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In November 1994, the U.N. Law of the Treaty will go into effect, with or without U.S. partic pation. 1 here are several key reasons to revisit ou decision not to sign, including the preservation of transit rights through critical straits and archipe j l ’ iagic waters—such as the Strait of Malacca— for U.S. merchant and naval vessels.
Just more than a decade ago, to the great disappointment and shock of large segments of the international community, the Reagan administration decided against signing the 1982 United Nations Convention on the Law of the Sea (UNCLOS).' This was followed several months later by the final Conference vote on the long and detailed treaty, when the United States became one of only four nations to vote against the final Convention.2 But momentous political, economic, and military changes have occurred since 1982, and many of the ideological, political, and economic issues that drove the U.S. refusal to sign the treaty have changed.
There are several key reasons why the mid-1990s will present the United States with an excellent opportunity to reevaluate its decision not to be a party to the 1982 LOS Convention. Taken together, these reasons help underscore the desirability of continuing to pursue the orderly development of the international regime of the Law of the Sea.3
► First, the Clinton administration has a common-sense obligation to evaluate all important policies affecting U.S. foreign relations. Many of the players involved in the initial decision not to subscribe to the treaty are no longer in government. Conversely, many who were part of the Carter administration—which supported the treaty—including Warren Christopher, Anthony Lake, and Sandy Berger, are back in power. This is a rare case in international events where the structure is still in place to change direction. The United States still can influence the ultimate nature of the deep- seabed mining articles and should that effort succeed, indicate its accession to the treaty. It seems, therefore, to be a very sensible time for the Clinton administration to revisit the question of U.S. participation in the Law of the Sea Convention.4 >■ The changing situation in the deep-seabed mining industry is a second reason to reexamine the U.S. decision on the treaty. The predictions of a major boom in the mining of minerals, such as cobalt, manganese, nickel, and copper from
-seabed nodules were early—by decades.5 The like- •nood of economically feasible deep-seabed mining ocCurring in the next several decades appears remote because of the availability of land-based supplies, the Production of substitutes in some products and applica- 10ns, and the resulting lack of economic viability of such eeP-seabed projects.6 Should seabed mining of nodules ®ver become of genuine strategic importance to the United fates, plentiful quantities are expected to be available ^■thin the U.S. exclusive economic zone.7 Inasmuch as e deep-seabed provisions of the treaty were the major jection of the Reagan administration, this new economic °utlook should have an impact during a reevaluation.
This is not to say that many fundamental ideological and practical concerns with the deep seabed mining por- •°ns of the treaty should not be corrected. Like every- lng else, however, they must be placed in a larger con- ext.s The willingness of the developing countries involved *n the U.N. Secretary General’s Informal Consultations to ry to find a practical way to move beyond the seabed l^'ning impasse reflects a new interest among develop- lng nations to respond to market forces in formulating eco- nomie policy, along with a realization that viable mining the seabeds is still many decades away. The United tates is currently engaged in these consultations and, Nearly, needs to remain engaged.9 If it continues to be an active participant, the United States has the opportunity to work within the United Nations forum to eliminate bailed seabed mining provisions that are or will soon be 0utdated and defer consideration of detailed implement- fag regulations until there is real interest in beginning . eeP-seabed mining.10 Perhaps the best consensus approach that advocated by former U.S. representative to UNCLOS III, Ambassador Elliot Richardson. He has sug- §ested that there is a real opportunity to leave the mechanics of ocean mining to that future time and to concentrate now on agreed upon principles.11 . A third reason to reexamine the Law of the Sea treaty 15 fhe growing U.S. rapprochement with many segments °f the developing world. This has been brought about by a variety of factors, including the end of the Cold War, a growing appreciation in the developing world of the benefits of U.S.-style capitalism, the growing democratization of many developing countries, and a more dynamic fAS. policy toward regional problems. This trend is likely f° continue as we recognize that our interests in the Third World are “important and durable,” and that our interactions in the Third World will tend to be more of a humanitarian and relief nature than the polarized standoffs °f the 1950s-1980s.12
^ A fourth reason for a U.S. reevaluation of the treaty is fhe building global consensus on the management of the environment. Part XII of the 1982 UNCLOS treaty deals extensively with protection and preservation of the ma- fine environment, covering issues such as global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liabil- ffy.13 The inclusion of strong environmental-protection measures in the Convention was an early and enduring goal of the United States. The language of Part XII creates an effective international mechanism for controlling a significant amount of marine pollution; therefore, it
would seem especially critical for the United States to reevaluate its position on the treaty.14
> A fifth reason for reexamination of the treaty is the changing global security environment. There are several macrotrends at work that will place an even greater premium on freedom of the seas and maritime flexibility and mobility in the future. These include dwindling access to overseas bases and overflight rights for the United States, continuing instability in various parts of the world requiring U.S. naval presence, and growing naval power on the part of developing nations with regional ambitions. Taken together, it appears that these trends will increase the requirements for U.S. naval mobility and make the need for a firmly stated and fully accepted compact defining maritime and naval mobility all the more necessary.15 While the current lack of an established global regime has not resulted in any overt denial of U.S. transit rights through straits or archipelagic waters, small but not insignificant problems in this area are manifesting themselves. It is likely that a universally recognized treaty could preclude such problems.
