What are the National Security Benefits of the LOS Treaty?
Many of the national security arguments in favor of the LOS Treaty have already been outlined in Admiral Spiro’s introduction, and in the letters and statements from the Joint Chiefs of Staff and other military leaders.
As the Joint Chiefs testified, the LOS Treaty is necessary to ensure freedom of the seas and U.S. rights to maintain carrier battle groups in every ocean. Under LOS, U.S. submarines and other vessels have the right to lay undersea cables and pipelines in international waters.
Since the end of World War II, approximately 75% of all military responses have involved naval forces, and almost half of them have been solely naval operations. The vast majority of these operations did not involve a confrontation with opposing naval forces. They were instead opposing a threat on land. This emphasizes the importance of U.S. Naval operations in coastal waters.
The Bush Administration believes ratification will be an important boost to the war on terrorism. On the diplomatic front, since 1979 the Department of State had filed well over a hundred protests against maritime claims inconsistent with international law. Over the same period, U.S. warships and aircraft had exercised rights and freedoms in all oceans, against objectionable claims by more than fifty countries, at the rate of some thirty or forty per year.
Some nations have asked for restrictions on the movement of naval or commercial vessels near their coastline. Others want the right to exclude nuclear-powered vessels from their territorial waters. (Under the Treaty, a ship’s propulsion system cannot be used as an argument to restrict its movements.)
As of 2003, the United States was contending with 195 illegal navigation claims. The claims were in the following categories:
Historic Bay (42)
Territorial Sea Breadth (13)
Contiguous Zones (19)
Exclusive Economic Zones (32)
Innocent Passage in a Territorial Sea (41)
International Straits (16)
Overflight Restrictions (5)
If the United States ratified the LOS Treaty it would be in a strong position to prevent harmful amendments such as the above claims.
Case Studies: USSR, Ecuador, Cuba, Peru, China, Brazil and North Korea
Once again, the United States has had to contend with numerous naval confrontations and boundary disputes over the past few decades. From 1974 to 1990, there were thirty-seven significant demarcation disputes, fifteen major fishing disagreements, and thirty-one naval conflicts. Numerous examples of nations making illegal maritime claims have been compiled by Professor John Norton Moore. His research revealed the following:
● In 1982 and 1987, the USSR interfered with the operations of U.S. naval frigates off Peter the Great Bay near Vladivostok. In February 1984, the destroyer USS David R. Ray was conducting Freedom of Navigation operations in the Black Sea when Soviet aircraft fired cannon rounds into the ship’s wake and a helicopter swooped within thirty feet of the ship’s deck.
In January 1988, two Soviet border guard vessels “bumped” the USS Caron and the cruiser USS Yorktown, which were demonstrating their right of innocent passage through the territorial sea off the Crimean Peninsula.
● In 1986, Ecuador interfered with a U.S. Air Force flight over the high seas 175 miles from the Ecuadorian coast.
● In 1986, two Cuban MiG-21 fighters intercepted a U.S. Coast Guard HU-25A Guardian flying outside Cuba’s twelve-nautical-mile territorial sea, claiming it had entered the “Cuban flight information region” without permission.
● In April 1992, a Peruvian fighter aircraft intercepted and shot at a U.S. Air Force C-130 aircraft, killing one crewmember and wounding two others. Peru attempted to justify its action by asserting that the U.S. aircraft had been within its two-hundred-nautical-mile territorial sea and air space. Peru was claiming a 650 mile “flight information area.”
● In both September and December of 2002, the Peoples Republic of China (PRC) made illegal claims regarding U.S. military survey activities. The September claim involved the USS Bowditch which was operating 60 miles off the Chinese coast. In December of that year, the PRC made an illegal claim that it had to approve all survey activities within its 200 mile economic zone. In both instances the United States responded by notifying the PRC that it would exercise its maritime rights in accordance with international law.
● Both Brazil and North Korea are claiming 50 mile “security zones” banning the presence of any warship. This claim is not recognized by the United States or the LOS Treaty.
Would the LOS Treaty Impair U.S. Intelligence Gathering Activities?
The Law of the Sea Treaty is far better for the intelligence community than the 1958 Geneva Convention on the Territorial Sea, to which the United States is a party. Under the 1958 convention, a vessel engaged in certain intelligence activities does not have the benefit of claiming innocent passage.
Some critics contend that the LOS Treaty will prevent the at sea interdictions which are outlined by the Proliferation Security Initiative. The Bush Administration, the CIA and the U.S. military have consistently emphasized that the Convention will have no effect on intelligence activities.
