that could greatly benefit the United States.
The United States has one of the world’s largest continental shelves. This means America could increase its “exclusive economic zone” in the Gulf of Mexico, the Atlantic Ocean and off the coast of Alaska. The expansion would represent an increase of about 15 percent of U.S.-owned oceanic land. In Alaska alone, the United States will be able to lay claim to an additional 450,000 square kilometers of outer continental shelf. This is a territory equal to the size of California.
An in-depth study of the potential benefits associated with this undersea territory was commissioned by the United Nations in 2001. They consulted a wide range of scientific experts and projections. The study emphasized that the United States alone would reap up to $1.3 trillion in additional oil, minerals and sedentary fish species as a result of the increase in territory allowed by the Law of the Sea Treaty.
Dr. John Norton Moore, the Director of the Center for National Security Law at the University of Virginia, has been at the forefront of the LOS debate for many years. He served as Chairman of the U.S. Institute of Peace during the Reagan Administration. For three years he administered the LOS process for the United States and said:
There is not a single sovereign right of the United States that is conceded in this treaty. The United States was in large part responsible for originating and developing the LOS agreement. The Treaty protects American interests; it does not in any way diminish them.
A related argument is that the pact “gives control over seven-tenths of the earth’s surface to the United Nations.” Neither the LOS Treaty nor its International Seabed Authority (ISA) is part of the United Nations, nor have they ever been connected to the U.N. The U.N. has no role in the implementation of the LOS Treaty, and the IAS is a small organization which has a budget of only $5 million/year. Much of this confusion has resulted because of the Treaty’s formal name. The establishing document is called the “United Nations Convention on the Law of the Sea.” The words “United Nations” appear in the title only because that is where the negotiations physically took place.
This is the same format which was used by the Geneva Conventions on the Treatment of Prisoners of War. The 1958 and 1960 Conventions on the Law of the Sea also took place in Geneva. They were called Geneva Conventions. The Dayton Accord of 1995 ended the fighting in the former Yugoslavia, and the Paris Peace Accords of 1973 resulted in a temporary ceasefire in South Vietnam. Aside from the location of the negotiations, Dayton and Paris had no connection to the events in Yugoslavia and Vietnam, nor the implementation of these agreements.