The Unvarnished Truth the Debate on the Law of the Sea Convention
Schachte, William L., Jr., Naval War College Review
The Senate's consideration in 2007 of U.S. accession to the 1982 United Nations Convention on the Law of the Sea has elicited, as it did when the Senate last considered the Convention in 2004, an amazing array of opposition arguments. As happened four years ago, critics predict near-apocalyptic doom for the United States if it accedes to the Law of the Sea Convention. In particular, they argue that the Law of the Sea (LOS) Convention will cripple the U.S. Navy's ability to perform maritime missions necessary for national security, including collecting intelligence, conducting submerged transits with submarines, and preventing actions by terrorists. I feel compelled to speak out, as I did then, against these misguided and incorrect beliefs and to set the record straight.
The Convention's opponents were successful in preventing a floor vote in 2004, during the second session of the 108th Congress. It was almost unprecedented that a treaty unanimously reported out of committee had failed to go to the full Senate for a vote. As the 110th Senate considers the Convention, a number of items have appeared in the press and online asserting that the Convention is contrary to American interests. Nevertheless, on 31 October 2007 the Senate Foreign Relations Committee voted seventeen to four in favor of ratifying the treaty. Its report has now been sent to the full Senate for consideration. This time, it is expected to be voted on.
Thestrongest supporters of the Convention are those directly affected by it. The arguments made by Convention opponents and the administration's rebuttals during the 108th Senate's consideration of the Convention appear in the written statements of Legal Advisor William H. Taft before the Senate Armed Services Committee on 8 April 2004; before the House Committee on International Relations on 12 May 2004; and before the Senate Select Committee on Intelligence on 8 June 2004. They appear also in testimony by Assistant secretary of State John Turner before the Senate Committee of Foreign Relations on 21 October 2003 and before the Senate Committee on Environment and Public Works on 23 March 2004. In 2007, testimony in support of the Convention was provided to the Senate Foreign Relations Committee by Deputy Secretary of State John Negroponte, Deputy Secretary of Defense Gordon England, and Admiral Patrick Walsh, the Vice Chief of Naval Operations. The chairman of the Joint Chiefs of Staff, Admiral Michael Mullen, during his confirmation hearings before the Senate Committee on Armed Services on 31 July 2007, stated unequivocally that the Convention advances U.S. interests.9
The following is a sampling of the myths regarding the Convention that opponents continue to trumpet.
President Reagan thought the treaty was irremediably defective. This is absolutely false. President Reagan expressed concerns only about Part XI's deep seabed mining regime.11 In fact, he believed that Part XI could be rectified and specifically identified the elements in need of revision. The regime has been in fact been fixed, and in a legally binding manner-the 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea-that addresses each of the American objections to the earlier regime.13 The rest of the treaty was considered so favorable to U.S. interests that in his 1983 Ocean Policy Statement President Reagan ordered the government to abide by and exercise the rights accorded by the non-deep-seabed provisions of the Convention.14
U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).15 But our navigational freedoms are indeed threatened. There are currently more than a hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms. The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U. …