The Proliferation Security Initiative (PSI) is a multilateral coalition that was formed by the Untied States in 2003 to combat WMD proliferation by sharing intelligence information. The other original members are Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, Singapore, Norway, Canada and Britain. The PSI has now grown to some 60 countries that track suspect cargo, and they hold joint military exercises to interdict dangerous shipments. The PSI is credited with breaking the nuclear weapons technology ring that was orchestrated by Pakistan’s Abdul Qadeer Khan. A shipment of centrifuges from Khan to Libya was interdicted at sea.
The primary conservative critic of the LOS Treaty is Frank Gaffney of the Center for Security Policy. He claims that submarines in international waters will have to operate on the surface because of LOS, but no one in the national security community agrees with him.
Contrary to the conservative coalition’s assertion that LOS would frustrate America’s ability to intercept WMD shipments at sea, the Chairman of the Joint Chiefs of Staff and the Chief of Naval Operations say unequivocally that U.S. ratification of Law of the Sea would help the PSI. Admiral Vern Clark, the Chief of Naval Operations, has stated that “the Convention supports U.S. efforts in the war on terrorism while leaving unaffected intelligence collection activities.”
Would the LOS Treaty Hand Over American Sovereignty to the United Nations?
The LOS Treaty allows no encroachment of U.S. sovereignty, but it does provide for the largest expansion of American sovereignty since the Louisiana Purchase and the acquisition of Alaska. 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.
Opponents repeatedly claim America sovereignty will be diminished because 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) are part of the United Nations, nor have they ever been connected to the U.N. The ISA is an autonomous international organization, with its own Secretary General and Assembly.
Some observers are confused 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 Convention 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.
Nevertheless, the critics keep confusing the LOS Treaty and its International Seabed Authority with the United Nations. The Treaty allows no decision-making role for the United Nations, so America can not be surrendering any sovereignty to the world body.
American gains additional rights and territory as well as national security and economic benefits. The Treaty 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.
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.
The Bush Administration is clearly concerned about the need to maintain U.S. sovereignty and American rights. During the 2004 campaign, President Bush emphasized this when he said: “The United States will never seek a permission slip to defend the security of our country.” The White House has used sovereignty arguments in the past to oppose U.S. participation in the International Criminal Court (ICC), which would have been able to prosecute U.S. soldiers for war crimes.
Sovereignty arguments were also used by the Administration in opposing the Kyoto Protocol. Kyoto has been ratified by 141 nations, but it has the potential to harm the U.S. economy with a disproportionate share of cleanup costs to a global EPA. The Administration has also criticized many other multi-lateral institutions, and its Ambassador-designate to the United Nations, John Bolton, is a leading ICC and Kyoto critic.
The LOS Treaty is a completely different situation, and it has the enthusiastic support of both the Bush Administration and Ambassador Bolton. Nevertheless, the conservative opposition to the LOS Treaty always includes sovereignty arguments. Similar to the Bush Administration, these groups often cited sovereignty arguments in opposing the ICC, Kyoto and U.S. participation in United Nations missions.
The right wing groups frequently buttressed their arguments by referring to the work of Dr. John Norton Moore, the Director of the Center for National Security Law at the University of Virginia. He was also appointed by President Reagan to serve as Chairman of the U.S. Institute of Peace.
Despite his past affiliation with conservative organizations, Moore believes their opposition to the LOS Treaty on sovereign arguments is completely without merit. He believes the Treaty significantly enhances U.S. sovereignty, and does not in any way diminish it. According to Moore, “There is not a single sovereign right of the United States that is conceded in this treaty. . . .This is one of the greatest increases in sovereign rights of the United States since the Louisiana Purchase or the acquisition of Alaska.”
The organizations which have raised concerns about American sovereignty often quote Senator James Inhofe (R-OK), the Chairman of the Environment and Public Works Committee. During hearings last year, Inhofe said he was concerned the LOS Treaty would require the United States to bring its environmental laws in line with the 145 other nations which have ratified the pact. Inhofe specifically asked if America would now have to pass legislation to regulate carbon dioxide to meet international standards.
The Department of State has said Senator Inhofe’s concerns are without merit. The United States would not have to change any of its laws. Assistant Secretary of State John Turner told Inhofe’s Committee, “We feel it (the LOS Treaty) embraces our sovereignty.” Turner is the head of the State Department’s Bureau of Oceans and International Environmental and Scientific Affairs. The LOS Treaty only requires that participants have pollution-reduction measures in place, and this is certainly not a problem for the United States.