> The sixth reason for a review is the decrease in size of the U.S. Navy. As challenges to unhampered use of the oceans occur, it will be the Navy that will shoulder the lion’s share of the responsibility to enforce U.S. desires. The four pillars of both the National Security Strategy and the National Military Strategy—strategic deterrence, forward presence, crisis response, and force reconstitution— require active engagement by the U.S. Navy.16 Concurrently, challenges to U.S. naval mobility would most likely come from archipelagic states or from maritime-oriented coastal states.17 Clearly, we will have much more austere forces to deal with these growing responsibilities. These challenges very likely would be lessened by U.S. accession to a fully agreed upon treaty.
> A seventh reason for a timely review of the treaty is the growing political, economic, and military costs of our Freedom of Navigation (FON) Program. This program, initiated by the Carter administration in 1979 and continued under Presidents Reagan, Bush, and Clinton, combines diplomatic action and operational assertion of our navigational rights by means of exercises to discourage state claims inconsistent with the 1982 LOS Convention and to demonstrate U.S. resolve to protect navigational freedoms reflected in that agreement.18
Throughout the 1980s, with a substantial Navy, the FON program worked reasonably well. Today, the environment has changed significantly. Conducting 30-40 FON assertions per year with reduced naval and air forces may reduce the operational flexibility of our military forces— and the number of claims by coastal and island states to sovereignty and jurisdiction over ocean areas that are inconsistent with the terms of the 1982 LOS Convention are increasing.
These excessive claims are cause for concern both because they cover the full range of maritime possibilities and because they are being made, not by anti-U.S. blocs such as the former Warsaw Pact or ideologically antagonistic nations, but by the full community of nations. They range from Italy’s noncomplying historic bay claims, to Canada’s excessive baseline claims, to Indonesia’s restrictive archipelagic sea lanes passage claims, to Peru’s
I
restrictions on aircraft overflight, to Spain’s restrictive international straits passage regime, and many others.19
Continuous U.S. challenges to these claims will require significant effort. The financial and diplomatic costs, as well as the overall risks associated with use of such forces, are likely to be substantially higher in the absence of a specific, binding treaty, and the long-term effectiveness of challenge programs remains questionable.20
Many of the nations making claims that the United States considers excessive assert that the Convention is a legal contract, the rights and benefits of which are not necessarily available to nonparties. The continual counterassertion by the United States that these rights and benefits are embodied in customary international law may be difficult to sustain.
>• A final reason for a review of the treaty by the United States is the position of this nation as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world’s leading oceanic state. U.S. refusal to sign a document widely regarded as one of the most important agreements ever negotiated may raise fundamental questions regarding not only the future legal regime applicable to the world’s oceans, but also regarding the leadership of the United States with respect to the promotion of international law and order.21
By actively promoting “leadership for peace” in the politically and economically important area of an orderly codification of maritime laws and regulations, the United States could ensure itself a major role in shaping a posthegemonic global order in which it would continue to be the dominant power.22 Conversely, U.S. opposition to the Convention not only jeopardizes substantial U.S. interests in the treaty without any offsetting benefit, but also—in the eyes of some commentators—could constitute an implicit rejection of the promotion of world order through international law as a foreign policy goal. Failure of the U.S. to fully support the Convention, some believe, could reflect a belief that unilateralism is a viable policy alternative when backed by military force.23
When all is said and done, the United States is a maritime nation tied to the oceans and the intelligent use of the seas for political, economic, and military purposes. We have the most to gain from stability in laws governing the use of the seas, and this stability over the long term can best be protected by a widely ratified Law of the Sea Convention. Accession to the Convention by the United States will not be a panacea; its rules are not perfect. But widespread ratification is likely to increase order and predictability, encourage accommodation of interests, narrow the scope of disputes to more manageable proportions, and provide means to resolve them.'1
There is a finite period left to accomplish a U.S. review of, and ultimate accession to, the Law of the Sea Convention. On 16 November 1993, Guyana became the 60th nation to ratify the treaty. In accordance with the treaty ratification provisions, it will go into ellect one year Irom that date.25 Clearly, having the treaty go into effect without active U.S. participation would leave us as an outsider looking in at a completed process and would not be in our best interests politically, economically, or militarily. Viewed in this context, review of the treaty by the United States is indeed compelling.
‘Ambassador James Malone, "Who Needs the Sea Treaty," Foreign Affairs, Sprite 1984, p. 44. Ambassador Malone served in a number of capacities as a Reag311 administration expert on the Law of the Sea.
