Academic journal article Texas Review of Law & Politics

Unclos Key to Increasing Navigational Freedom

Academic journal article Texas Review of Law & Politics

Unclos Key to Increasing Navigational Freedom

Article excerpt

As an admirer of James Madison, I am proud to be a conservative. And as a conservative, I am proud to support the President's call for the Senate to act favorably on the Law of the Sea Convention.1 While I differ with my colleagues, Baker Spring and Frank Gaffney, on some other issues-particularly their excellent work in relation to missile defense-I am an admirer of their work.

My conservative credentials were earned the hard way: as the principal academic supporting the lawfulness of United States' assistance to South Vietnam during the Vietnam War.2 My conservative credentials were also earned the hard way in the Law of the Sea negotiations. I took over as the head of the negotiations at the Seabeds Committee following a serious split in the United States delegation over something called the "list of issues."

At stake in that debate was whether the United States was going to insist on all of our navigational rights, transit passage through, over, and under straits used for international navigation, or whether we would accept the advice of some that this was simply a nonnegotiable issue, and we should damp it down. Well, I am happy to say that despite a difficult interagency battle, the conservatives in the United States government under President Richard Nixon won that battle. President Nixon set up a National Security Council Interagency Task Force on the Law of the Sea. I headed an eighteen-agency process in which the Department of Defense and the Joint Chiefs and others were very important players.3

I am also pleased to suggest that, contrary to the nay-sayers who said that we would never win on these issues, a tough United States' position prevailed. Indeed, the United States prevailed on all of the security provisions of the Convention-security provisions which were very much at stake in the negotiations. We fully preserved navigational freedom, including transit passage through, over, and under international straits.4 We extended United States' resource jurisdiction into the oceans in an area larger than the entire land mass of the United States, and we insisted on assured access to seabed minerals for United States' firms. ' In short, the Law of the Sea Convention and its negotiation remains one of the seminal negotiating successes of the United States throughout its history.

Moreover, the United States was not a bit player in all of this, nor was it an isolated participant. The United States was overwhelmingly the leader in this negotiation. This is in sharp contrast to what you may have seen in the negotiations for the Rome Treaty" or for the Ottawa Treaty.7 This is one in which the United States led, and the United States won. There should be no mistake about that.

Now, shortly after I left the government, a new U.S. delegation brought in a Part XI-pertaining to deep-seabed mining-that I believed went beyond the instructions that I had worked out through the interagency process. And I sent, at that time, a letter to President Ronald Reagan urging that he not go forward with Part XI until it was renegotiated successfully.8 Again, there were many voices that said you cannot renegotiate Part XI. I disagreed. And I am delighted to say that once again my recommendations turned out to be correct in 1994, as we not only ultimately prevailed in a renegotiation of Part XI that met every single one of the conditions set by President Reagan for the United States to adhere to the Convention, but we also achieved some things beyond what the President had wanted at the time.9

Now why should conservatives support this president in urging Senate advice and consent to the Convention? Well, it would take much too long to go through all the reasons, but I shall provide a few.

This is a critical national security concern to the United States. Admiral Baumgartner is absolutely correct on all of the points that he has indicated. This treaty was a great victory for the United States Navy and for navigational freedom and our security interests on the world's oceans. …

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