Will American Citizens and Corporations be Paying Taxes to the United Nations?
No American citizen or corporation will pay taxes to the United Nations. In January of 2005 this was emphasized in the Senate testimony of Secretary of State Condoleezza Rice. She said the LOS Treaty “does not provide for or authorize taxation of individuals or corporations.” She went on to say “the United Nations has no decision-making role under the convention in regulating uses of the oceans by any state party to the convention.”
In making the taxation claim, the Treaty opponents often refer to the International Seabed Authority (ISA), which has no connection to the U.N. The ISA is a small organization in Kingston, Jamaica which was established in 1994. Its entire budget is less than $5 million and its mandate involves deep sea mining activities which are more than 200 miles from shore. If any mining took place, they would want to make sure there was no significant damage to the environment.
The entire issue is really a moot point because no such mining is taking place today. Furthermore, it is doubtful any deep sea mining will occur in the foreseeable future because the current technology is not cost effective. Both nickel and copper are examples of minerals which can be mined in the deep sea. The price for both minerals has been depressed for quite some time, and it is far more cost effective to mine them on land than at sea.
If new technology is developed to make this type of mining feasible, the LOS Treaty does require the payment of royalties to the ISA from revenues generated by deep seabed mining activities. The royalties would be used to cover the ISA’s expenses, which are modest. Once again, they would not go to the United Nations. If a royalty is ever imposed it must be “fair to contractors and not in excess of what is charged for land based mining.”
The claim of an enormous wealthy transfer to the International Seabed Authority is particularly laughable. The organization is not receiving any funds from mining royalties, and in the summer of 2002 they had no money to pay for air conditioning. The Jamaican government was threatening to turn off their air conditioning because of non-payment of past utility bills. The reason for the ISA financial problem is because half of the member nations are behind in their dues.
The critics also ignore the fact that it was the Reagan Administration that wanted the royalty payments. Reagan was trying to reduce the U.S. contribution to the U.N. at that time. America at one time was paying 33% of the U.N. budget, although this has now been reduced to 22%.
On December 3, 1982, the United Nations General Assembly passed a resolution offering to finance the “Preparatory Commission under the Law of the Sea Treaty” from the regular U.N. budget. This would have established a direct relationship between the UN and the ISA. America did not want this. President Reagan issued the following statement on December 30, 1982:
“My administration has fought hard to uphold fiscal responsibility in the United Nations system and, in this case, consistently opposed this financing scheme. It is not a proper expense of the United Nations within the meaning of its own Charter, as the Law of the Sea Preparatory Commission is legally independent of and distinct from the U.N. It is not a U.N. subsidiary organ and not answerable to that body. Membership in the U.N. does not obligate a member to finance or otherwise support this Law of the Sea organization.”
The goal of the royalty fee was to make the ISA a self financing organization. Paul Kelly, executive vice president of Rowan Companies, a Houston-based drilling contractor, was part of an American Petroleum Institute panel which appeared before the Senate. He said “the royalty will be a very small price to pay for access to the additional acreage.” The royalty “would not result in any additional cost to the industry. . .The potential benefits far outweigh the modest revenue sharing provision required by the Treaty. This is a minor expense of doing business.”
Article 82 of the Treaty provides for payments from exploitation of the continental shelf beyond 200 nautical miles. Such payments begin only after the fifth year of production, start at 1% in the sixth year and increase by 1% per year until the twelfth year, after which they remain at 7%. No payments are made during either the period of exploration or the first five years of production.
If the United States joined the Convention, it would be able to veto the ISA’s adoption of any rules or regulations relating to the deep seabed mining regime. This means if any cost was deemed to be excessive, the Untied States could veto the rule.
The LOS Treaty says that the oceans beyond the 200 mile coastal limit are the “common heritage of mankind.” Is this an attempt to give control of the oceans to an unelected international organization?
The origins of this debate goes back to December of 1969 when the UN General Assembly adopted a resolution banning the exploration of the ocean floor beyond each nation’s territorial limits, pending the completion of an international seabed treaty. The administration of President Richard Nixon was not satisfied with this formula. In May of 1970 they began the process which eventually led to the third Convention on the Law of the Sea in 1973.
