Navy, DOD and State Agree US Should Sign Onto UN Law of the Sea Treaty

By Lindsay Aylesworth

Short synopsis of Senate Foreign Relations Committee meeting regarding ascension to the Law of the Sea Treaty with testimony from US Department of State, US Navy, and US Department of Defense.

There are not many times when the Deputy Secretary of the Department of Defense, Deputy Secretary of the Department of State, US Navy Vice Chief of Naval Operations, all military department sectors, all combatant commanders, and the Coast Guard can all agree on one policy objective. However, testimony received on Thursday, September 27, 2007 at the Foreign Relations Committee Senate Hearing was one of those times. The topic warranting mass consensus from the Department of Defense, the Navy, Department of State, was US accession to the 1982 Law of the Sea Convention.

The Law of the Sea Convention is the international legal instrument for public order in the world’s oceans. It demarcates coastal states territorial seas and exclusive economic zones, as well as regulates high seas and deep seabed mining. It regulates navigation, trade, military activities, communication, sustainable use of marine resources and many more issues regarding the world’s oceans.

The United States, as the world’s strongest maritime power and leader in maritime trade and commerce, is one of the last industrialized countries to sign the treaty, even though it abides by about 90% of its rules and regulations. The original delay on signing and ratifying the treaty in the 1980’s was due to provisions in Part XI on Deep Seabed Mining. However, the US worked with several other nations to create an amendment, in 1994, to the treaty rectifying US contentions with the Deep Seabed Mining provision.  Since 1994, concerns about what accession would mean for US sovereignty and national security have further delayed its passage through Congress.

With the current rush to claim a stake in the Arctic, as well as support from President Bush, there has been renewed pressure on Congress to finally ratify the UN Law of the Sea Convention. The testimonies of John D. Negroponte (Dept of State), Gordon England (Dept of Defense) and Admiral Patrick M Walsh (Navy), conclusively supported passage of the treaty and attempted to dispel some of the myths and counterarguments that are claimed by the opposition.

Senator Lisa Murkowski, from Alaska, posed the only question regarding Arctic issues- what the treaty would mean for the current US and Canada disagreement regarding the Northwest passage. Currently, the United States views the Northwest passage as an international waterway that does not fall under the sovereignty of any one country. Canada, who claims sovereignty over several Arctic Islands (Canadian Arctic Archipelago), also claims sovereignty over the Northwest Passage. With the potential opening of the Northwest passage due to global warming, it will be important to determine who has sovereignty over the waters, including rights to regulating navigation and to seabed and living resources.

The regulation of land-based pollution was another concern of several members of the Committee. In the Law of the Sea Convention, states are required to take measures to prevent the release of pollution from land based sources that can enter the ocean from the atmosphere or by dumping from a boat. It could be argued that since emissions add more CO2 into the atmosphere, and more CO2 in the atmosphere leads to increased uptake of CO2 by the oceans (acidification), then CO2 emissions are a form of ocean pollution. These Senators are afraid that other countries will try to hold the US accountable for its CO2 emissions not through the Kyoto Protocol, which addresses emissions, but through the land-based pollution clause in the Law of the Sea Convention. Currently, this is happening in the UK and several senators expressed concern that it would inevitably happen to the US with ratification of the Convention.

The other unusual concern of interest was the issue of taxes on resources mined in high seas areas. Under the Law of the Sea Convention, there is a tax of up to 7%, on resource extraction in high seas areas after seven years. The taxes collected from resources in the high seas, goes into a global fund, that a committee- made up of numerous members from various countries- can put to good use. Senators expressed many concerns that the US would be donating a portion of its profits without total control of where and what the money would be going towards. However, as clarified by the Deputy Secretary of the Department of State, John D. Negroponte, the taxes would begin after seven years of successfully extracting the resource, and it begins as a 1% tax. The taxes can increase up to only 7%.  He also reminded committee members that the US would have been successfully harvesting the resource for 7 years without a fee; if the US began to take mineral resources from the sea-bed and after several years, found that it wasn’t worth the time or the money, then there would be no charge. The United States would also have a member, with veto power, on the Commission that determines the cause and location for the tax money.

Many other issues regarding sovereignty and national security were addressed, of which all three testifiers insisted that ratifying the Law of the Sea Convention was in the best interest of the US to protect and enhance national security. As it currently stands, the Department of Defense, the US Navy and the Department of State all support US ratification of the treaty.  The land based pollution clause and the issues surrounding the Arctic are going to be important determinants as the Foreign Affairs Committee continues to hear testimony regarding the UN Law of the Sea Convention


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