‘Ambassador James Malone, Special Representative of the President for thL Third Law of the Sea Conference, before the House Foreign Affairs Subcoin [T1I‘ tee on 12 August 1982 in Law of the Sea and Oceans Policy, July-August 198-- U.S. Department of State, Bureau of Public Affairs, Washington, DC (Current P° , icy, No. 416), p. 2. The other three countries voting against the treaty’s adopt»°n | were Israel, Turkey, and Venezuela. The United Kingdom, the Federal Repuhl'c , of Germany, Belgium, Netherlands, Luxembourg, Italy, Spain, Thailand, and entire Soviet bloc except Romania abstained.
Thomas Clingan, Jr., “The Law of the Sea in Perspective: Problems of States N°l Party to the Law of the Sea Treaty,” German Yearbook of International Law,
30, 1987, p. 109.
4Council on Ocean Law, Oceans Policy News, January 1993.
'Interviews with mineral analysts at the U.S. Bureau of Mines, Center for Ocean Law staff, and geological survey analysts at the U.S. Department of the Interior- Washington, DC, May 1988. \
Ted McDorman, “Will Canada Ratify the Law of the Sea Convention?” San Diet0 Law Review, Volume 25, 1988, p. 540.
’Panel on the Law of Ocean Uses, “U.S. Interests and the United Nations Con* vention on the Law of the Sea,” Ocean Development and International Law,
21, 1990, p. 373.
"James Morell, The Law of the Sea: An Historical Analysis of the 1982 Treaty ^
Its Rejection by the United States (Jefferson, NC: McFarland and Company, 1992)- p. 206.
Panel on the Law of Ocean Uses, United States Interests in the Law of the Stf , Convention, November 1992.
"'Panel on the Law of Ocean Uses, 1990, p. 375. I
''Council on Ocean Law, Oceans Policy News, supplement to the January 199" issue. Remarks by Elliot Richardson, “Beyond the Law of the Sea: Prospects f°r a Sustainable Ocean Environment,” at the National Forum on Ocean Conserve' tion, National Museum of Natural History, 21 November 1991.
Michael O Hanlon, The Art of War in the Age of Peace: U.S. Military Pos turf for the Post-Cold War World (Westport, CT: Greenwood Publishers, 1992), p- ^
O Hanlon concludes that, barring an extraordinary military buildup of an estab' , lished power such as Iran, Iraq, or India, the prospects of a large-scale U.S. mil' itary conflict in the Third World is not high.
R. R. Churchill and A. V. Lowe, The Law of the Sea (Manchester, UK: Univef' sity Press, 1983), p. 217.
Morell, p. 200. This need for cooperation in attempts to stem marine pollution was noted in statement by President Richard Nixon at the beginning of the UNCLOS III process: “It is not possible for any nation, acting unilaterally, to en' sure adequate protection of the marine environment. Unless there are firm min'* mum international standards, the search for relative economic advantage wil* preclude effective environmental protection.”
Fied Iklc and Albert Wohlstetter, Discriminate Deterrence: Report of the Coni' - mission on Integrated Long Range Strategy (Washington, DC: USGPO, 1988).
See National Security Strategy of the United States (The White House: USGPO- 1992) and National Military Strategy of the United States (Washington, DC: 19921In discussing these four pillars, both President Bush and Chairman of the Join1 Chiefs of Staff General Colin Powell placed a strong premium on the use of the U.S. Navy in all pillars of the strategy and along the full spectrum from peace to war.
Cdr. John Meyer, USN, “The Impact of the Exclusive Economic Zone on Naval | Operations,” Naval Law Review, Vol. 40, 1992, p. 248.
Department of State Publication 112: Limits in the Seas: United States Responses I t°Exci?ssive Maritime Claims (Washington, DC: USGPO, 1992), p. 1. t [
See U.S. Interests and the United Nations Convention on the Law of the Sea. Ocean Development and International Law, Vol. 21, 1990; Cdr. Sam Bateman, i RAN, Build a Westpac Naval Alliance,” U.S. Naval Institute Proceedings, January 1993; and Limits in the Seas.
“Morell, p. 195.
2lMorell, p. xiv.
Joshua Goldstein, Long Cycles: Prosperity and War in the Modern Age (New \ Haven, CT: Yale University Press, 1988) p. 268.
Morell, p. 206. Admittedly, Morell represents a minority view. His book is replete with particularly strong statements regarding the failure of the United States to accede to the Convention, including: “The U.S. policy appears to be founded on the unproven and undemocratic assumption, traditionally predominant within the Soviet Union rather than the United States, that nation-states are una e to overcome self-interest through enlightened cooperation.”
- Panel on the Law of Ocean Uses, 1990, p. 378.
Communication with Mr. Charles Higginson, Executive Director, Council on , Ocean Law, 10 November
Captain Galdorisi is Commander, Amphibious Squadron Seven. He previously commanded the USS Cleveland (LPD-7) and LAMPS Mk III squadrons HSL-41 and HSL-43. A graduate of the U.S. Naval Academy, Naval Postgraduate School, Naval War College, and MIT’s Program for Senior Executives, he holds a master’s degree in oceanography and international relations.