It was during these early negotiations that the Nixon Administration began using the term “common heritage of mankind” to refer to the area beyond the 200 mile limit. In explaining this “common heritage of mankind” concept, President Nixon quoted Thomas Jefferson as saying “The ocean, like the air, is the common birthright of mankind.” The Nixon Administration also proposed that all undersea mining activity beyond 200 miles should pay royalties to a supervisory international body.
Many of the individuals that have used “the common heritage of mankind” description as a reason to oppose the Treaty are also against other international organizations which focus on specific issues. They are opposed to the International Telecommunications Union, the World Bank, the IMF, the International Maritime Organization as well as the International Seabed Authority. These organizations are not threats to the sovereignty of any nation, but they have been established with the full support of the United States to specific concerns.
The critics want the United States to set its own rules. They want companies to mine where they want, when they want and how they want with little or no international oversight. According to Oceanlaw:
What they fail to address is that companies have an absolutely essential need for both a) international recognition of the exclusive right to exploit a specific area of the seabed without intrusion or interference with their operations and b) international recognition of title to the minerals that they recover. Neither of these needs can be met unilaterally – they must be obtained through international agreement.
The attempt during the Reagan Administration to establish a “reciprocating states” regime (a form of ‘coalition of the willing’ that was restricted to the then-current roster of seabed mining nations) failed and, with the adoption of the 1994 amendments and the coming into force of the Convention, was supplanted by the International Seabed Authority.
The mandate of the International Seabed Authority primarily involves environmental protection and conservation. This work is vital according to President Bush’s National Commission on the Oceans. This report says the oceans are dying. Unless we take steps immediately, whole species may vanish and fishing industries in the United States and around the world are going to face collapse at a terrible human cost.
The Law of the Sea Treaty establishes basic obligations for all nations to protect and to preserve the marine environment and to conserve marine species. The Treaty requires enforcement of international rules designed to limit pollution from ships and seabed development. The Bush Administration believes the ISA is needed because of pollution and waste dumping, to maintain guidelines against over-fishing, and to protect whales, dolphins and other deep sea creatures.
Dr. Robert Ballard of National Geographic has been able to use new technology to discover shipwrecks such as the Titanic, the Bismarck, the Yorktown, as well as Roman, Venetian, Carthaginian, and Greek ships. Dr. Ballard says the common heritage of mankind concept is important because “the deep sea is a museum and contains more history than all of the museums combined in the world and yet there is no law covering the vast majority of artifacts, and that puts all of them at risk. We need international cooperation to preserve cultural history throughout time.”
Will the International Seabed Authority (ISA) Have Control Over Ocean Policy Around the World?
The International Seabed Authority does not have control over ocean policy. The ISA’s sole function is to administer mineral development in those parts of the deep seabed beyond national jurisdiction.
Once again, the ISA is an organization in Jamaica with 35 employees and a modest budget. The LOS Treaty does not levy taxes, nor does it require any technology transfers. The technology transfer provision in Annex IV was eliminated in 1994, at the same time a U.S. veto was assured.
If the U.S. ratifies LOS, its annual contribution to the International Seabed Authority would be approximately $1 million. This would represent 22% of the ISA budget. All of the expenses America would encounter from LOS are less than what the U.S. pays to the Great Lakes Fish Commission.
The anti-LOS letter signed by 27 conservative organizations claimed: “The supranational International Seabed Authority” might allow “The agenda of actual or potential adversaries interested in making it more difficult for this country to use the seas to prosper economically and to protect our national interests.”
These critics also claim America will be outvoted in the ISA, and the ISA will adopt numerous rules which will be disadvantageous from a U.S. viewpoint. Both of these claims are false. The United States has a guaranteed seat and a guaranteed veto on the ISA. It is important to note the Treaty rules clearly state that the ISA requires unanimity to act.
The ISA monitors the seabed and it will alert the United States if there is any encroachment on its sovereignty. The ISA would help American companies secure property rights to mining sites. A company would be unlikely to invest the substantial capital necessary to conduct such mining without an ISA guarantee.
These companies would not want to risk having their claims disputed or having competitors ride free off their exploration investments. Given that no nation has sovereignty beyond its national jurisdiction, the only way to establish property rights in the open ocean is through an international regime.
Why is the LOS Treaty Important for America’s Energy Security?
For several years, Americans have placed energy security concerns on the back burner. In April of 2005 the price of oil reached an all time record of $57/barrel and some commentators are predicting future price hike to the $80/barrel range. The rapid industrialization of nations such as China and India means the demand for oil will remain strong, and prices are unlikely to come back to the $20/barrel level which was customary in the past few years. The two oil shocks of the 1970’s had a devastating impact on the U.S. economy, and oil supplies from the Middle East and Venezuela are not stable.
The LOS Treaty will clear the way for U.S. oil companies to tap deep sea oil and gas reserves offshore. The importance of this is already known because 28% of America’s natural gas and nearly as much oil already flow from the Outer Continental Shelf. This will increase as new technologies are developed.
As the section on sovereignty demonstrates, the Treaty provides for a huge increase in American territory. This expansion of American jurisdiction is especially important to the oil and gas industry.
For the American oil industry, the easily accessible reserves have long since disappeared. This is also becoming a more common problem throughout the world. This means companies are forced to move farther offshore, and they are drilling in ever greater water depths. Oil is already being extracted at depths below 7,000 feet in the Gulf of Mexico. This would not have been possible with the technology which was available 20 years ago.
In 2003, about 62 percent of the Gulf’s oil production came from wells drilled in depths greater than 1,000 feet, according to the Minerals Management Service, up from 12 percent in 1993. All of the major American oil companies are enthusiastic backers of the LOS Treaty. The American Petroleum Institute has sponsored full page advertisements saying the LOS Treaty is “important to our efforts to develop domestic offshore oil and natural gas resources.”
Representatives of the oil industry told the Foreign Relations Committee that they are reluctant to engage in any further exploration on the U.S. continental shelf until the Senate ratifies the Law of the Sea Treaty. Without ratifying the Treaty, the oil industry says they are being expected to venture into un-chartered legal territory.
Ratification of the Treaty will secure American property rights over areas far at sea. Knowing who owns the land and who will collect royalties are prerequisites for investors to fund costly offshore projects, they say. An additional benefit for America’s energy security is that the Treaty secures navigation rights for oil and liquefied natural gas carriers.
What are the Economic Benefits of the LOS Treaty?
The LOS Treaty is important to America’s economy because it firmly secures passage rights for over $800 billion worth of U.S. imports and exports. The Treaty ensures American control of the vast richness under the sea. This extends up to 200 miles from our shores, and in cases involving our continental shelf, the extension can be as much as 400 standard miles.
The Treaty will resolve many past disputes. For example, if America ratifies the Treaty, Russian fishing trawlers could no longer plunder millions of tons of salmon off the coast of Alaska. (Several of these trawlers were guilty of espionage during the Cold War.)
The LOS critics claim the Treaty will impede U.S. economic interests at sea, but every major American ocean industry supports it. The opponents are also claiming the Treaty contains production limits on seabed minerals, but this was eliminated in the 1994 renegotiation of the treaty. The Treaty affirms unchallenged American rights to its ocean resources.
As many lawmakers and oil and natural gas industry executives have emphasized, America can not rely on the legal protections of the Treaty if it is not ratified by the U.S. Senate. In addition to the oil industry, the LOS Treaty has vigorous support from the natural gas, shipping, fishing, boat manufacturing, exporting, and telecommunications industries.
With little exploration done beyond the 200-mile limit, the benefit of oil, gas and mineral deposits are not known. However, an in-depth study of this topic was commissioned by the United Nations in 2001. They used a wide range of scientific experts and projections. They concluded 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 convention.
What are the Economic Consequences if America Does Not Ratify the LOS Treaty?
The economic consequences of America’s non-involvement are huge. In addition to loss of potential economic revenues and natural resources, the United States will lose the ability to significantly influence or counteract the actions of global competitors in this crucial sphere of military and economic activity.
For example, Russia is presently claiming offshore deposits of an estimated 88 billion tons of oil beneath the Arctic Ocean that in today’s rates would be valued at $9 trillion. The singular justification of the Russian claim is a 1926 declaration by the Soviet Union. Russia is using this old document to claim control of 5.8 million square km of seabed territory that extends from the Arctic coast to the North Pole.
Russia’s position is that the Arctic seabed is an extension of the Eurasian continental landmass and thus is part of Russian territory. Under the LOS Treaty, Russia would have formal rights to a zone extending 200 miles out from the Arctic coast, but not more. This zone would provide Russia with 1.5 billion square km of offshore acreage with potentially between 15 and 20 billion tons of oil. The market value for this reserve would be worth between $1.5 and $2 trillion meaning Russia would still realize significant revenues.
It is clearly in the interest of the United States to block this claim and to ensure that Russia and all countries adhere to LOS and appropriate only their fair share of territory. This will be increasingly difficult to accomplish if America does not ratify the LOS Treaty.